Magnus/Mankowski, European Commentaries on Private International Law: Brussels IIter Regulation 9783504388218

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

European Commentaries on Private International Law

ECPIL

Commentary Volume IV

Brussels IIter Regulation 2023

edited by

Ulrich Magnus Peter Mankowski

To be cited as: Magnus/Mankowski/Author, Brussels IIter Regulation (2023), 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) 978-3-504-08020-4 ISBN (eBook) 978-3-504-38821-8 ©2023 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. Typesetting: WMTP GmbH, Birkenau Printing and binding: Beltz Grafische Betriebe GmbH, Bad Langensalza Printed in Germany.

Authors of Brussels IIter Regulation Brussels IIter Regulation of the series European Commentaries on Private International Law edited by Ulrich Magnus and Peter Mankowski is written by Introduction

Magnus/Mankowski

Arts. 1–2

Pintens

Arts. 3–6

Ní Shúilleabháin

Arts. 7–14

Garber

Art. 15

Pertegás Sender

Arts. 16–20

Mankowski

Art. 21

Garber

Arts. 22–29

Gallant

Arts. 30–37

de Lima Pinheiro

Arts. 38–41

Lazic´

Arts. 42–50

Magnus

Arts. 51–63

Cuniberti

Arts. 64–68

Fra˛ckowiak-Adamska

Arts. 69–75

Queirolo/Dominelli

Arts. 76–84

Knöfel

Arts. 85–91

Stamatiadis/Tsantinis

Arts. 92–99

Calvo Caravaca/Cebrián Salvat

Arts. 100–105

Mankowski

V

List of Authors Professor Dr. Alfonso-Luis Calvo Caravaca Area de derecho internacional privado de Universidad Carlos III de Madrid Dr. María-Asunción Cebrián Salvat Lecturer of Private international law, Universidad de Murcia Professor Dr. Gilles Cuniberti, LL.M. (Yale) Université de Luxembourg Assistant Professor Dr. Stefano Dominelli Researcher in International Law, University of Genoa University Professor dr. hab. Agnieszka Fra˛ckowiak-Adamska Professor at the Chair of International and and European Law at the Faculty of Law, Administration and Economics at the University of Wrocław Professor Dr. Estelle Gallant Université Toulouse Capitole – IRDEIC Professor Dr. Thomas Garber Institut für Zivilverfahrensrecht und Insolvenzrecht Professor Dr. Oliver L. Knöfel Lehrstuhl für Bürgerliches Recht sowie Europäisches und Internationales Privatrecht, Juristische Fakultät, Europa-Universität Viadrina Juristische Fakultät Frankfurt (Oder) Associate Professor Dr. Vesna Lazic´ Associate Professor, Utrecht University, Senior Researcher, T.M.C. Asser Institute Professor Doutor Luís Pedro Rocha de Lima Pinheiro Faculdade de Direito da Universidade de Lisboa, Centro de Investigação de Direito Privado 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 Associate Professor Dr. Máire Ní Shúilleabháin Sutherland School of Law, University College Dublin Professor Dr. Marta Pertegás Sender Chair Private International Law and Transnational Law, Maastricht University; Antwerp University and Visiting Professor University of Johannesburg Professor Dr. Walter Pintens Faculty of Law, Department of Private Law, Katholieke Universiteit Leuven Professor Dr. Ilaria Queirolo Professor of International law, University of Genoa Assistant Professor Dr. Dimitrios K. Stamatiadis Assistant Professor of Private International Law and Comparative Law, Faculty of Law, Democritus University of Thrace Professor Dr. Spyros K. Tsantinis Professor of Law – Democritus University of Thrace VI

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 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

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Foreword This Preface must start with a very sad message: my good friend, wonderful colleague and co-editor Peter Mankowski passed away in February 2022. His death at the age of only 55 was entirely unexpected and leaves so many and also me in deep mourning. Peter had still completed all of his contributions to this edition of the Brussels IIter Regulation. The series of our commentaries will continue to carry his name and preserve the memory of this extraordinary scientist and person. I am glad that my son Robert, Professor at the University of Bayreuth, has agreed to take over the co-editorship. The Brussels IIter Regulation entered into force on 1 August 2022. Peter’s special wish was to publish this volume as soon as possible to this date. All authors and the publisher must be thanked for doing their very best to reach this goal as far as possible. The Brussels IIter Regulation like its immediate predecessor, the Brussels IIbis Regulation, is probably the most important act on international family law, certainly within Europe. The Brussels IIbis Regulation had dramatically changed the law and the practice of the law for families with connections with more than one EU Member State. The changes the Brussels IIter Regulation brings about are less dramatic. The present Regulation primarily intends to improve the rules of the former Regulation, for instance on the child’s right to be heard, and specify them more precisely. In a Commentary that assembles a team of top experts from all over Europe a certain fluctuation from edition to edition is almost unavoidable. It is a great loss that Alegría Bórras and Jörg Pirrung passed away. Also, Christina M. Mariottini, David McClean, Peter McEleavy, Étienne Pataut and Kurt Siehr could no longer contribute to the Commentary.Their parts were taken over by Alfonso-Luis Calvo Caravaca, Asunción Cebrián Salvat, Gilles Cuniberti, Stefano Dominelli, Agnieszka Fra˛ckowiak-Adamska, Thomas Garber, Oliver L. Knöfel, Vesna Lazic´, Máire Ní Shúilleabháin, Ilaria Queirolo, Dimitrios K. Stamatiadis and Spyros K. Tsantinis. Many further persons were involved in the production of the Commentary to whom deep thanks are owed: in the first line, the backing team at Hamburg, namely Svenja Langenhagen und Charlotte Waterkotte, but also Professor Oliver Knöfel (University of Frankfurt/Oder) and his team who initially compiled the Tables of Cases. Attorney-atlaw Patrick Zobel initially compiled the Index. Secretarial support was rendered by Helga Jacobi and last but not least the always helpful Publisher’s Team in Munich. Without all their help it would have been virtually impossible to complete this commentary. Hamburg, in November 2022

VIII

Ulrich Magnus

Table of Contents page

Authors of Brussels IIter Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

V

List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VI

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VII

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VIII

List of Principal Works and Monographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

XV

Additional Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

XVII

List of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

XXIII

Brussels IIter Regulation Council Regulation (EU) No 2019/1111 of 25 June 2019 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

Chapter I Scope and Definitions (Art. 1–Art. 2) Article 1 Article 2

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 92

Chapter II Jurisdiction in Matrimonial Matters and in Matters of Parental Responsibility (Art. 3–Art. 21) Section 1 Divorce, legal separation and marriage annulment (Art. 3–Art. 6) Article 3 Article 4 Article 5 Article 6

General jurisdiction . . . . . . . . . . . . . . Counterclaim . . . . . . . . . . . . . . . . . . Conversion of legal separation to divorce Residual jurisdiction . . . . . . . . . . . . .

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100 116 118 119

General jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Continuing jurisdiction in relation to access rights . . . . . . . . . . . . . . . . Jurisdiction in cases of the wrongful removal or retention of a child . . . . . . Choice of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jurisdiction based on presence of the child . . . . . . . . . . . . . . . . . . . . . . Transfer of jurisdiction to a court of another Member State . . . . . . . . . . . Request for transfer of jurisdiction by a court of a Member State not having jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Residual jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provisional, including protective, measures in urgent cases . . . . . . . . . . . Incidental questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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125 144 156 169 184 192

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211 213 217 226

Section 2 Parental responsibility (Art. 7–Art. 16) Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16

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Section 3 Common provisions (Art. 17–Art. 21) Introduction to Articles 17–20 . . . . . . . . . . . . . . . . . . Article 17 Seising of a court . . . . . . . . . . . . . . . . . Article 18 Examination as to jurisdiction . . . . . . . . . Article 19 Examination as to admissibility . . . . . . . . Article 20 Lis pendens and dependent actions . . . . . . Article 21 Right of the child to express his or her views

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234 243 261 269 278 309

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314 316 318 319 322 323 324 331

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Chapter III International Child Abduction (Art. 22–Art. 29) Introduction to Articles 22–29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 22 Return of the child under the 1980 Hague Convention . . . . . . . . . Article 23 Receipt and processing of applications by Central Authorities . . . . . Article 24 Expeditious court proceedings . . . . . . . . . . . . . . . . . . . . . . . . Article 25 Alternative dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . . Article 26 Right of the child to express his or her views in return proceedings . Article 27 Procedure for the return of a child . . . . . . . . . . . . . . . . . . . . . . Article 28 Enforcement of decisions ordering the return of a child . . . . . . . . Article 29 Procedure following a refusal to return the child under point (b) of Article 13(1) and Article 13(2) of the 1980 Hague Convention . . . .

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Chapter IV Recognition and Enforcement (Art. 30–Art. 75) Section 1 General provisions on recognition and enforcement (Art. 30–Art. 41) Introduction to Articles 30–37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

339

Subsection 1 Recognition (Art. 30–Art. 33) Article 30 Article 31 Article 32 Article 33

Recognition of a decision . . . . . . . . . . . Documents to be produced for recognition Absence of documents . . . . . . . . . . . . . Stay of proceedings . . . . . . . . . . . . . . .

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354 357 360 362

Enforceable decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Documents to be produced for enforcement . . . . . . . . . . . . . . . . . . . . . . .

364 365

Subsection 2 Enforceability and enforcement (Art. 34–Art. 35) Article 34 Article 35

Subsection 3 Certificate (Art. 36–Art. 37) Article 36 Article 37

Issuance of the certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rectification of the certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

367 369

Subsection 4 Refusal of recognition and enforcement (Art. 38–Art. 41) Article 38 Article 39 Article 40 Article 41

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Grounds for refusal of recognition of decisions in matrimonial matters Grounds for refusal of recognition of decisions in matters of parental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for refusal of recognition . . . . . . . . . . . . . . . . . . . . . . . Grounds for refusal of enforcement of decisions in matters of parental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Section 2 Recognition and enforcement of certain privileged decisions (Art. 42–Art. 50) Introduction to Articles 42–50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 42 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

401 406

Subsection 1 Recognition (Art. 43–Art. 44) Article 43 Article 44

Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

413 420

Subsection 2 Enforceability and enforcement (Art. 45–Art. 46) Article 45 Article 46

Enforceable decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Documents to be produced for enforcement . . . . . . . . . . . . . . . . . . . . . . .

424 427

Subsection 3 Certificate for privileged decisions (Art. 47–Art. 49) Article 47 Article 48 Article 49

Issuance of the certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rectification and withdrawal of the certificate . . . . . . . . . . . . . . . . . . . . . . Certificate on lack or limitation of enforceability . . . . . . . . . . . . . . . . . . . . .

432 444 449

Subsection 4 Refusal of recognition and enforcement (Art. 50) Article 50

Irreconcilable decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

452

Section 3 Common provisions on enforcement (Art. 51–Art. 63) Subsection 1 Enforcement (Art. 51–Art. 55) Article 51 Article 52 Article 53 Article 54 Article 55

Enforcement procedure . . . . . . . . . . . . . . . Authorities competent for enforcement . . . . . . Partial enforcement . . . . . . . . . . . . . . . . . . Arrangements for the exercise of rights of access Service of certificate and decision . . . . . . . . .

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460 463 464 467 469

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473 477 479 481 483 484 486 488

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492 495 499 502 504 505

Subsection 2 Suspension of enforcement proceedings and refusal of enforcement (Art. 56–Art. 63) Article 56 Article 57 Article 58 Article 59 Article 60 Article 61 Article 62 Article 63

Suspension and refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grounds for suspension or refusal of enforcement under national law . . Jurisdiction of authorities or courts competent for refusal of enforcement Application for refusal of enforcement . . . . . . . . . . . . . . . . . . . . . . Expeditious procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Challenge or appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further challenge or appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 4 Authentic instruments and agreements (Art. 64–Art. 68)

Introduction to Articles 64–68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 64 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 65 Recognition and enforcement of authentic instruments and agreements Article 66 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 67 Rectification and withdrawal of the certificate . . . . . . . . . . . . . . . . Article 68 Grounds for refusal of recognition or enforcement . . . . . . . . . . . . .

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Section 5 Other provisions (Art. 69–Art. 75) Article 69 Article 70 Article 71 Article 72 Article 73 Article 74 Article 75

Prohibition of review of jurisdiction of the court of origin . Differences in applicable law . . . . . . . . . . . . . . . . . . . Non-review as to substance . . . . . . . . . . . . . . . . . . . . Appeal in certain Member States . . . . . . . . . . . . . . . . . Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Security, bond or deposit . . . . . . . . . . . . . . . . . . . . .

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507 515 519 524 528 534 538

Introduction to Articles 76–84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 76 Designation of Central Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 77 General tasks of Central Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 78 Requests through Central Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . Article 79 Specific tasks of requested Central Authorities . . . . . . . . . . . . . . . . . . . . Article 80 Cooperation on collecting and exchanging information relevant in procedures in matters of parental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 81 Implementation of decisions in matters of parental responsibility in another Member State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 82 Placement of a child in another Member State . . . . . . . . . . . . . . . . . . . . Article 83 Costs of Central Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 84 Meetings of Central Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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542 551 556 561 565

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595 596 597 598 600 601 603

Introduction to Articles 92–93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 92 Amendments to the Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 93 Exercise of the delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

604 606 609

Chapter V Cooperation in Matters of Parental Responsibility (Art. 76–Art. 84)

Chapter VI General Provisions (Art. 85–Art. 91) Article 85 Article 86 Article 87 Article 88 Article 89 Article 90 Article 91

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cooperation and communication between courts Collection and transmission of information . . . . Notification of the data subject . . . . . . . . . . . . Non-disclosure of information . . . . . . . . . . . . Legalisation or other similar formality . . . . . . . Languages . . . . . . . . . . . . . . . . . . . . . . . . .

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Chapter VII Delegated Acts (Art. 92–Art. 93)

Chapter VIII Relations with other instruments (Art. 94–Art. 99) Introduction to Articles 94–99 . . . . . . . . . . . . . . . . . . . . Article 94 Relations with other instruments . . . . . . . . . . Article 95 Relations with certain multilateral conventions . Article 96 Relation with the 1980 Hague Convention . . . .

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611 618 628 632

Table of Contents page

Article 97 Article 98 Article 99

Relation with the 1996 Hague Convention . . . . . . . . . . . . . . . . . . . . . . . . . Scope of effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Treaties with the Holy See . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

635 643 644

Chapter IX Final provisions (Art. 100–Art. 105) Article 100 Article 101 Article 102 Article 103

Transitional provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Monitoring and evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Member States with two or more legal systems . . . . . . . . . . . . . . . . . . . . Information to be communicated to the Commission Information on central authorities and languages accepted . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 104 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 105 Entry into force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. .. ..

645 652 655

.. .. ..

657 660 662

Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

665

Table of Cases European Court of Justice (ECJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Court of Human Rights (ECHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

667 680

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

683

XIII

List of Principal Works and Monographs Referred to by Author Alone Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007) 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/Castellanos Ruiz, Derecho de familia internacional (3rd Madrid 2005) 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) Garber/Lugani (eds.), Die Brüssel IIb-Verordnung (2022), zit. als Schlauß/Fucik in Garber/Lugani, note 16/1 Gallant, Responsabilité parentale et protection des enfants en droit international privé (Paris 2004) Geimer/Schütze, Europäisches Zivilverfahrensrecht (4th ed. München 2020) 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) 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) Layton/Mercer, European Civil Practice (2nd ed. London 2004) Lowe/Everall/Nicholls, International Movement of Children (2nd ed. 2016) Magnus/Mankowski, Brussels Ibis Regulation (Köln 2022) Malatesta/Bariatti/Pocar (eds.), The External Dimension of EC Private International Law in Family and Succession Matters (Padova 2008) Nagel/Gottwald, Internationales Zivilprozessrecht (8th ed. Köln 2020) 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) XV

List of Principal Works and Monographs

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 (5th ed. Köln 2021), vol. II-1 (5th ed. Köln 2022) 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 (Köln/Berlin 2016) 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 (41st ed. München 2020) 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 (34th ed. Köln 2022)

XVI

Additional Biblography Articles D’Alessandro, The Impact of Private Divorces on EU Private International Law, in: Scherpe/Bargelli (eds.), Family Law, Succession Law and Private International Law (2021), p. 59 Althammer, Die Brüssel IIa-VO in neuem Gewand – ein Quantensprung?, NZFam 21/2019, III Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in: Thomas Pfeiffer/Lobach/Tobias Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13 Antomo, Der Umgang mit Privatscheidungen aus EU-Mitgliedstaaten – vor und nach der Reform der Brüssel IIa-VO, in: Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (Hrsg.), Neue Impluse im europäischen Familienkollisionsrecht (2021), p. 81 Arenas García, Construyendo la confianza mutua, in: Liber amicorum José Maria Espinar Vicente (2020), p. 139 Balthasar-Wach, Die Justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020) Beaumont/Trimmings, Court of Justice of the European Union’s Case Law on Family Matters Under Brussels IIa and Maintenance, in: Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 711 Beaumont/Lara Walker/Holliday, Parental responsibility and international child abduction in the proposed recast of the Brussels Iia Regulation and the effect of Brexit on future child abduction proceedings, [2016] IFL 307 Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021) Bernardo San José, Las normas de competencia internacional en materia de responsibilidad parental en el Reglamento (UE) 2019/1111 del consejo de 25 de junio del 2019, Cuad. Der. Trans. 12 (2) (2020), 1243 Sara Bernasconi, The application of Brussels IIa to the circulation of out-of-court and private divorces within the European Area of Justice: current difficulties and future perspectives, in: Esplugues Mota/Diago Diago/Jiménez Blanco (eds.), 50 años de Derecho internacional privado de la Unión Europea en el diván (2019), p. 329 Biagioni, Il nuovo regolamento (UE) 2019/1111 relativo alla competenza, al riconoscimento e all’esecuzione delle decisioni in materia matrimoniale e di responsabilità genitoriale, e all sostrazione internazionale, Riv. dir. int. 2019, 1169 Biagioni/Carpaneto, Children under Brussels II ter Regulation, YbPIL 22 (2020/21), 139 Blackburn/Michaelides, The advent of Brussels II bis Recast [2019] IFL 252 ´ skich I rodzinnych – rozporza˛dzenie Rady (UE) Bobrzyn´ska, Nowa unijna regulacja spraw małz˙en 2019/1111, Kwartalnik Prawa Prywatnego 2020, 511 Bobrzyn´ska, Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility, Polski Proces Cywilny 2021, 593 De Boer, What we should not expect from a recast of the Brussels IIa Regulation, NIPR 2015, 10 Bonomi, La compétence internationale en matière de divoce, quelques suggestions pour une (improbable) révision du règlement Bruxelles II bis, RCDIP 2017, 511 Borrás, Grounds of jurisdiction in matrimonial matters: recasting the Brussels IIa Regulation, NIPR 2015, 3 Borrás, The substantive scope of application of European instruments in matrimonial matters, in: Liber amicorum Christian Kohler (2018), p. 23 Borrás, Bruselas II, Bruselas II bis, Bruselas II ter, REEI 38 (dic. 2019) http://www.reei.org/index.php/ revista/num38/tribuna Borrás, La sustracción internacional de menores del Convenio de La Haya de 1980 al Reglamento Brussels IIter, in: Liber amicorum José Maria Espinar Vicente (2020), p. 159 XVII

Additional Biblography

Calzado Llamas, Las medidas cautelares y provisionales en los proceddemientos de restitución de menors: análisis del Reglamento (UE) 2019/1111 en conexión con el ordenamiento jurídico español, Cuad. Der. Trans. 13 (1) (2021), 87 Campuzano Díaz, La propuesta de reforma del Reglamento 2201/2003: >se introducen mejoras en la regulación de la competencia judicial internacional?, in: Guzmán Zapater/Esplugues Mota (dirs), Persona y familia en el nuevo modelo Español de Derecho internacional privado (2017), p. 91 Campuzano Díaz, El nuevo Reglamento (UE) 2019/1111: análisis de las mejoras en las relaciones con la Convenio de La Haia de 19 de octubre de 1996 sobre responsabilidad parental, Cuad. Der. Trans. 12 (1) (2020), 97 Campuzano Díaz, Los acuerdos de elección de foro en materia de responsabilidad parental: un análisis del Art. 10 del Reglamento (UE) 2019/1111, REEI 40 (dic. 2020) http://www.reei.org/index. php/revista/num40/articulos/acuerdos-eleccion-foro-materia-responsabilidad-parental-analisis-art10-reglamento-ue-20191111 Carpaneto, La ricerca di una (nuova) sintesi tra intresse superiore del minore “in astratto” e “in concreto” nella riforma del regolamento Bruxelles II-bis, RDIPP 2018, 974 Carpaneto, The Impact of the Best Interests of the Child on the Brussels IIter Regulation, in: Bergamini/Ragni (eds.), Fundamental Rights and Best Interests of the Child in Transnational Families (2019), p. 265 Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung “Brüssel IIa”, FamRZ 2015, 241 Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du ter(rain), RCDIP 2020, 215 Curry-Sumner, The revision of Brussels IIbis, NIPR 2015, 1 Deuschl, Kindesentführungen: Das Zusammenspiel HKÜ und VO 2019/1111, NZFam 2021, 149 Dutta, Privatscheidungen und Brüssel IIb: Drei Fragen an den neuen Art. 65 Abs. 1, FamRZ 2020, 1428 Erb-Klünemann/Niethammer-Jürgens, Die neue Brüssel IIa-VO, FamRB 2019, 454 Erb-Klünemann, Einvernehmliche Lösungen in Kindesnetführungssachen zwischen der Brüssel IIbVO und dem HKÜ, in: Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (Hrsg.), Neue Impluse im europäischen Familienkollisionsrecht (2021), p. 25 Esplugues Mota, El Reglamento Bruselas II Ter y el recurso a los MASC en materia de responsabilidad parental y sustracción internacional del menores, Cuad. Der. Trans. 13 (2) (2021), 132 Forcada Miranda, Revision with respect of the cross-border placement of children, NIPR 2015, 36 Forcada Miranda, Comentarios prácticos als Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020) Fra˛a˛ckowiak-Adamska, No Deal Better than a Bad Deal – Child Abduction under the Brussels IIa Regulation, in: Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 755 Frohn, Herschikking Brussel II-bis, NIPR 2016, 441 Frohn, Herschikking Brussel II-bis is in zicht!, FJR 2019, 16 Frohn/Sumner, Herziening Brussel IIbis: beschrijving van de nieuwe regeling, NIPR 2020, 391 Frohn/Sumner, International family law and PIL, NIPR 2021, 667 Gallant, Le nouveau Règlement “Bruxelles II ter”, AJ fam. 2019, 401 Gandía Sellens, El responsibilidad parental y la sustracción de menores en la propuesta de la Comisión para modificar el RBIIbis: algunos avances, retrocesos y ausencias, AEDIPr XVII (2017), 799 Garber, Neuerungen im Ehe- und Familienrecht: Zur Revision der Brüssel IIa-VO und zu den Güterrechtsverordnungen, in: Bernhard König/Peter G. Mayr (Hrsg.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109 Garber, Flüchtlinge und die Brüssel IIa-VO, in: Liber amicorum Edwin Gitschthaler (2020), p. 77

XVIII

Additional Biblography

Garber/Neumayr, Ein neues System des einstweiligen Rechtsschutzes in Europa – Einstweilige Maßnahmen nach der Brüssel IIb-Verordnung, in: FS Roderich C. Thümmel (2020), p. 171 Godechot-Patris, De quelques enseignements concernant le nouveau règlement Bruxelles IIter …, D. 2019, 1824 González Beilfuss, La sustracción de menores en el nuevo Reglamento 2019/1111, in: Homenaje José Carlos Fernández Rozas (2020), p. 383 González Beilfuss, Prorogation of Jurisdiction in Parental Responsibility Matters under Regulation (EU) No. 2019/1111, in: Liber amicorum Monika Pauknerová (2021), p. 169 González Beilfuss, What’s New in Regulation (EU) 2019/1111?, YbPIL 22 (2020/21), 95 González Beilfuss, Choice of court and residual jurisidiction in divorce: a plea for reform that is not expected any time soon?, NIPR 2021, 701 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/reunionstra vail/Reunion%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 http://www.gedip-egpil.eu/documents/Milan%202016/ Bx2b-ResPar-ENG-Final2.pdf Urs Peter Gruber/Laura Möller, Die Neufassung der Brüssel IIa-VO, IPRax 2020, 393 Heiderhoff, Art. 15 EuEheVO, das Kindeswohl und die EuEheVO 2019, IPRax 2019, 521 Hess, Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?, Polski Proces Cywilny 2021, 523 Honorati, La proposta di revisione del regolamento Bruxelles II-bis: più tutela per I minori e più efficacia nell’esecuzione delle decisioni, RDIPP 2017, 248 Jurik, Le “nouveau” Règlement Bruxelles II ter: le changement, ce n’est pas pour maintenant!, J. Act. Dr. eur. 2019 vol. 20 https://revue-jade.eu/article/view/2934 Kakos, Parental Responsibility Affairs under Regulation (EU) 1111/2019 with Some Aspects of the Greek Code, Yb. Int. & Eur. L. 2 (2020), 149 Kramar, The Voice of the Child: Are the Procedural Rights of the Child Better Protected in the New Brussels II Regulation?, Open J. Legal Stud. 3 (2020), 87 Kramme, Private Divorce in Light of the Recast of the Brussels IIbis Regulation, GPR 2021, 101 Kruger, Habitual Residence: The Factors That Courts Consider, in: Beaumont/Danov/Trimmings/ Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 741 Kruger/Samyn, Brussels IIbis: successes and suggested improvements, (2016) 12 JPrIL 132 Lazic´, Legal Framework for International Child Abduction in the European Union- The Need for Changes in the Light of Povse v. Austria, in: Zˇupan (ed.), Private International Law in the Jurisprudence of European Courts – Family at Focus (2015), p. 295 Lazic´, Family Private International Law Issues Before the European Court of Human Rights – Lessons to Be Learned from Povse v. Austria in Revising the Brussels IIa Regulation and Its Relevance for the Future Abolition of Exequatur in the European Union, in: Paulussen/Tacazs/Lazic´/Rompuy (eds.), Fundamental Rights in International and European Law – Public and Private Law Perspectives (2016), p. 161 Lazic´, The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation, in: Iglesias Sánchez/González Pascual (eds.), Fundamental Rights in the EU Area of Freedom, Security and Justice (2021), p. 192 Lazic´, Recognition and enforcement of decisions in the revised Brussels IIbis Regulation, NIPR 2021, 729 Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, YbPIL 22 (2020/21), 155

XIX

Additional Biblography

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) http://www.europarl/ europa.eu/RegData/etudes/STUD/2015/51003/IPOL_STU(2015)51003_EN.pdf Lortie, The Hague 1996 Child Protection an 1980 Child Abudction Conventions compared with the Brussels II ter Regulation, NIPR 2021, 670 Lugani, Die Anerkennung in Ehesachen, in: Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) Lupoi, Il regolamento (Ue) n. 1111 del 2019: novità in materia matrimoniale e di responsabilità genitoriale, Riv. trim. dir. proc. civ. 2020, 575 Lupoi, Between parties’ consent and judicial discretion: joinder of claims and transfer o cases in Regulation (EU) 2019/1111, Polski Proces Cywilny 2021, 543 Mailhé, Bruxelles II, troisième génération, JCP G 2019, 1935. Makowskiy, Der Anwendungsbereich der Brüssel IIb-VO (einschließlich des Verhältnisses der Ehesachen der Brüssel IIb-VO zu internationalen Übereinkommen), in; Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) Mankowski, Charakteristika: Synoptische Betrachtung der Brüssel IIb-VO im Gefüge des sonstigen EuZPR, in: Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) Martiny, New efforts in judicial cooperation in European child abduction cases, Polski Proces Cywilny 2021, 501 Claudia Mayer, Verfahrensrechtliche Anerkennung von gerichtlichen Entscheidungen, Urkunden und Parteivereinbarungen – insbesondere von Privatscheidungen nach der neuen Brüssel IIb-VO, StAZ 2020, 193 Mellone, Provisional measures and the Brussels IIbis Regulation: an assessment of the status quo in view of future legislative amendments, NIPR 2015, 20 Musseva, The recast of the Brussels Iia Regulation: the sweet and sour fruits of unamity, ERA Forum 2020, 129 Nademleinsky, Die Privatscheidung in der Brüssel IIb-VO – eine erste Annäherung, in: Liber amicorum Edwin Gitschthaler (2020), p. 171 Nademleinsky, Internationale Kindesentführung unter der Brüssel IIb-VO, in: Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) Ní Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) No 2019/1111, YbPIL 22 (2020/21), 117 Nourissat, Retour sur le règlement 2019/1111 du 25 juin 2019 dit règlement “Bruxelles II bis refondu” ou règlement “Bruxelles II ter”, Procédures N° 1 janvier 2020 alerte 1 Pirrung, Bemerkungen zum Stand des europäischen Kollisionsrechts – insbesondere zur Brüssel IIaVerordnung und zu ihrer Reform, in: Liber amicorum Christian Kohler (2018), p. 403 Pretelli, Provisional Measures in Family Law and the Brussels Iiter Regulation, YbPIL XX (2018-2019), 113 Quirós Fons, Reforma del Reglamento Bruselas II-bis y reconocimiento de decisiones eclesiasticas en el ultimo Estado miembro de la UE, Bitácora Millenium DIPr n° 7, 2018 http://www.millennium dipr.com/ba-72-reforma-del-reglamento-bruselas-ii-bis-y-reconocimiento-de-decisiones-eclesiasti cas-en-el-ultimo-estado-miembro-de-la-ue Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in: Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) Rieck, Anwendungsprobleme der Brüssel IIa-VO, in: Pfeiffer/Josef Wittmann/Escher (Hrsg.), Europäisches Familienrecht im Spiegel deutscher Wissenschaft und Praxis (2018), p. 45 Rodríguez Pineau, La refundición del Reglamento Bruselas II bis: de nuevo sobre la función de Drecho internacional privado europeo, REDI 2017-1, 139 Rodríguez Vázquez, La reforma del Reglamento n° 2201/2003: análisis de las soluciones propuestas en materia de reconocimiento y ejecución des resoluciones, AEDIPr XVII (2017), 767 XX

Additional Biblography

Rodríguez Vázquez, La remisión y la transferencia de competencia en materia de responsabilidad parental en el Reglamento (UE) 2019/1111, Cuad. Der. Trans. 12 (2) (2020), 706 Ruiz Sutil, Implementación del Convenio de Estambul en la refundación del Reglamento Bruxelles II Bis y la repercusión en la sustracción internacional de menores, Cuad. Der. Trans. 10 (1) (2018), 615 Sánchez Jiménez, Divorcio entre conyúges del mismo sexo como paradigma de la ineludible incorporación del forum necessitatis al Reglamento Bruselas IIbis, Rev. Der. Com. Eur. 63 (2019), 407 Sánchez Jiménez, Acción de responsabilidade parental vinculada a un proceso de divocio en el nuevo Reglamento (UE) 2019/1111, REDI 2020-2, 143 Schlauß, Grenzüberschreitende Unterbringungen im EU-Ausland, ZKJ 2016, 348 Andrea Schulz, Das Vollstreckungssystem in der neuen Brüssel IIa-Verordnung, in: Budzikiewicz/ Heiderhoff/Klinkhammer/Niethammer-Jürgens (Hrsg.), Standards und Abgrenzungen im internationalen Familienrecht (2019), p. 93 Andrea Schulz, Die Neufassung der Brüssel IIa-Verordnung, FamRZ 2020, 1141 Janice M. Scott, A question of trust? Recognition and enforcement of judgments, NIPR 2015, 27 Sonnentag, Zielsetzung und Effektivität der Brüssel IIa-Verordnung aus der Sicht der Wissenschaft, in: Pfeiffer/Josef Wittmann/Escher (Hrsg.), Europäisches Familienrecht im Spiegel deutscher Wissenschaft und Praxis (2018), p. 9 Szeibert, Jurisdictional rules and the child’s best interests in the Brussels IIA Regulation and its Recast in the light of the CRC’s child-focused approach, NIPR 2021, 714 Szpunar/Pacuła, Forum necessitatis in family law matters within the framework of EU and international law, Polski Proces Cywilny 2021, 563 Étienne Thomas, La procédure de retour de l’enfant à l’aune du règlement Bruxelles 2 ter, Clunet 2020, 897 Trimmings, Matrimonial Matters Under the Brussels IIa Regulation, in: Beaumont/Danov/ Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 803 Ubertazzi, The hearing of the children in the Brussels IIa Regulation and its Recast Proposal, (2017) 13 JPrIL 568 Usunier, Droit uniforme, cuvée 2019: la quantité et la qualité?, RTD civ. 2019, 820 Lara Walker, The Potential Effect on Brexit on the Cross-Border Circulation of Private Family Law Judgments; with a Particular Focus on Questions Relating to Gender, in: Dustin/Ferreira/Millns (eds.), Gender and Queer Perspectives on Brexit (2019), p. 125 Marc-Philippe Weller, Die Reform der EuEheVO, IPRax 2017, 222 Zˇupan (ed.), Private International Law in the Jurisprudence of European Courts – Family at Focus (2015) Zˇupan/Hoehn/Ulrike Kluth, Central Authority Cooperation under the Brussels IIter Regulation, YbPIL 22 (2020/21), 183.

XXI

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

Bl. BOE BR-Drs. BT-Drs. BYIL

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 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.

Cour d’appel Court of Appeal Les cahiers de droit familial Cambridge Law Journal Cambridge Yearbook of European Law Canadian Family Law Quarterly Cour de Cassation Corte di Cassazione

BayVBl BB BBGS BC BerDGesVR BG BGB BGBl. BGE BGH BGH-Report BGHZ

XXIII

List of Abbreviations

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.

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

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

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

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

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

XXIV

List of Abbreviations

Eur. Lawyer Eur. L. Rev. Eur. L. Rptr. Europa e dir. priv. EuZ EuZW EvBl EWCA EWHC EWiR EWS

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. Fam. Dir. FamG Fam. L. Fam. L. Rev. FamPra.ch FamRZ FamZ fasc. FCR F.D. FF FG FGPrax FJR FLA FLR fn. Foro it. FPR FS FuR

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 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.

ibidem International and Comparative Law Quarterly idem XXV

List of Abbreviations

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. IR I.R. iss.

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

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 Fritz Lindenmaier/Philipp Möhring, 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

XXVI

List of Abbreviations

n. ncpc NF NGCC NILR NIPR NJ NJA NJOZ NJW NJW-RR NLCC no. Noticias UE Nr. NTBR NTER NTIR NVwZ nyr

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

Rabels Zeitschrift für ausländisches und internationales Privatrecht Rechtbank XXVII

List of Abbreviations

RBDI RCDIP 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

Revue belge de droit international Revue critique de droit international privé 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 Recht der Internationalen Wirtschaft RJPF Revue Juridique Personnes et Famille

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

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

TCR TEU TFEU TGI

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

XXVIII

Revue de Marché commun Rheinische Notar-Zeitschrift Der Deutsche Rechtspfleger Rules of the Supreme Court Retstidning Revue trimestrielle de droit européen Rechtskundig Weekblad Richterzeitung

List of Abbreviations

Trib. TS

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

XXIX

Council Regulation (EU) No 2019/1111 of 25 June 2019 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) Official Journal L 178, 2 July 2019, pp. 0001–0115 THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 81 (3) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinions of the European Parliament,1 Having regard to the opinion of the European Economic and Social Committee,2 Acting in accordance with a special legislative procedure, Whereas: (1) On 15 April 2014, the Commission adopted a report on the application of Council Regulation (EC) No 2201/2003.3 The report concluded that Regulation (EC) No 2201/2003 is a well-functioning instrument that has brought important benefits to citizens, but that the existing rules could be improved. A number of amendments are to be made to that Regulation. In the interests of clarity, that Regulation should be recast. (2) This Regulation establishes uniform jurisdiction rules for divorce, legal separation and marriage annulment as well as for disputes about parental responsibility with an international element. It facilitates the circulation of decisions, as well as of authentic instruments and certain agreements, in the Union by laying down provisions on their recognition and enforcement in other Member States. Moreover, this Regulation clarifies the child’s right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject and also contains provisions complementing the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’) in relations between Member States. Therefore, this Regulation should help to strengthen legal certainty and increase flexibility, to ensure that access to court proceedings is improved and to ensure that such proceedings are made more efficient. (3) The smooth and correct functioning of a Union area of justice with respect for the Member States’ different legal systems and traditions is vital for the Union. In that regard, mutual trust in one another’s justice systems should be further enhanced. The Union has set itself the objective of creating, maintaining and developing an area of freedom, security and justice, in which the free movement of persons and access to justice are ensured. With a view to implementing that objective, the rights of persons, in particular children, in legal procedures should be reinforced in order to facilitate the cooperation of judicial and administrative authorities and the enforcement of decisions in family law matters with cross-border implications. The mutual recognition of decisions in civil matters should be enhanced, access to justice should be simplified and exchanges of information between the authorities of the Member States should be improved. (4) To this end, the Union is to adopt, among others, measures in the field of judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market. The term ‘civil matters’ should be interpreted autonomously, 1 Official footnote: Opinion of 18 January 2018 (OJ C 458, 19.12.2018, p. 499) and opinion of 14 March 2019 (not yet published in the Official Journal). 2 Official footnote: Opinion of 26 January 2017 (OJ C 125, 21.4.2017, p. 46). 3 Official footnote: Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1).

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Brussels IIter Recitals in accordance with the established case-law of the Court of Justice of the European Union (‘the Court of Justice’). It should be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of this Regulation and, second, to the general principles which stem from the corpus of the national legal systems. The term ‘civil matters’ should therefore be interpreted as capable of extending also to measures which, from the point of view of the legal system of a Member State, might fall under public law. It should cover, in particular, all applications, measures or decisions in matters of ‘parental responsibility’ within the meaning of this Regulation, in accordance with its objectives. (5) This Regulation covers ‘civil matters’, which includes civil court proceedings and the resulting decisions as well as authentic instruments and certain extra-judicial agreements in matrimonial matters and matters of parental responsibility. Moreover, the term ‘civil matters’ should cover applications, measures or decisions as well as authentic instruments and certain extra-judicial agreements concerning the return of a child under the 1980 Hague Convention, which, according to the case-law of the Court of Justice and in line with Article 19 of the 1980 Hague Convention, are not proceedings on the substance of parental responsibility but closely related to it and addressed by certain provisions of this Regulation. (6) In order to facilitate the circulation of decisions as well as of authentic instruments and certain agreements in matrimonial matters and matters of parental responsibility, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of decisions be governed by a legal instrument of the Union which is binding and directly applicable. (7) In order to ensure equality for all children, this Regulation should cover all decisions on parental responsibility, including measures for the protection of the child, independent of any link with matrimonial proceedings or other proceedings. (8) However, since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is appropriate to have a single instrument for matters of divorce and parental responsibility. (9) As regards decisions on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties. It should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures. Decisions refusing the dissolution of matrimonial ties should not be covered by its provisions on recognition. (10) As regards the property of the child, this Regulation should apply only to measures for the protection of the child, namely the designation and functions of a person or body having charge of the child’s property, representing or assisting the child, and the administration, conservation or disposal of the child’s property. In this context, this Regulation should, for instance, apply in cases where the object of the proceedings is the designation of a person or body administering 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 Regulation (EU) No 1215/2012 of the European Parliament and of the Council.4 However, it should be possible for the provisions of this Regulation on jurisdiction over incidental questions to apply in such cases. (11) Any type of placement of a child in foster care, that is, according to national law and procedure, with one or more individuals, or institutional care, for example in an orphanage or a children’s home, in another Member State should fall within the scope of this Regulation unless expressly excluded, which is for example the case for placement with a view to adoption, placement with a parent or, where applicable, with any other close relative as declared by the receiving Member State. As a result, also ‘educational placements’ ordered by a court or arranged by a competent authority with the agreement of the parents or the child or upon their request following deviant behaviour of the child should be included. Only a placement – be it educational or punitive – ordered or arranged following an act of the child which, if committed by an adult, could amount to

4 Official footnote: Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

2

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Brussels IIter

a punishable act under national criminal law, regardless of whether in the particular case this could lead to a conviction, should be excluded. (12) This Regulation should not apply to the establishment of parenthood, since that is a different matter from the attribution of parental responsibility, nor should it apply to other questions linked to the status of persons. (13) Maintenance obligations are excluded from the scope of this Regulation, as those obligations are already covered by Council Regulation (EC) No 4/2009.5 In addition to the courts for the place where the defendant, or the creditor, is habitually resident, the courts having jurisdiction under this Regulation in matrimonial matters should generally have jurisdiction to decide on ancillary spousal or post-marital maintenance obligations by application of point (c) of Article 3 of that Regulation. The courts having jurisdiction under this Regulation in matters of parental responsibility generally have jurisdiction to decide on ancillary child maintenance obligations by application of point (d) of Article 3 of that Regulation. (14) According to the case-law of the Court of Justice, the term ‘court’ should be given a broad meaning so as to also cover administrative authorities, or other authorities, such as notaries, who or which exercise jurisdiction in certain matrimonial matters or matters of parental responsibility. Any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognised or enforced as a ‘decision’. Other agreements which acquire binding legal effect in the Member State of origin following the formal intervention of a public authority or other authority as communicated to the Commission by a Member State for that purpose should be given effect in other Member States in accordance with the specific provisions on authentic instruments and agreements in this Regulation. This Regulation should not allow free circulation of mere private agreements. However, agreements which are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so, should circulate. Such public authorities might include notaries registering agreements, even where they are exercising a liberal profession. (15) In relation to ‘authentic instrument’, the term ‘empowerment’ in this Regulation is to be interpreted autonomously in accordance with the definition of ‘authentic instrument’ used horizontally in other Union instruments and in light of the purposes of this Regulation. (16) Although return proceedings under the 1980 Hague Convention are not proceedings on the substance of parental responsibility, decisions ordering the return of a child pursuant to the 1980 Hague Convention should benefit from recognition and enforcement under Chapter IV of this Regulation where they need to be enforced in another Member State due to a further abduction after return was ordered. This is without prejudice to the possibility of starting new proceedings for the return of a child under the 1980 Hague Convention with regard to the further abduction. Moreover, this Regulation should continue to apply to other aspects in situations of wrongful removal or retention of a child, for example the jurisdiction provisions for the court of the Member State of habitual residence, and the recognition and enforcement provisions for any orders made by that court. (17) This Regulation should, like 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 (‘the 1996 Hague Convention’), apply to all children up to the age of 18 years even in cases where they have acquired capacity before that age under the law governing their personal status, for example through emancipation by reason of marriage. This should avoid an overlap with the scope of the Hague Convention of 13 January 2000 on the International Protection of Adults which applies from the age of 18 years onwards and, at the same time, prevent gaps between those two instruments. The 1980 Hague Convention, and consequently also Chapter III of this Regulation, which complements the application of the 1980 Hague Convention in relations between Member States, should continue to apply to children up to the age of 16 years. 5 Official footnote: 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 L 7, 10.1.2009, p. 1).

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Brussels IIter Recitals (18) For the purposes of this Regulation, a person should be deemed to have ‘rights of custody’ where, pursuant to a decision, by operation of law or by an agreement having legal effect under the law of the Member State where the child is habitually resident, a holder of parental responsibility cannot decide on the child’s place of residence without the consent of that person, regardless of the terms used under national law. In some legal systems which retain the language of ‘custody’ and ‘access’, the non-custodial parent might in fact retain important responsibilities for decisions concerning the child which go beyond a mere right of access. (19) The grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child and should be applied in accordance with them. Any reference to the best interests of the child should be interpreted in light of Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the United Nations Convention on the Rights of the Child of 20 November 1989 (‘UN Convention on the Rights of the Child’) as implemented by national law and procedure. (20) To safeguard the best interests of the child, jurisdiction should in the first place be determined according to the criterion of proximity. Consequently, jurisdiction should lie with the Member State of the habitual residence of the child, except for certain situations set out in this Regulation, for instance, where there is a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. (21) Where no proceedings in matters of parental responsibility are yet pending and the habitual residence of the child changes following a lawful relocation, jurisdiction should follow the child in order to maintain the proximity. For proceedings already pending, legal certainty and the efficiency of justice justify maintaining this jurisdiction until those proceedings have resulted in a final decision or have otherwise come to an end. The court before which proceedings are pending should, however, be entitled in certain circumstances to transfer jurisdiction to the Member State where the child is living following a lawful relocation. (22) In cases of the wrongful removal or retention of a child, and without prejudice to a possible choice of court pursuant to this Regulation, the courts of the Member State of the habitual residence of the child should retain their jurisdiction until a new habitual residence in another Member State has been established and some specific conditions are fulfilled. Member States which have concentrated jurisdiction should consider enabling the court seised with the return application under the 1980 Hague Convention to exercise also the jurisdiction agreed upon or accepted by the parties pursuant to this Regulation in matters of parental responsibility where agreement of the parties was reached in the course of the return proceedings. Such agreements should include agreements both on the return and the non-return of the child. If non-return is agreed, the child should remain in the Member State of the new habitual residence and jurisdiction for any future custody proceedings there should be determined on the basis of the new habitual residence of the child. (23) Under specific conditions laid down by this Regulation, it should be possible for jurisdiction in matters of parental responsibility also to be established in a Member State where proceedings for divorce, legal separation or marriage annulment are pending between the parents, or in another Member State with which the child has a substantial connection and which the parties have either agreed upon in advance, at the latest at the time the court is seised, or accepted expressly in the course of those proceedings, even if the child is not habitually resident in that Member State, provided that the exercise of such jurisdiction is in the best interests of the child. According to the case-law of the Court of Justice, anyone other than the parents who, according to national law, has the capacity of a party to the proceedings commenced by the parents, should be considered a party to the proceedings for the purposes of this Regulation and therefore, opposition by that party to the choice of jurisdiction made by the parents of the child in question, after the date on which the court was seised, should preclude the acceptance of prorogation of jurisdiction by all the parties to the proceedings at that date from being established. Before exercising its jurisdiction based on a choice of court agreement or acceptance the court should examine whether this agreement or acceptance was based on an informed and free choice of the parties concerned and not a result of one party taking advantage of the predicament or weak position of the other party. The acceptance of jurisdiction in the course of the proceedings should be recorded by the court in accordance with national law and procedure. 4

Magnus/Mankowski

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Brussels IIter

(24) Any agreed or accepted jurisdiction should cease, unless otherwise agreed by the parties, as soon as a decision in those proceedings on matters of parental responsibility is no longer subject to ordinary appeal or the proceedings have come to an end for another reason, in order to respect the requirement of proximity for any new proceedings in the future. (25) Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of a choice of court agreement, the courts of the Member State where the child is present should have jurisdiction. This presence rule should also apply to refugee children and children internationally displaced because of disturbances occurring in their Member State of habitual residence. However, in light of this Regulation in conjunction with Article 52(2) of the 1996 Hague Convention, this jurisdiction rule should only apply to children who had their habitual residence in a Member State before the displacement. Where the habitual residence of the child before the displacement was in a third State, the jurisdiction rule of the 1996 Hague Convention on refugee children and internationally displaced children should apply. (26) In exceptional circumstances, a court of the Member State of habitual residence of the child might not be the most appropriate court to deal with the case. As an exception and under certain conditions, while under no obligation to do so, the court having jurisdiction should be able, to transfer its jurisdiction in a specific case to a court of another Member State if this court is better placed to assess the best interests of the child in the particular case. According to the case-law of the Court of Justice, the transfer of jurisdiction in matters of parental responsibility, by a court of a Member State, should be made only to a court of another Member State with which the child concerned has a ‘particular connection’. This Regulation should set out an exhaustive list of the decisive elements of such ‘particular connection’. The court having jurisdiction should make the request to the court of another Member State only if its prior decision to stay the proceedings and make a request for transfer of jurisdiction has become final where that decision can be appealed under national law. (27) In exceptional circumstances and considering the best interests of the child in the particular case, a court of a Member State not having jurisdiction under this Regulation, but a particular connection with the child in accordance with this Regulation, should be able to request a transfer of jurisdiction from the competent court of the Member State of the habitual residence of the child. That should, however, not be permitted in cases of wrongful removal or retention of the child. It should be for the national law of the requested Member State to identify this specific competent court. (28) A transfer of jurisdiction, whether requested by a court wishing to transfer its jurisdiction or by a court wishing to obtain jurisdiction, should have effect only for the particular case in which it is made. Once the proceedings for which the transfer of jurisdiction was requested and granted have come to an end, the transfer should not produce any effect for future proceedings. (29) Where no court of a Member State has jurisdiction pursuant to this Regulation, jurisdiction should be determined, in each Member State, by the laws of that Member State. The term ‘laws of that Member State’ should include international instruments in force in that Member State. (30) This Regulation should not prevent the courts of a Member State not having jurisdiction over the substance of the matter from taking provisional, including protective, measures in urgent cases, with regard to the person or property of a child present in that Member State. Those measures should not be recognised and enforced in any other Member State under this Regulation, with the exception of measures taken to protect the child from a grave risk as referred to in point (b) of Article 13(1) of the 1980 Hague Convention. Measures taken to protect the child from such risk should remain in force until a court of the Member State of the habitual residence of the child has taken the measures it considers appropriate. Insofar as the protection of the best interests of the child so requires, the court should inform, directly or through the Central Authorities, the court of the Member State having jurisdiction over the substance of the matter under this Regulation about the measures taken. The failure to provide such information should, however, not as such be a ground for the non-recognition of the measure. (31) A court only having jurisdiction for provisional, including protective measures should, if seised with an application concerning the substance of the matter, declare of its own motion that

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Brussels IIter Recitals it has no jurisdiction if a court of another Member State has jurisdiction as to the substance of the matter under this Regulation. (32) If the outcome of proceedings before a court of a Member State not having jurisdiction under this Regulation depends on the determination of an incidental question falling within the scope of this Regulation, the courts of that Member State should not be prevented by this Regulation from determining that question. Therefore, if the object of the proceedings is, for instance, a succession dispute in which the child is involved and a guardian ad litem needs to be appointed to represent the child in those proceedings, the Member State having jurisdiction for the succession dispute should be allowed to appoint the guardian for the pending proceedings, regardless of whether it has jurisdiction for matters of parental responsibility under this Regulation. Any such determination should only produce effects in the proceedings for which it was made. (33) If the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State should be able to decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation. The term ‘legal act’ should include, for example, the acceptance or rejection of inheritance or an agreement between the parties on the sharing-out or the distribution of the estate. (34) This Regulation should be without prejudice to the application of public international law concerning diplomatic immunity. Where jurisdiction under this Regulation cannot be exercised due to 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. (35) This Regulation defines at what time a court is deemed to be seised for the purposes of this Regulation. In light of the two different systems existing in the Member States, which either require the document instituting the proceedings to be served upon the respondent first, or to be lodged with the court first, it should be sufficient for the first step under national law to have been taken, provided that the applicant has not subsequently failed to take any steps that he or she was required to take under national law in order to have the second step effected. Taking into account the growing importance of mediation and other methods of alternative dispute resolution, also during court proceedings, in accordance with the case-law of the Court of Justice, a court should also be deemed to be seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court in cases where the proceedings have in the meantime been suspended, with a view to finding an amicable solution, upon application of the party who instituted them, without the document instituting the proceedings having yet been served upon the respondent and without the respondent having had knowledge about the proceedings or having participated in them in any way, provided that the party who instituted the proceedings has not subsequently failed to take any steps that he or she was required to take to have service effected on the respondent. According to the case-law of the Court of Justice, in the case of lis pendens, the date on which a mandatory conciliation procedure was lodged before a national conciliation authority should be considered as the date on which a ‘court’ is deemed to be seised. (36) Regulation (EC) No 1393/2007 of the European Parliament and of the Council6 should apply to the service of documents in proceedings instituted pursuant to this Regulation. (37) A court of a Member State seised of a case over which it has no jurisdiction as to the substance of the matter under this Regulation and over which a court of another Member State has jurisdiction as to the substance of the matter under this Regulation should declare of its own motion that it has no jurisdiction. However, a court of a Member State having a particular connection with the child in accordance with this Regulation should have the discretion to request a transfer of jurisdiction under this Regulation, but not an obligation to do so.

6 Official footnote: Regulation (EC) No 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 (EC) No 1348/2000 (OJ L 324, 10.12.2007, p. 79).

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(38) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable decisions will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously. However, in order to enhance the effectiveness of exclusive choice-of-court agreements, the provisions of this Regulation on lis pendens should not stand in the way where parents confer exclusive jurisdiction on the courts of a Member State. (39) Proceedings in matters of parental responsibility under this Regulation as well as return proceedings under the 1980 Hague Convention should, as a basic principle, provide the child who is subject to those proceedings and who is capable of forming his or her own views, in accordance with the case-law of the Court of Justice, with a genuine and effective opportunity to express his or her views and when assessing the best interests of the child, due weight should be given to those views. The opportunity of the child to express his or her views freely in accordance with Article 24(1) of the Charter and in the light of Article 12 of the UN Convention on the Rights of the Child plays an important role in the application of this Regulation. The Regulation should, however, leave the question of who will hear the child and how the child is heard to be determined by national law and procedure of the Member States. Consequently, it should not be the purpose of this Regulation to set out whether the child should be heard by the judge in person or by a specially trained expert reporting to the court afterwards, or whether the child should be heard in the courtroom or in another place or through other means. In addition, while remaining a right of the child, hearing the child cannot constitute an absolute obligation, but must be assessed taking into account the best interests of the child, for example, in cases involving agreements between the parties. Whilst, according to the case-law of the Court of Justice, it is not a requirement of Article 24 of the Charter and of Regulation (EC) No 2201/2003 that the court of the Member State of origin obtain the views of the child in every case by means of a hearing, and that that court thus retains a degree of discretion, the case-law also provides that, where that court decides to provide the opportunity for the child to be heard, the court is required to take all measures which are appropriate to the arrangement of such a hearing, having regard to the best interests of the child and the circumstances of each individual case, in order to ensure the effectiveness of those provisions, and to offer to the child a genuine and effective opportunity to express his or her views. The court of the Member State of origin should, in so far as possible and always taking into consideration the best interests of the child, use all means available to it under national law as well as the specific instruments of international judicial cooperation, including, when appropriate, those provided for by Council Regulation (EC) No 1206/2001.7 (40) In cases of the wrongful removal or retention of a child, the return of the child should be obtained without delay, and to that end the 1980 Hague Convention should continue to apply as complemented by this Regulation, in particular Chapter III. (41) In order to conclude the return proceedings under the 1980 Hague Convention as quickly as possible, Member States should, in coherence with their national court structure, consider concentrating jurisdiction for those proceedings upon as limited a number of courts as possible. Jurisdiction for child abduction cases could be concentrated in one single court for the whole country or in a limited number of courts, using, for example, the number of appellate courts as point of departure and concentrating jurisdiction for international child abduction cases upon one court of first instance within each district of a court of appeal. (42) In return proceedings under the 1980 Hague Convention, the courts at every instance should give their decision within six weeks, except where exceptional circumstances make this impossible. The fact that means of alternative dispute resolution are used should not as such be considered an exceptional circumstance allowing the timeframe to be exceeded. However, exceptional 7 Official footnote: 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, 27.6.2001, p. 1).

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Brussels IIter Recitals circumstances might arise while using such means or as a result of them. For a court of first instance, the timeframe should start at the moment that the court is seised. For a court of higher instance, it should start at the moment that all required procedural steps have been taken. Such steps could include, depending on the legal system concerned, service of the appeal upon the respondent, either within the Member State where the court is located or within another Member State, transmission of the file and the appeal to the appellate court in Member States where the appeal has to be lodged with the court whose decision is appealed, or an application by a party to convene a hearing where such an application is required under national law. Member States should also consider limiting the number of appeals possible against a decision granting or refusing the return of a child under the 1980 Hague Convention to one. (43) In all cases concerning children, and in particular in cases of international child abduction, courts should consider the possibility of achieving solutions through mediation and other appropriate means, assisted, where appropriate, by existing networks and support structures for mediation in cross-border parental responsibility disputes. Such efforts should not, however, unduly prolong the return proceedings under the 1980 Hague Convention. Moreover, mediation might not always be appropriate, especially in cases of domestic violence. Where in the course of return proceedings under the 1980 Hague Convention, parents reach agreement on the return or nonreturn of the child, and also on matters of parental responsibility, this Regulation should, under certain circumstances, make it possible for them to agree that the court seised under the 1980 Hague Convention should have jurisdiction to give binding legal effect to their agreement, either by incorporating it into a decision, approving it or by using any other form provided by national law and procedure. Member States which have concentrated jurisdiction should therefore consider enabling the court seised with the return proceedings under the 1980 Hague Convention to exercise also the jurisdiction agreed upon or accepted by the parties pursuant to this Regulation in matters of parental responsibility where agreement of the parties was reached in the course of those return proceedings. (44) The court of the Member State to or in which the child has been wrongfully removed or retained should be able to refuse the return in specific, duly justified cases, as permitted by the 1980 Hague Convention. Before doing so, it should consider whether appropriate measures of protection have been put in place or might be taken to protect the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention. (45) Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it should not refuse to return the child if either the party seeking the return of the child satisfies the court, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return. Examples for such arrangements could include a court order from that Member State prohibiting the applicant to come close to the child, a provisional, including protective measure from that Member State allowing the child to stay with the abducting parent who is the primary carer until a decision on the substance of rights of custody has been made in that Member State following the return, or the demonstration of available medical facilities for a child in need of treatment. Which type of arrangement is adequate in the particular case should depend on the concrete grave risk to which the child is likely to be exposed by the return without such arrangements. The court seeking to establish whether adequate arrangements have been made should primarily rely on the parties and, where necessary and appropriate, request the assistance of Central Authorities or network judges, in particular within the European Judicial Network in civil and commercial matters, as established by Council Decision 2001/470/EC,8 and the International Hague Network of Judges. (46) Where appropriate, when ordering the return of the child, it should be possible for the court to order any provisional, including protective measures pursuant to this Regulation which it considers necessary to protect the child from the grave risk of physical or psychological harm entailed by the return which would otherwise lead to a refusal of return. Such provisional measures and their circulation should not delay the return proceedings under the 1980 Hague Convention or undermine the delimitation of jurisdiction between the court seised with the return proceed8 Official footnote: Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174, 27.6.2001, p. 25).

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ings under the 1980 Hague Convention and the court having jurisdiction on the substance of parental responsibility under this Regulation. If necessary, the court seised with the return proceedings under the 1980 Hague Convention should consult with the court or competent authorities of the Member State of the habitual residence of the child, with the assistance of Central Authorities or network judges, in particular within the European Judicial Network in civil and commercial matters and the International Hague Network of Judges. Those measures should be recognised and enforced in all other Member States including the Member States having jurisdiction under this Regulation until a court of such a Member State has taken the measures it considers appropriate. Such provisional, including protective, measures could include, for instance, that the child should continue to reside with the primary care giver or how contact with the child should take place after return until the court of the habitual residence of the child has taken measures it considers appropriate. This should be without prejudice to any measure or decision of the court of the habitual residence taken after the return of the child. (47) It should be possible for a decision ordering the return of the child to be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child. National law can specify by which court the decision can be declared provisionally enforceable. (48) Where the court of the Member State to or in which the child has been wrongfully removed or retained decides to refuse the return of the child under the 1980 Hague Convention, in its decision it should refer explicitly to the relevant articles of the 1980 Hague Convention on which the refusal was based. Regardless of whether such a refusal decision is final or still subject to appeal, it might however be replaced by a subsequent decision, given in custody proceedings by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. In the course of these proceedings, all the circumstances, including, but not limited to, the conduct of the parents, should be thoroughly examined, taking into account the best interests of the child. Should the resulting decision on the substance of rights of custody entail the return of the child, the return should take place without any special procedure being required for the recognition and enforcement of that decision in any other Member State. (49) The court refusing the return of the child on the sole basis of point (b) of Article 13(1), or of Article 13(2), or both, of the 1980 Hague Convention should, of its own motion, issue a certificate using the appropriate form set out in this Regulation. The purpose of this certificate is to inform the parties of the possibility to seise a court in the Member State where the child was habitually resident immediately before the wrongful removal or retention, within three months of the notification of the decision refusing the return of the child, with applications regarding the substance of rights of custody, or, if that court is already seised, to communicate to the court relevant documents relating to the return proceedings. (50) Where proceedings on the substance of rights of custody are already pending in the Member State where the child was habitually resident immediately before the wrongful removal or retention at the time that a court seised with a return application under the 1980 Hague Convention refuses the return of the child on the sole basis of point (b) of Article 13(1), or of Article 13(2), or both, of the 1980 Hague Convention, the court which refused the return of the child should, if it is aware of those proceedings, transmit within one month of the date of its decision a copy of the decision, the appropriate certificate and, where applicable, a transcript, summary or minutes of the hearing as well as any other documents it considers relevant to the court seised with the proceedings on the substance of rights of custody. The term ‘any other documents it considers relevant’ should refer to any documents which contain information that might have a bearing on the outcome of those custody proceedings, if such information is not already contained in the decision refusing return. (51) Where no proceedings on the substance of rights of custody are yet pending in the Member State where the child was habitually resident immediately before the wrongful removal or retention and a party seises a court of that Member State within three months following the date of the notification of the decision not to return the child, that party should submit to the court seised with the application on the substance of rights of custody, a copy of the decision not to return the child under the 1980 Hague Convention, the appropriate certificate and, where applicable, a tranMagnus/Mankowski

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Brussels IIter Recitals script, summary or minutes of the hearing. This does not preclude the court seised from asking for any additional documents it considers relevant, which contain information that might have a bearing on the outcome of the proceedings on the substance of rights of custody, if such information is not already contained in the decision refusing return. (52) If the court having jurisdiction over the substance of rights of custody has been seised by a party within three months of the notification of the decision refusing the return of the child under the 1980 Hague Convention, or if custody proceedings were already pending before that court at the moment it received that decision from the court having refused the return of the child, any decision resulting from those proceedings regarding the substance of rights of custody which entails the return of the child to that Member State should be enforceable in any other Member State in accordance with Section 2 of Chapter IV of this Regulation without any special procedure being required and without any possibility of opposing its recognition. This should apply unless and to the extent that irreconcilability with a later decision relating to parental responsibility concerning the same child is found to exist, provided that a certificate for ‘privileged decisions’ has been issued for the decision on the substance of rights of custody entailing the return of the child. If the court having jurisdiction over the substance of rights of custody is seised after the three months have expired, or the conditions for issuing a certificate for such privileged decisions are not met, the resulting decision on the substance of rights of custody should be recognised and enforced in other Member States in accordance with Section 1 of Chapter IVof this Regulation. (53) Without prejudice to other Union instruments, where it is not possible to hear a party or a child in person, and where the technical means are available, the court might consider holding a hearing through videoconference or by means of any other communication technology unless, on account of the particular circumstances of the case, the use of such technology would not be appropriate for the fair conduct of the proceedings. (54) Mutual trust in the administration of justice in the Union justifies the principle that decisions in matrimonial matters and in matters of parental responsibility given in a Member State should be recognised in all Member States without the need for any recognition procedure. In particular, when presented with a decision given in another Member State and granting divorce, legal separation or marriage annulment which can no longer be challenged in the Member State of origin, the competent authorities of the requested Member State should recognise the decision by operation of law without any special procedure being required and update their civil status records accordingly. It is left to national law whether the grounds for refusal may be raised by a party or ex officio as provided by national law. This does not preclude any interested party from applying, in accordance with this Regulation, for a decision that there are no grounds for refusal of recognition as referred to in this Regulation. It should be for the national law of the Member State where such application is made to determine who can be considered as an interested party entitled to make such application. (55) The recognition and enforcement of decisions, authentic instruments and agreements given in a Member State should be based on the principle of mutual trust. Therefore the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation which is to facilitate recognition and enforcement and to effectively protect the best interests of the child. (56) The recognition of a decision should be refused only if one or more of the grounds for refusal of recognition provided for in this Regulation are present. The list of grounds for refusal of recognition in this Regulation is exhaustive. It should not be possible to invoke as grounds for refusal, grounds which are not listed in this Regulation, such as, for example, a violation of the lis pendens rule. In matters of parental responsibility, a later decision always supersedes an earlier decision with effect for the future to the extent that they are irreconcilable. (57) As concerns the opportunity given to a child to express his or her views, it should be for the court of origin to decide about the appropriate method for hearing a child. Therefore, it should not be possible to refuse recognition of a decision on the sole ground that the court of origin used a different method to hear the child than a court in the Member State of recognition would use. The Member State where recognition is invoked should not refuse recognition where one of the exceptions from this particular ground for refusal as permitted by this Regulation applies. The 10

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effect of those exceptions is that it should not be possible for a court in the Member State of enforcement to refuse to enforce a decision on the sole ground that the child was not given the opportunity to express his or her views, taking into account his or her best interests, if the proceedings only concerned the property of the child and provided that giving such an opportunity was not required in light of the subject matter of the proceedings, or in the case of the existence of serious grounds taking into account, in particular, the urgency of the case. Such serious grounds could be given, for instance, where there is imminent danger for the child’s physical and psychological integrity or life and any further delay might bear the risk that this danger materialises. (58) In addition, the aim of making cross-border litigation concerning children less time consuming and costly justifies the abolition of the declaration of enforceability or the registration for enforcement, as applicable, prior to enforcement in the Member State of enforcement for all decisions in matters of parental responsibility. While Regulation (EC) No 2201/2003 only abolished this requirement for certain decisions granting rights of access and certain decisions entailing the return of a child, this Regulation should abolish it for the cross-border enforcement of all decisions in matters of parental responsibility while still retaining an even more favourable treatment of certain decisions granting rights of access and certain decisions entailing the return of a child. As a result, subject to this Regulation, a decision given by the court of any other Member State should be treated as if it had been given in the Member State of enforcement. (59) Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, the circulation of those measures should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the decision containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, their circulation should be confined, under this Regulation, to measures taken in international child abduction cases and aimed at protecting the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention. Those measures should apply until a court of a Member State having jurisdiction over the substance of the matter under this Regulation has taken the measures it considers appropriate. (60) As enforcement procedures could be judicial or extra-judicial depending on national law, ‘authorities competent for enforcement’ could include courts, bailiffs and any other authorities as determined by national law. Where, in addition to authorities competent for enforcement, courts are also mentioned in this Regulation, this should cover cases where, under national law, a body other than a court is the authority competent for enforcement, but certain decisions are reserved to courts, either from the outset or in the form of reviewing the acts of the authority competent for enforcement. It should be for the authority competent for enforcement or the court of the Member State of enforcement to order, take or arrange for specific measures to be taken at the enforcement stage, such as any non-coercive measures which might be available under the national law of that Member State, or any coercive measures which might be available under that law, including fines, imprisonment or the fetching of the child by a bailiff. (61) In order to facilitate enforcement of decisions on the exercise of rights of access from another Member State, authorities competent for enforcement or the courts in the Member State of enforcement should be entitled to specify details regarding practical circumstances or legal conditions required under the law of the Member State of enforcement. The arrangements provided for in this Regulation should facilitate enforcement of a decision in the Member State of enforcement, which might not otherwise be enforceable because of its vagueness, so that the authority competent for enforcement or the court of enforcement can make the decision more concrete and precise. Also any other arrangements to comply with legal requirements under the national enforcement law of the Member State of enforcement, such as, for example, the participation of a child protection authority or a psychologist at the enforcement stage, should be made in the same way. However, any such arrangements should not interfere with, or go beyond, the essential elements of the decision on the rights of access. Moreover, the power under this Regulation to adjust meaMagnus/Mankowski

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Brussels IIter Recitals sures should not allow the court of enforcement to replace measures that are unknown in the law of the Member State of enforcement, with different measures. (62) The enforcement in a Member State of a decision given in another Member State without a declaration of enforceability should not jeopardise the respect for the rights of the defence. Therefore, the person against whom enforcement is sought should be able to apply for refusal of the recognition or enforcement of a decision if he or she considers one of the grounds for refusal of recognition or enforcement of this Regulation to be present. It is for national law to determine whether the grounds for refusal of recognition set out in this Regulation are to be examined ex officio or upon application. Therefore, the same examination should be possible in the context of the refusal of enforcement. The application of any national ground for refusal should not have the effect of extending the conditions and modalities of the grounds provided for under this Regulation. (63) A party challenging the enforcement of a decision given in another Member State should, to the extent possible and in accordance with the legal system of the Member State of enforcement, be able to do so in the procedure for enforcement and should be able to raise, within one procedure, in addition to the grounds for refusal provided for in this Regulation, the grounds for refusal available under the law of the Member State where enforcement is sought which would continue to apply because they are not incompatible with the grounds provided for in this Regulation. Those grounds could include, for example, challenges based on formal errors under national law in an act of enforcement or on the assertion that the action required by the decision has already been performed or has become impossible, for instance, in case of force majeure, serious illness of the person to whom the child is to be handed over, the imprisonment or death of that person, the fact that the Member State to which the child is to be returned has turned into a war zone after the decision was given, or the refusal of enforcement of a decision which under the law of the Member State where enforcement is sought does not have any enforceable content and cannot be adjusted to this effect. (64) In order to inform the person against whom enforcement is sought of the enforcement of a decision given in another Member State, the certificate established under this Regulation, if necessary accompanied by the decision, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service. According to the case-law of the Court of Justice, the party against whom enforcement is sought has a right to an effective remedy, which includes the possibility of commencing proceedings to challenge the enforceability of the decision prior to the actual start of enforcement. (65) In matters of parental responsibility, enforcement will always concern a child and in many cases the handover of a child to a person other than the person with whom the child is residing at that time and/or the relocation of the child to another Member State. The primary objective should thus be to strike the right balance between the right of the applicant, as a principle, to obtain implementation of a decision as quickly as possible also in cross-border cases within the Union and, if need be, also by applying coercive measures, and the need to limit, as far as possible, exposure of the child to such possibly traumatising coercive enforcement measures in cases where this cannot be avoided. This assessment should be made by the authorities competent for enforcement and the courts in each Member State in the light of each individual case. (66) This Regulation seeks to establish a level playing field as regards the cross-border enforcement of decisions in matters of parental responsibility among Member States. In a number of Member States, these decisions are already enforceable even if they are still subject to appeal, or already under appeal. In other Member States, only a final decision no longer subject to ordinary appeal is enforceable. In order to cater for situations of urgency, this Regulation therefore provides that certain decisions in matters of parental responsibility might be declared provisionally enforceable by the court of the Member State of origin even if still subject to appeal, namely decisions ordering the return of a child under the 1980 Hague Convention and decisions granting rights of access.

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(67) In enforcement procedures concerning children, however, it is important for the authorities competent for enforcement or the courts to be able to react swiftly to a relevant change of circumstances, including challenges against the decision in the Member State of origin, loss of enforceability of the decision and obstacles or emergency situations they encounter at the enforcement stage. Therefore, the enforcement proceedings should be suspended, upon application or of the authority’s or court’s own motion, where the enforceability of the decision is suspended in the Member State of origin. The authority or court competent for enforcement should, however, not be obliged to investigate actively whether in the meantime enforceability has been suspended, following an appeal or otherwise, in the Member State of origin if there is no indication that this is the case. Moreover, the suspension or refusal of enforcement in the Member State of enforcement should be upon application and, even where one or more of the grounds contained in or permitted by this Regulation are found to exist, the suspension or refusal of enforcement in the Member State of enforcement should be left to the discretion of the authority competent for enforcement or the court. (68) Where the decision is still subject to appeal in the Member State of origin and the time for lodging an ordinary appeal has not yet expired, the authority competent for enforcement or the court in the Member State of enforcement should have the discretion, upon application, to suspend, the enforcement proceedings. In those cases it may specify the time-limit by which any appeal is to be lodged in the Member State of origin, in order to obtain or maintain the suspension of enforcement proceedings. The specification of a time-limit should only have effect for the suspension of the enforcement proceedings and should not affect the deadline for lodging an appeal according to the procedural rules of the Member State of origin. (69) In exceptional cases, it should be possible for the authority competent for enforcement or the court to suspend the enforcement proceedings if enforcement would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances. Enforcement should be resumed as soon as the grave risk of physical or psychological harm ceases to exist. If it continues to exist, however, before refusing enforcement any appropriate steps should be taken in accordance with national law and procedure including, where appropriate, with the assistance of other relevant professionals, such as social workers or child psychologists, to try to ensure implementation of the decision. In particular, the authority competent for enforcement or the court should, in accordance with national law and procedure, try to overcome any impediments created by a change of circumstances, such as, for example, manifest objection of the child voiced only after the decision was given which is so strong that, if disregarded, it would amount to a grave risk of physical or psychological harm for the child. (70) Authentic instruments and agreements between parties on legal separation and divorce which have binding legal effect in one Member State should be treated as equivalent to ‘decisions’ for the purpose of the application of the rules on recognition. Authentic instruments and agreements between parties in matters of parental responsibility which are enforceable in one Member State should be treated as equivalent to ‘decisions’ for the purpose of the application of the rules on recognition and enforcement. (71) Although the obligation to provide the child with the opportunity to express his or her views under this Regulation should not apply to authentic instruments and agreements, the right of the child to express his or her views should continue to apply pursuant to Article 24 of the Charter and in light of Article 12 of the UN Convention on the Rights of the Child as implemented by national law and procedure. The fact that the child was not given the opportunity to express his or her views should not automatically be a ground of refusal of recognition and enforcement of authentic instruments and agreements in matters of parental responsibility. (72) In matters of parental responsibility, Central Authorities should be designated in all Member States. Member States should consider designating the same Central Authority for this Regulation as designated for the 1980 and 1996 Hague Conventions. Member States should ensure that Central Authorities have adequate financial and human resources to enable them to carry out the tasks assigned to them under this Regulation.

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Brussels IIter Recitals (73) The provisions of this Regulation on cooperation in matters of parental responsibility should not apply to the processing of return applications under the 1980 Hague Convention which, in accordance with Article 19 of that Convention and the established case-law of the Court of Justice, are not proceedings on the substance of parental responsibility. The application of the 1980 Hague Convention should, however, be complemented by the provisions of this Regulation on international child abduction and by the Chapter of this Regulation on recognition and enforcement and the Chapter on general provisions. (74) Central Authorities should assist courts and competent authorities, and in certain cases also holders of parental responsibility, in cross-border procedures and cooperate both in general matters and in specific cases, including for the purposes of promoting the amicable resolution of family disputes. (75) Except in urgent cases, and without prejudice to the direct cooperation and communication between courts permitted under this Regulation, requests pursuant to this Regulation concerning cooperation in matters of parental responsibility could be made by courts and competent authorities and should be submitted to the Central Authority of the Member State of the requesting court or competent authority. Certain requests could also be made by holders of parental responsibility and should be submitted to the Central Authority of the applicant’s habitual residence. Such requests should include requests to provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in the territory of the requested Central Authority, in particular concerning rights of access and the return of the child, including, where necessary, information on how to obtain legal aid; requests to facilitate agreement between holders of parental responsibility through mediation or other means of alternative dispute resolution, and requests for a court or competent authority to consider the need to take measures for the protection of the person or property of the child. (76) An example of an urgent case permitting direct initial contact with the court or competent authority of the requested Member State is a direct request to the competent authority of another Member State to consider the need to take measures for the protection of the child where the child is presumed to be at imminent risk. The obligation to proceed through Central Authority channels should only be mandatory for initial requests; any subsequent communication with the court, competent authority or applicant might also take place directly. (77) Central Authorities or competent authorities should not be precluded from entering into or maintaining existing agreements or arrangements with Central Authorities or competent authorities of one or more other Member States allowing direct communications in their mutual relations. Competent authorities should inform their Central Authorities about such agreements or arrangements. (78) In specific cases in matters of parental responsibility which fall within the scope of this Regulation, Central Authorities should cooperate with each other in providing assistance to courts and competent authorities as well as to holders of parental responsibility. The assistance provided by the requested Central Authority should in particular include locating the child, either directly or through courts, competent authorities or other bodies, where this is necessary for carrying out a request under this Regulation, and providing any other information relevant in procedures in matters of parental responsibility. (79) Requested Central Authorities should also take all appropriate steps to facilitate communication between courts, where necessary, in particular for the application of the rules on transfer of jurisdiction, on provisional, including protective measures in urgent cases, in particular where they are related to international child abduction and aimed at protecting the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention, and on lis pendens and dependent actions. To this effect, it is possible that providing information for further direct communication is sufficient in some cases, for example, providing contact details of child welfare authorities, network judges or the competent court. (80) In order to achieve the objectives of this Regulation and without prejudice to any requirements under its national procedural law, a requesting court or competent authority should have the discretion to choose freely between the different channels available to it for obtaining the necessary information. 14

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(81) Where a request with supporting reasons for a report or any other information relevant in procedures in matters of parental responsibility in the requesting Member State is made, the Central Authorities, directly or through the courts, competent authorities or other bodies of the requested Member State should carry out such a request. The request should contain, in particular, a description of the procedures for which the information is needed and the factual situation that gave rise to those procedures. (82) Where a court of a Member State has already given a decision in matters of parental responsibility or is contemplating such a decision and the implementation of the decision is to take place in another Member State, the court should be able to request that the courts or competent authorities of that other Member State assist in the implementation of the decision. This should apply, for instance, to decisions granting supervised access which is to be exercised in a Member State other than the Member State where the court ordering access is located or involving any other accompanying measures of the courts or competent authorities in the Member State where the decision is to be implemented. (83) Where a court or competent authority of a Member State considers the placement of a child in another Member State, a consultation procedure for obtaining consent should be carried out prior to the placement. The court or competent authority considering the placement should obtain the consent of the competent authority of the Member State in which the child would be placed before ordering or arranging the placement. Moreover, in line with the case-law of the Court of Justice, Member States should establish clear rules and procedures for the purposes of consent to be obtained pursuant to this Regulation, in order to ensure legal certainty and expedition. The procedures should, inter alia, enable the competent authority to grant or refuse its consent promptly. The absence of a reply within three months should not be understood as consent and without consent the placement should not take place. The request for consent should include at least a report on the child together with the reasons for the proposed placement or provision of care, the expected duration of the placement, information on any contemplated funding, supplemented by any other information which the requested Member State might consider pertinent such as any envisaged supervision of the measure, arrangements for contact with the parents, other relatives or other persons with whom the child has a close relationship, or the reasons why such contact is not contemplated in light of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Taking into consideration the case-law of the Court of Justice, where consent to placement has been given for a specified period of time, that consent should not apply to decisions or arrangements extending the duration of the placement. In such circumstances, a new request for consent should be made. (84) Where a decision on the placement of a child in institutional or foster care is being contemplated in the Member State of the habitual residence of the child, the court should consider, at the earliest stage of the proceedings, appropriate measures to ensure respect of the rights of the child, in particular the right to preserve his or her identity and the right to maintain contact with the parents, or, where appropriate, with other relatives, in light of Articles 8, 9 and 20 of the UN Convention on the Rights of the Child. Where the court is aware of a close connection of the child with another Member State, appropriate measures could in particular include, where point (b) of Article 37 of the Vienna Convention on Consular Relations is applicable, a notification to the Consular body of that Member State. Such awareness might also be raised by information provided by the Central Authority of that other Member State. Appropriate measures could also include a request pursuant to this Regulation to that Member State for information about a parent, a relative or other persons who could be suitable to care for the child. Moreover, depending on the circumstances, the court might also request information on procedures and decisions concerning a parent or siblings of the child. The best interests of the child should remain the paramount consideration. In particular, none of those provisions should affect national law or procedure applicable to any placement decision made by the court or competent authority in the Member State contemplating the placement. In particular, those provisions should not place any obligation on the authorities of the Member State having jurisdiction to place the child in the other Member State or further involve that Member State in the placement decision or proceedings.

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Brussels IIter Recitals (85) As time is of the essence in matters of parental responsibility, the information requested under the provisions of this Regulation on cooperation, including on collecting and exchanging information relevant in procedures in matters of parental responsibility, and the decision granting or refusing consent for the placement of a child in another Member State should be transmitted to the requesting Member State by the Central Authority of the requested Member State no later than three months following the receipt of the request, except where exceptional circumstances make this impossible. This should include the obligation of the competent national authority to provide the information, or explain why it cannot be provided, to the requested Central Authority in such time as to enable it to comply with that timeframe. Nonetheless, all competent authorities involved should strive to provide the reply even more quickly than within this maximum timeframe. (86) The fact that the meetings of Central Authorities are to be convened, in particular, by the Commission within the framework of the European Judicial Network in civil and commercial matters in compliance with Decision 2001/470/EC, should not preclude other meetings of the Central Authorities from being organised. (87) Unless this Regulation provides otherwise, Regulation (EU) 2016/679 of the European Parliament and of the Council9 should apply to the processing of personal data by the Member States carried out in application of this Regulation. In particular, in order not to jeopardise the carrying out of a request under this Regulation, for example for the return of the child in accordance with the 1980 Hague Convention or for a court to consider the need to take measures for the protection of the person or property of the child, the notification of the data subject as required by Article 14(1)–(4) of Regulation (EU) 2016/679, for example about data requested for locating the child, may be deferred until the request for which this information is required has been carried out. This exception is made in accordance with Article 14(5) as well as points (f), (g), (i) and (j) of Article 23(1) of Regulation (EU) 2016/679. This should not preclude an intermediary, court or competent authority to which the information has been transmitted, from taking measures for the protection of the child, or causing such measures to be taken, where the child is at risk of harm or there are indications for such a risk. (88) In cases where a disclosure or confirmation of the relevant information could jeopardise the health, safety or liberty of the child or another person, for example where domestic violence has occurred and a court ordered the new address of the child not to be disclosed to the applicant, this Regulation strives to strike a delicate balance. While this Regulation should provide that a Central Authority, court or competent authority should not disclose or confirm to the applicant or to a third party any information gathered or transmitted for the purposes of this Regulation if it determines that to do so could jeopardise the health, safety or liberty of the child or another person, it should nonetheless underline that that should not impede the gathering and transmitting of information by and between Central Authorities, courts and competent authorities in so far as necessary to carry out the obligations under this Regulation. This means that where possible and appropriate, it should be possible for an application to be processed under this Regulation without the applicant being provided with all information necessary to process it. For example, where national law so provides, a Central Authority might institute proceedings on behalf of an applicant without passing on the information about the child’s whereabouts to the applicant. However, in cases where merely making the request could already jeopardise the health, safety or liberty of the child or another person, there should not be an obligation under this Regulation to make such request. (89) In order to ensure that the certificates to be used in conjunction with the application of Chapters III and IV of this Regulation are kept up to date, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of amendments to Annexes I to IX to this Regulation. It is of

9 Official footnote: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

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particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law- Making.10 In particular, to ensure equal participation in the preparation of delegated acts, the Council receives all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. (90) Continuity between the 1998 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 (‘Brussels II Convention’),11 Regulation (EC) No 1347/2000, Regulation (EC) No 2201/2003 and this Regulation should be ensured to the extent that the provisions have remained unchanged, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation, including by the Court of Justice, of the Brussels II Convention and of the Regulations (EC) No 1347/2000 and (EC) No 2201/2003. (91) It is recalled that for agreements with one or more third States concluded by a Member State before the date of its accession to the Union, Article 351 TFEU applies. (92) The law applicable in matters of parental responsibility should be determined in accordance with the provisions of Chapter III of the 1996 Hague Convention. When applying that Convention in proceedings before a court of a Member State in which this Regulation applies, the reference in Article 15(1) of that Convention to ‘the provisions of Chapter II’ of that Convention should be understood as referring to ‘the provisions of this Regulation’. (93) For the proper functioning of this Regulation, the Commission should assess its application and propose such amendments as appear necessary. (94) The Commission should make publicly available and update the information communicated by the Member States. (95) In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union (TEU) and to the TFEU, those Member States have notified their wish to take part in the adoption and application of this Regulation. (96) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (97) The European Data Protection Supervisor was consulted in accordance with the second subparagraph of Article 41(2) and Article 46(d) of Regulation (EC) No 45/2001 of the European Parliament and of the Council12 and delivered an opinion on 15 February 2018.13 (98) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States because of the differences between national rules governing jurisdiction and the recognition and enforcement of decisions, but can rather, by reason of the direct applicability and binding nature of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. 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, HAS ADOPTED THIS REGULATION:

10 Official footnote: OJ L 123, 12.5.2016, p. 1. 11 Official footnote: OJ C 221, 16.7.1998, p. 1. 12 Official footnote: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 13 Official footnote: OJ C 120, 6.4.2018, p. 18.

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Intro Brussels IIter Introduction

Introduction I. The objectives of the Regulation . . . . . II. The Regulation as part of European international family law . . . . . . . . . . III. Legal history and genesis as background of the Brussels IIter Regulation . . . . . . 1. The way to Brussels II . . . . . . . . . . . . 2. The way from Brussels II to Brussels IIbis . . . . . . . . . . . . . . . . . . . . 3. The way from Brussels IIbis to Brussels IIter . . . . . . . . . . . . . . . . . . . . IV. The Regulation as EU law . . . . . . . . . 1. Direct applicability . . . . . . . . . . . . . 2. EU external competence . . . . . . . . . . V. The scope of application of the Regulation . . . . . . . . . . . . . . . . . . . 1. International scope of application . . . . 2. Territorial scope of the Regulation . . . . a) In general . . . . . . . . . . . . . . . . . b) Application in the Member States . . . 3. Substantive scope of the Brussels IIter Regulation . . . . . . . . . . . . . . . . . . . a) Matrimonial matters . . . . . . . . . . . aa) Generalities . . . . . . . . . . . . . bb) Not: maintenance . . . . . . . . . . cc) Not: property consequences . . . . dd) Not: celebration and formation of marriage . . . . . . . . . . . . . . . ee) Marriage . . . . . . . . . . . . . . . b) Parental responsibility . . . . . . . . . . aa) Not: filiation or questions of parenthood or adoption . . . . . . bb) Parental responsibility . . . . . . . 4. Temporal scope of application . . . . . . . 5. Personal scope of application . . . . . . . VI. Interpretation of the Regulation . . . . . 1. Independence from national concepts . . 2. Systematic and purposive interpretation 3. Comparison with the Brussels I/Ibis Regulations . . . . . . . . . . . . . . . . . .

1 11 26 26 28 31 47 47 50 54 54 57 57 61

4. Systematic interpretation within the entire system of EU law . . . . . . . . . . . 5. Travaux préparatoires . . . . . . . . . . . . 6. Not: Practice Guide . . . . . . . . . . . . . VII. The reference procedure . . . . . . . . . . 1. In general . . . . . . . . . . . . . . . . . . . 2. Requirements of the reference procedure under Art. 267 TFEU . . . . . . . . . . . . a) No interpretation of national law . . . . b) Pending procedure . . . . . . . . . . . . c) Court of last instance . . . . . . . . . . . d) Relevance for the original dispute . . . e) Obligation to refer . . . . . . . . . . . . f) Formal requirements . . . . . . . . . . . 3. The effects of decisions of the CJEU . . . 4. The reference procedure under the former Art. 68 (3) EC Treaty . . . . . . . . 5. Fast track references . . . . . . . . . . . . . 6. History of references under the Brussels II and Brussels IIbis regime in a nutshell . . . . . . . . . . . . . . . . . . . .

98 98 98 100 101

VIII. 1. 2. 3.

102 103 105

4. 5.

106 107 108 109 110 110 112 114

6. 7. IX.

Jurisdictional regime – generalities . . . Element of internationality required . . Relations to non-Member States . . . . General concepts underlying heads of jurisdiction . . . . . . . . . . . . . . . . . Relevant point of time . . . . . . . . . . Establishing facts, burden of proof and ascertaining facts ex officio . . . . . . . Party autonomy . . . . . . . . . . . . . . Lack of hierarchical order and rules on lis pendens . . . . . . . . . . . . . . . . . Recognition and enforcement – generalities . . . . . . . . . . . . . . . . .

116 117 118 120 120 122 122 123 126 130 132 138 139 140 143

144

. . .

150 150 152

. .

154 163

. .

165 166

.

170

.

172

X. Particular delicacy of the topics touched upon . . . . . . . . . . . . . . . . . . . . . . XI. State liability for incorrect application of the Regulation . . . . . . . . . . . . . . . .

176 180

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 Comunitarisation of 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 (2007), p. 53; Dickinson, Realignment of the Planets – Brexit and European Private International Law, IPRax 2021, 213; U. P. Gruber/Möller, Die Neufassung der EuEheVO, IPRax 2020, 393; Heiderhoff, Art. 15 EuEheVO, das Kindeswohl und die EuEheVO 2019, IPRax 2020, 521; Honorati, Verso una competenza della Comunità Europea in materia di diritto di famiglia?, in: Bariatti, p. 3; M. Lehmann, Brexit and the Brussels Convention: Its All Over Now, Baby blue?, EAPIL Blog of 12 February 2021; 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 (2008), p. 373; McEleavy, Applicable Law and Relation with Third States: The Use and Application of Ha-

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bitual Residence, in: Malatesta/Bariatti/Pocar, p. 269; Meeusen, Op weg naar een comunautair internationaal familie(vermogens)recht?, in: Europees Internationaal Familierecht (2006), p. 1; Mosconi, Europa, famiglia e diritto internazionale privato, Riv. dir. int. 2008, 347; 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; G. 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; A. Schulz, Die Neufassung der Brüssel IIa-Verordnung, FamRZ 2020, 1141.

I. The objectives of the Regulation The Brussels IIter Regulation like its immediate predecessor, the Brussels IIbis Regulation, is probably 1 the most important act on international family law, certainly within Europe.1 The Brussels IIbis Regulation had dramatically changed the law and the practice of the law for families with connections with more than one EU Member State.2 The Brussels IIter Regulation pursues a number of objectives. These objectives are enshrined in the Recitals to the Regulation and most of them already also in the Recitals to its predecessors, the Brussels II and Brussels IIbis Regulations. Primarily, the present Regulation intends to facilitate the judicial treatment of suits and judgments 2 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 EUand 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 I/Ibis Regulation. The 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 parental responsibility are concerned, the Regulation removes existing differences and difficulties to a great deal. Like the Brussels Ibis Regulation, the Brussels IIter Regulation is also based on the principle 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 obey to the provisions of the Regulation. The basic principle of mutual trust implies, and interacts with, the principle of mutual recognition of decisions and judicial orders.6

1 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. 2 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. 3 Recital (1); Recital (4) Brussels II Regulation. 4 Recital (1); see also Recital (4) Brussels II Regulation; see thereto also infra Introduction notes 21 et seq. 5 See Recital (21); see also – under the Brussels I Regulation – 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. 6 See only ZW (Case C-454/19), ECLI:EU:C:2020:947 para. 49; A-G Rantos, Opinion of 23 February 2021 in Case C-603/20, ECLI:EU:C:2021:126 para. 61.

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Intro Brussels IIter Introduction 4

A further purpose the Regulation aims at is to base jurisdiction, and thereby the respondent’s obligation to submit to the competent court’s jurisdiction,7 on uniform and fair connecting factors. The respondent must defend him- or herself only at places to 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 led8 and in parental matters in particular of the interests of the child.9 Jurisdiction in parental matters is therefore generally founded where the child normally lives.

5

Like the Brussels Ibis Regulation, the Brussels IIter Regulation has also as one of its objectives to 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”10 and excludes the Common Law doctrine of forum non conveniens whole-handedly and outrightly11 the Brussels IIter Regulation is slightly less strict. If the interests of the child so require, Art. 12 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 seised whether or not to entertain a suit; apart from the mentioned exception the court is strictly bound by the provisions of the Regulation.12 This is not subject to any sympathy13 or antipathy towards the then CJEU’s decision in Owusu14 or to the unpopularity of Owusu in certain jurisdictions.15 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.16 Any alteration of the approach prevailing under the Brussels I/Ibis regime as the role model would certainly had to be followed in the field of Brussels IIter which is insofar epigonal to Brussels I/Brussels Ibis. Yet Arts. 33; 34 Brussels Ibis Regulation have not altered the policy substantially.17 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.18 But this misses Art. 6 (and its underlying ties with Art. 5 Brussels Ibis Regulation). Any regime erected in the Brussels IIter Regulation excludes application of domestic rules in the field covered.19 The Brussels IIter Regulation aims at eliminating any obstacles to the Internal Market by disregarding any national particularities and by safeguarding a uniform application.20 7 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. 8 See in effect Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26. 9 See Recitals (12), (13). 10 See Recital (11); see also – on the Brussels I Regulation – Owens Bank Ltd. v. Bracco (Case C-129/92), [1994] ECR I-117 para. 32; Custom Made Commercial Ltd. v. Stawa Metallbau GmbH (Case C-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. 11 Andrew Owusu v. Nugent B. Jackson (Case C-281/02), [2005] ECR I-1383 paras. 37 et seq. 12 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) Brussels IIbis Regulation that the residual jurisdiction under national law comes into play only where no court of a Member State has jurisdiction; to the same avail e.g. Legendre, RCDIP 2021, 147, 151; see further infra Introduction notes 109 et seq. 13 As expressed by A-G Saugmandsgaard Øe, Opinion of 20 September in Case C-398/18 PPU, ECLI:EU:C: 2018:749 paras. 26–27. 14 Andrew Owusu v. Nugent B. Jackson (Case C-281/02), [2005] ECR I-1383. 15 Tentatively contra Cook v. Plummer [2008] EWCA Civ 484, [2008] 2 FLR 989, 992 [10] (C.A., per Thorpe L.J.). 16 See Cook v. Plummer [2008] EWCA Civ 484, [2008] 2 FLR 989, 992 [10] (C.A., per Thorpe L.J.). 17 Contra Mittal v. Mittal [2013] EWCA Civ 1255 [40], [2014] Fam. 102, [2014] 1 FLR 1514 (C.A., per Lewison L.J.). 18 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.). 19 Cass. RDIPP 2021, 146, 147. 20 UD v. XB (Case C-393/18 PPU), ECLI:EU:C:2018:835 para. 40.

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As far as matters of parental responsibility are concerned, the Regulation takes account of the specific 6 character of these disputes and aims primarily at the protection of the best interests of the child.21 In so far as advisable with respect to its age and maturity the child must for instance be heard.22 Art. 21 features amongst the most important novelties for practical purposes,23 wresting away another piece of procedural autonomy from the Member States and transferring it into the autonomous grip of EU law. The child’s interests as the paramount concern may even override the original jurisdiction, although in exceptional cases only (Art. 12). In order to meet the specific need of children for expeditious decisions and their speedy enforcement in parental matters the Brussels IIter Regulation provides also that in urgent cases decisions are given and enforced in appropriately short time (see Art. 24 (1) and the fast track procedure under Arts. 43; 47). Though it could be regarded as rather a technical matter it is also of high practical importance that the Regulation aims at the widest possible avoidance of concurrent proceedings in different courts and of differing judgments on the same matter.24 Yet a discretionary transfer generally does not form part of the array of Regulation instruments.25

7

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.26

8

The Brussels IIter Regulation aims at continuity with respect to its predecessors, the Brussels II and IIbis Regulations.27 Recital (90) makes this clear beyond doubt:(90) Continuity between the 1998 Convention 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 (‘Brussels II Convention’) (11), Regulation (EC) No 1347/2000, Regulation (EC) No 2201/2003 and this Regulation should be ensured to the extent that the provisions have remained unchanged, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation, including by the Court of Justice, of the Brussels II Convention and of the Regulations (EC) No 1347/2000 and (EC) No 2201/2003.

9

Last but not least the Brussels IIter Regulation aims at continuity and at consistency with the inter- 10 pretation and application of the Brussels Ibis Regulation insofar as these instruments contain comparable provisions. The Brussels Ibis Regulation and the Brussels IIter 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 I/Ibis, Brussels II, Brussels IIbis and Brussels IIter Regulation. The ever-rising number of CJEU decisions under the Brussels II to IIter system and the plethora of decisions on the Brussels I/Ibis Regulations (and their predecessor, the Brussels Convention, originally of 1968) 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 Once the Treaty of Amsterdam had the introduced the then EC competence for matters of private international law and international procedural law in Arts. 65; 61 lit. c EC Treaty, first the EC, afterwards the EU has penetrated, and deeply invaded into, the territory even of international family law, with today – after the Treaty of Lisbon has become effective – Art. 81 TFEU carrying the torch. A whole body of rules and EU acts is developing, though sometimes at a modest pace. Yet, the Com21 See Recitals (12), (13), (33); Arts. 15; 23 (a); see also Inga Rinau (Case C-195/08) [2008] ECR I-5271 para. 51. 22 See Recital (19) and Arts. 11 (2), 41 and 42. 23 In detail Böhm in Garber/Lugani (Hrsg.), Die neue Brüssel IIb-VO (2022). 24 Arts. 19; 22 (c), (d); 23 (e), (f). 25 Golubovich v. Golubovich [2010] 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). 26 Recital (21); see also Arts. 31; 41; 42 and the CJEU in Inga Rinau (Case C-195/08), [2008] ECR I-5271 para. 50. 27 See in effect Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26.

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11

Intro Brussels IIter Introduction mission was not shy to seize upon a previous Convention project and thus paved the waves 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 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. Reports28 and Action Plans29 are still to follow, though.30 12

Yet, this forms only part of an overall plan of building a European private international law lato sensu.31 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 instrument also aimed at amending the Brussels IIbis Regulation,32 but after its failure at the grand level it has been as the first case33 of a successful Enhanced Cooperation yet reduced to dealing with the law applicable to divorce, separation and annulment of marriage.34 It became effective as of 21 June 2012. The EU Maintenance Regulation35 has already become effective as of 18 June 2011 (with an extraordinarily complicated legislative technique referring to the Hague Maintenance Protocol36 and indirectly and not explicitly to the 28 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. 29 Communication from the Commission to the European Parliament and the Council – The Hague Program: 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. 30 See on the European agenda Boele-Woelki, Sept. [2006] IFL 169. 31 See only Boele-Woelki, Molengrafica (2003), 325; Boele-Woelki/van Ooik, Molengrafica (2003), 343; BoeleWoelki/van Ooik, September [2006] IFL 149; Tonolo, Riv. dir. int. 2005, 797; Calo in Mélanges en l’honneur de Mariel Revillard (2007), p. 53. 32 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 (2007), p. 267; Bariatti/Ricci (eds.), Lo scogliomento di matrimonio nei regolamenti europei: da Bruxelles II a Roma III (2007); Bonomi in FS Roland Bieber (2007), p. 771, 776–783; Nascimbene in Carbone/Queirolo (eds.), Diritto di Famiglia e Unione Europea (2008), p. 207; Queirolo in Carbone/Queirolo (eds.), Diritto di Famiglia e Unione Europea (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; R. Wagner, FamRZ 2003, 803. 33 See Hummer, EuZ 2011, 78. 34 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. 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; BoeleWoelki, Yb. PIL 12 (2010), 1. 35 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; 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. 36 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).

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EU Council Decision37 to ratify that Hague Protocol).38 The original Rome III Proposal was felt 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.39 Previously, this project – under the names either of Brussels III or Rome III40 – was meant also to cope with matrimonial affairs including property consequences,41 and divorce.42 Reduced to dealing with divorce the Rome III Proposal foresaw to allow a limited choice of court in matrimonial matters, to abolish Art. 6, to modify Art. 7 Brussels IIbis Regulation and to add conflicts rules on the dissolution of marriages to the present Brussels IIbis Regulation which should provide for the eventual application of foreign divorce law. In particular, Sweden most strongly disagreed with the possibility to apply foreign divorce law instead 13 of the most liberal Swedish divorce law.43 Malta opposed from the other end, still nurturing a national legal order relying on the canonic verdict of divorce.44 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.45 A period of uncertainty about the fate of Rome III ensued.46 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.”47 This succeeded after a Proposal48 and proper empowerment49 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.50 “Rome III est mort. Vive Rome III!”51 The introduction of (restricted) party autonomy at the grand level52 and the emphasis placed on the habitual residence as the primary connection factor, relegating 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.53 Another possibility previously considered 37 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. 38 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; Kohler in Liber amicorum Kurt Siehr (2010), p. 277. 39 Baur, (2003) 5 Yb. PIL 177, 185. 40 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; R. Wagner, FamRZ 2003, 803. 41 On this aspect in particular e.g. Kröll in Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008), p. 379. 42 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; Lipp in Gottwald (ed.), Perspektiven der justiziellen Zusammenarbeit in der Europäischen Union (2004), p. 21. 43 The European Council meeting of 27/28 January 2008 could therefore not reach agreement on the Proposal. 44 See on the backgrounds in more detail Martiny, FPR 2007, 191 et seq.; Kohler, FPR 2008, 193; Kohler, FamRZ 2008, 1673, 1678 et seq.; Hess in FS Dieter Leipold (2009), p. 237, 224 et seq. 45 See McEleavy in Boele-Woelki (ed.), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003), p. 509; Hartley, (2005) 54 ICLQ 813; Carlson/Cooke, [2007] Fam. L. 920. 46 See R. Wagner, FamRZ 2009, 269, 275–281. 47 See the decisions taken at the Council meeting of 6 June 2008: EU Council ~ Factsheet ~ (http://www.consi lium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/101000.pdf). See also Council Doc. 11653/08, p. 23. 48 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. 49 JUSTCIV 100 JAI 144. 50 See Recital (6) Regulation (EC) No. 1259/2010. 51 Lardeux, D. 2011, 1835. 52 In detail in particular Franzina, Riv. dir. int. 2011, 488. 53 See Mankowski in Staudinger, BGB, Artt. 13–17b EGBGB (ed. 2011), Vor Art. 13 EGBGB note 46.

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Intro Brussels IIter Introduction was the small change of revising the Brussels IIbis Regulation54 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.55 Furthermore, by that time there were more general speculations that the United Kingdom would hinder any further unification of private international law in the EU.56 The final verdict on further PIL-unification in the EU has not been given, though.57 14

The Maintenance Regulation is a régulation quadruple addressing issues of jurisdiction, applicable law, recognition and enforcement, and cooperation. Its central goal is the complete abolition of 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.58

15

After a protracted legislative history, the Property Regulations59 have eventually seen the light in June 2016 and have become effective for spouses who have concluded their marriage on or after 29 January 2019. As for general Regulations binding all EU Member States (minus Denmark) the respective Proposals60 were eventually and effectively vetoed in the Council by Poland and Hungary in December 2015.61 They did thus not reach the unanimity required by Art. 81 (3) TFEU. Consequentially, the then Luxemburg Presidency officially declared them as finally failed.62 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, Italy, Malta, Luxemburg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and Finland63) was determined to accomplish an Enhanced Cooperation and the Commission submitted respective Proposals64. These Proposals rather mirrored the original Proposals65 and not any compromises66 which had been developed in the meantime. At record breaking pace,67 the final Regulations were promulgated already in the very same month in which the Enhanced Cooperation had been sanctioned68. 54 See de Boer in Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008), p. 321. 55 See COM (2010) 105 final p. 3 sub 2.1. 56 Boele-Woelki, Ars Aequi Katern 101 (2006), 5643. 57 See for instance Martiny in FS Jan Kropholler (Tübingen 2008), p. 373. 58 See preceding fn. 59 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. 60 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. 61 Video coverage available at http://video.consilium.europa.eu/webcast.aspx?ticket=775-979-16687. 62 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://consi lium.europa.eu/en/meetings/jha/2015/12/03-04. 63 Recital (11) COM (2016) 107 final. 64 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. 65 Trüten, EuZ 2016, 94. 66 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. 67 Mankowski, ZEV 2016, 479. 68 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

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Additionally, a further milestone has been reached in the area of the law of succession.69 After extensive scholarly preparation,70 first a Green Paper71 and then a Proposal72 were tabled. Another time limited party autonomy and a switch to the habitual residence as the main connection factor are the main characteristics and most prominent issues.73

16

The overall picture is completed by Regulation (EU) 606/2013,74 coping with protective measures as regards adults. Its Recital (3) underlines the policy pursued: “In a common area of justice without internal borders, provisions to ensure rapid and simple recognition and, where applicable, enforcement in another Member State of protection measures ordered in a Member State are essential to ensure that the protection afforded to a natural person in one Member State is maintained and continued in any other Member State to which that person travels or moves. It is necessary to ensure that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Art. 3(2) of the Treaty on European Union (TEU) and Art. 21 TFEU, does not result in a loss of that protection.”

17

In the wider context the Hague Adult Protection Convention75 should be mentioned, too. If one lim- 18 its the arena of European international family and succession law by the formal criterion that only Acts originating from the EC or EU constitute that arena, the Hague Adult Protection Convention does not form part of European international family and succession law. Materially, however, it can be seen as somewhat complementary to the second field covered by the Brussels IIter Regulation, namely parental responsibility. The Hague Child Protection Convention76 and the Hague Child Abduction Convention77 touch upon that delicate issue, and the Hague Adult Protection Convention is designed to complement the Hague Child Protection Convention which in turn has its own and subtle relationship with the Brussels IIter Regulation.78 Whereas up to 2012 it was still quite justified to assert that the landscape of European international family and succession law was inundated and littered with Proposals and Green Papers,79 the mist

69

70

71 72

73 74 75 76 77 78 79

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; Rudolf, ÖNotZ 2005, 297; Blum, ZErb 2005, 170; Lagarde in Obra homenaje al Profesor Julio D. González Campos (2005), p. 1687; 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. Green Paper Succession and Wills, 1 March 2005, COM (2005) 65 final. 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 Ocotber 2009, COM (2009) 154 final. Commented upon e.g. by Dutta, RabelsZ 73 (2009), 457; Dörner, ZEV 2010, 221; Buschbaum/Kohler, GPR 2010, 106; Bonomi in Liber amicorum Kurt Siehr (2010), p. 157; Schurig in FS Ulrich Spellenberg (2010), p. 343. See only Kindler, IPRax 2010, 44; Kindler in Liber amicorum Kurt Siehr (2010), p. 251. Regulation (EU) No 606/2013 of 12 June 2013 on mutual recognition of protection measures in civil matters, OJ EU 2013 L 181/4. Hague Convention on the International Protection of Adults of 13 January 2000, HCCH No 35. Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996, HCCH No 34. Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, HCCH No 28. On that relationship Campuzano Díaz, Cuad. Der. Trans. 12 (1) (2020), 97. Dickinson, [2005] 1 JPrIL 197, 204.

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19

Intro Brussels IIter Introduction has cleared considerably. The Maintenance Regulation and the Succession Regulation are in force. No more Green Papers linger around which would be mere formative proposals designed to stir and encourage debate.80 Even more abstract Action Plans81 and Programmes82 have been announced or predicted for a rather longish period already. But such programmatic announcements have lost of their force overtime and cannot be considered really burning issues anymore. Serious plans to cope with the question as to whether pre-marital, pre-nuptial or ante-nuptial agreements will be covered or can still serve as a useful instrument of marriage planning at all83 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 matter is on the retreat has come to a halt. Art. 81 (3) TFEU and the requirement of unanimity works its vile if one is not prepared to resort to Enhanced Cooperation. 20

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.84 This would be a true Europeanisation of family law if it ever will be implemented. The EU would really become an incoming tide.85 A privately established Commission on European Family Law consisting of 26 scholars from 21 countries86 has commenced its respective work in 200187 starting with the grounds for divorce.88 Its final goal is some kind of Restatement of European Family Law. Some bundles of so-called Principles have already been published89 after intense comparative preparation.90 Details consist e.g. in some pledge for an additional regime of matrimonial property.91 In some areas, the case law of the ECHR92 might serve as an initial spark for, and thus prompt, legislative action in the farer future.93 To this, some judicial developments at the level of the CJEU might be added.94 It can with some right be said that a European family law is under construction in many regards95 even with regard to the long failed attempt to introduce a European Constitution.96 Yet predictions grow 80 Harper/Frankle, March [2006] IFL 13. 81 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. 82 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. 83 See Ries, [2005] IFL 165. 84 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; Antokolskaia, (2004) 6 Eur. J. L. Reform 145; Jänterä-Jareborg, SvJT 2005, 804; Costa, Familia 2006, 125. 85 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 (2006), p. 189. 86 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. 87 In more detail see Boele-Woelki, ERA-Forum 1/2003, 142, 148–154. 88 As some kind of result see the survey Boele-Woelki/Braat/Sumner (eds.), European Family Law in Action I: Grounds for Divorce (2003). 89 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. 90 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). 91 Martiny in FS Dieter Schwab (2005), p. 1189. 92 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. 93 See Pintens in FS Georg Ress (2005), p. 1047. 94 See in some detail Gonzalez Beilfuss, AEDIPr 2004, 117, in particular 165–171 and also van den Eeckhout, NTER 2004, 302. 95 See e.g. Caraciollo di Torrella/Masselot, (2004) 29 Eur. L. Rev. 32.

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more and more pessimistic since the need for unanimity puts real limits on what for some time in the past seemed an unstoppable Brussels juggernaut.97 On its quest towards a European (vulgo EU) international family law, the competence of the EU still might be questioned, though.98 One might feel tempted to ask which connections with the aims and goals of the EU as spelled out in the first Arts. 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.99 The most recent fundamental freedom enshrined in Arts. 21; 18 TFEU certainly accelerated and fuelled the overall development.

21

The reason why the EU claimed competence even for international family law were the 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 in turn could prove detrimental with regard e.g. to maintenance claims, successions or the ability to re-marry again.100 On this ground “pluralism of laws” was accused to be an obstacle in the way of European integration and a hindrance to mobility.101

22

Yet, closer scrutiny reveals just how spurious this argument is. At least direct consequences for the participation in economic relations cannot be identified.102 This applies the more so with regard to the extension of the European regime to all matters of parental responsibility.103 In essence, no balance was struck but precedence was given to the free circulation of decisions.104 The presumption that enough of a common core of pan-European family values throughout all Member States exists is dubious, too.105

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On the other hand, yet again, some justification can be gained if the free movement of workers is interpreted in the light of Art. 8 ECHR and is expected to pay proper attention to the individual right to a family life.106 Limping marriages or affiliations might be detrimental.107

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In fact, the Commission and the other EU organs based the EU competence to implement the Brus- 25 sels II and Brussels IIbis Regulations on Arts. 61 lit. c; 65 EC Treaty and, after the Treaty of Lisbon became effective, the Brussels IIter Regulation on Art. 81 TFEU. Alternatively, a thought or two might have been spent on Art. 18 (2) in conjunction with Art. 251 EC Treaty,108 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 activity109 nor to exercise fundamental freedoms in cross-border activity as such,110 but

96 Pintens in FS Dieter Schwab (2005), p. 1209. 97 Hodson, [2005] IFL 235, 239. 98 See only Honorati in Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 3. 99 Arnull, (1999) 24 Eur. L. Rev. 516, 519. 100 Harald Koch in FS Kostas Beys (Athinai 2003), p. 733, 742. 101 Harald Koch in FS Kostas Beys (Athinai 2003), p. 733, 742; Dethloff, AcP 204 (2004), 544, 558 et seq. 102 Becker-Eberhard in FS Kostas Beys (Athinai 2003), p. 93, 95. 103 Jessurun d’Oliveira in Essays in Honour of Sir Peter North (2002), p. 111, 131 et seq. 104 Jessurun d’Oliveira in Essays in Honour of Sir Peter North (2002), p. 111, 131 et seq. 105 Jessurun d’Oliveira in Essays in Honour of Sir Peter North (2002), p. 111, 132. 106 See Carpenter v. Secretary of State (Case C-60/00), [2002] ECR I-6279 paras. 40 et seq.; Dethloff, AcP 204 (2004), 544, 558. 107 Dethloff, AcP 204 (2004), 544, 558 et seq. 108 Spellenberg in FS Ekkehard Schumann (2001), p. 421, 427; Becker-Eberhard in FS Kostas Beys (Athinai 2003), p. 93, 95 et seq. 109 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. 110 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.

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Intro Brussels IIter Introduction are confined to cases of a not purely internal nature111 containing some cross-border-element.112 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 given rule and in a certain context that is more than only an indication where the TFEU attaches and affixes those matters to.

III. Legal history and genesis as background of the Brussels IIter Regulation 1. The way to Brussels II 26

The fundamental freedoms of the EC Treaty guaranty since 1958 the free movement of workers in the EU for employment purposes.113 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 break-down 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 EU into a Union of citizens through the Maastricht Treaty of 1992.114 Particularly great differences existed between German and French law115 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.116 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.

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This situation led to an initiative to draft an EU Convention on matrimonial matters after the model of the Brussels Convention of 1968 which like its successor, the Brussels I Regulation, had expressly excluded most family matters.117 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.118 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.119 Art. 65 EC Treaty provided now 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,120 on 29 May 2000 the Council adopted the slightly modified text as Regulation No 1347/2000.

111 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. 112 Egon Schempp v. Finanzamt München V (Case C-403/03), [2005] ECR I-6421 paras. 20–22. 113 Art. 39 et seq. EC Treaty. 114 See Report Borrás, paras. 1 et seq.; Niklas, pp. 6 et seq. 115 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. 116 See Niklas, pp 11 et seq. 117 See Art. 1 (2) Brussels Convention and Brussels I Regulation. 118 For the detailed history of the Convention see Report Borrás, paras. 7 et seq. 119 See thereon already supra Introduction note 10. 120 OJ EG 1999 C 247/1.

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This Brussels II Regulation entered into force on 1 March 2001.121 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 Already shortly after the entry into force of the Brussels II Regulation work on the revision of this 28 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.122 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.123 The revision of Brussels II was rapid. The Commission presented a Proposal in 2002.124 The Council adopted the text as Regulation No 2201/2003 on 27 November 2003. The instrument has to be applied from 1 March 2005 on125 and supersedes the Brussels II Regulation.126 Again, Denmark is the only EU Member State to whom the Regulation does not apply. Whereas practitioners were not given more than only a few years to accommodate to, and become fa- 29 miliar 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 were in use, and matters were made even worse if practitioners talk of “Brussels II” when they in fact meant the superseding Brussels IIbis Regulation which should bear a qualification distinguishing it from its predecessor. The terminological confusion became 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. Given the date when it became effective, the Brussels IIbis Regulation took some time to make its way in every-day court practice in the Member States.127 Yet the number of reported cases grew steadily although it has never been a match for the flood generated by the Brussels Ibis Regulation. But nonetheless the tide appears to be rising and ever rising. Perhaps the English law reports provide the best proof for the established importance of the Brussels IIbis Regulation: Few issues of FLR or FCR passed before Brexit without a case earmarked “(Brussels II revised Regulation)” to be reported.

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3. The way from Brussels IIbis to Brussels IIter The way from the Brussels IIbis to the Brussels IIter Regulation – also called Brussels IIbis Recast128 – 31 was not dramatic, but evolutionary. Sixteen years between the promulgation dates of the two Regulations are telling. The Brussels IIter Regulation is not the answer to loud cries for legal reform, generated by burning needs. Furthermore, it is a result of organised and orchestrated legal reform in a constant process. However, the reform process did not follow the footsteps, even less the blueprint, seemingly established in the processes leading to the Brussels Ibis Regulation and the EIR 2015 re-

121 122 123 124 125 126 127

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) plus for Austria Roth/Reith in FS Thomas Sutter-Somm (2016), p. 521. 128 E.g. Borrás, REEI 38 (dic. 2019) http://www.reei.org/index.php/revista/num38/tribuna.

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Intro Brussels IIter Introduction spectively. Both occasions saw major reports being drafted by eminent academics,129 officially ordered by the Commission. 32

On 15 April 2014, the Commission adopted a Report on the application of Council Regulation (EC) No 2201/2003.130 That Report concluded, as Recital (1) summarises, that the Brussels IIbis Regulation is a well-functioning instrument that has brought important benefits to citizens, but that the existing rules could be improved. On 30 June 2016 the Commission tabled a Proposal for a Recast of the Brussels IIbis Regulation.131 The specific details of this Proposal will be discussed in the commentaries on the rules possibly affected in detail. Its main goals included i.a. to codify major case law from the CJEU and the ECtHR.132 A radical break with the Brussels IIbis Regulation has never been intended.

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The focus of the Proposal generally was on parental responsibility,133 not on divorce proceedings.134 This is evident from the fact that all six shortcomings which the Commission primarily wanted to address and to cure, relate to parental responsibility.135 It is even more evidenced since the Proposal alleged that the rules on divorce proceedings and the Common Provisions are regarded as remaining unchanged in the meaning of a Recast. The list of “unchanged” provisions in this sense read: 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).136 In fact, continuity – particularly as regards the jurisdiction rules – in matrimonial matters, in most instances reaches back to the Brussels II Regulation and even to the Brussels II Convention of 1998,137 giving continuous relevance to the Report Borrás as a valuable interpretatory means.138 On the contrary, several substantial modifications were proposed with the aim of improving 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.139 Exequatur was proposed to be abolished.140 The cited list is not completely reliable and comprehensive, though, for it did not include newly introduced rules (like the proposed Art. 16 with the incumbent Art. 16 being renumbered as new Art. 15, or the proposed Art. 20 on the hearing of the child141).

129 Brussels Ibis Regulation: The Heidelberg Report = Hess/Pfeiffer/Schlosser, The Brussels I Regulation 44/2001. Application and Enforcement in the EU (2008). EIR 2015: Hess/Oberhammer/Pfeiffer, European Insolvency Law – Heidelberg-Luxembourg-Vienna Report (2014). 130 COM (2014) 225 final. 131 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). 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) pp. 3 et seq. 133 See only Schlauß, ZKJ 2016, 348, 350; Frohn, NIPR 2016, 441 at 441; Honorati, RDIPP 2017, 248; Borrás in Liber amicorum Christian Kohler (2018), p. 23, 24; Pirrung in Liber amicorum Christian Kohler (2018), p. 403; Carpaneto, RDIPP 2018, 974; Carpaneto in Bergamini/Ragni (eds.), Fundamental Rights and Best Interests of the Child in Transnational Families (2019), p. 265. 134 U. P. Gruber/Möller, IPRax 2020, 393 at 393. 135 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. 136 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. 137 Borrás, REEI 38 (dic. 2019) http://www.reei.org/index.php/revista/num38/tribuna. 138 Borrás in Liber amicorum Christian Kohler (2018), p. 23, 24. 139 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. 140 Frohn, NIPR 2016, 441, 443. 141 Frohn, NIPR 2016, 441, 442. In detail Ubertazzi, (2017) 13 JPrIL 568.

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Alternative proposals from academia142 certainly also gave first priority to parental responsibility,143 34 but also, secondarily, pleaded for some changes with regard to divorce, too.144 The academic spectre covered was wider and ranged from scope145 and jurisdiction146 via provisional measures147 or recognition and enforcement148 to cross-border placement of children149. Even after the entry into force of the Brussels IIter Regulation some needs for further reform have been identified.150 For instance, an own sub-category of unaccompanied minors appears sensible.151 As the old adage runs: After the game is before the game. It is for sure that one future day a Brussels IIquater Regulation will repeal the current Brussels IIter Regulation. The wheel is turning and ever turning, and the times, they are a’changing, permanently. The focus on parental responsibility is evidenced even by the proposed extension of the official title of the Recast Regulation, “and on international child abduction” being added which does not appear in the denomination of the preceding Regulation. Particularly, the Commission does not envisage to intervene in the race to court and the ensuing forum shopping enabled by the wide array of jurisdiction available under Art. 3 in divorce proceedings. It did not address scope issues related to modern societal developments, either.152

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The Proposal did not take any progressive steps towards the extension of party autonomy in jurisdictional affairs beyond the incumbent Art. 12 Brussels IIbis Regulation. Insofar as divorce was concerned, it was believed that a number of Member States feared that some, if rather indirect kind of recognition of same-sex marriages would be possibly introduced by the backdoor. Hence, in the background controversies about the inclusion of same-sex marriages might have been feared, particularly so in the light of the unanimity requirement established by Art. 81 (3) TFEU.153 Opening a battleground and possibly having to resort to an Enhanced Cooperation only, would have come with too high a price in the central fields of reform, namely parental care, return of abducted children and cooperation.

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Minutely following the model established by the Brussels Ibis Regulation,154 the Proposal ventured 37 to supersede the exequatur proceedings as established in Arts. 47–52 Brussels IIbis Regulation and to introduce a model combining direct enforceability (Art. 30 Proposal) with some ingressions into enforcement proceedings (Arts. 31–36 Proposal) and an own set of proceedings for refusal of enforcement (Arts. 40–47 Proposal). Abandoning the declaration of enforceability and thus any system of exequatur remains the major and most important change implemented by the Recast ever since.155 Any need to obtain a declaration of enforceability in the Member State addressed in an additional intermediate procedure evaporates.156 Decisions originating in other Member States accompanied by appropriate certificates will be not only recognised, but enforced in the same manner as their counterparts originating domestically in the Member State addressed.157 Judgment creditors may directly

142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157

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. J. M. Scott, NIPR 2015, 27. Forcada Miranda, NIPR 2015, 36. See in particular Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13. Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 144. Cf. Rieck in Pfeiffer/Wittmann/Escher (Hrsg.), Europäisches Familienrecht im Spiegel deutscher, Wissenschaft und Praxis (2018), p. 45. Makowsky in Garber/Lugani (Hrsg.), Die neue Brüssel IIb-VO (2022); Köllensberger in Garber/Lugani (Hrsg.), Die neue Brüssel IIb-VO (2022); Reuß in Garber/Lugani (Hrsg.), Die neue Brüssel IIb-VO (2022). U. P. Gruber/Möller, IPRax 2020, 393, 396. Lazic´/Pretelli, YbPIL XXII (2020/2021), 155, 171; Lazic´, NPR 2021, 729, 733; cfl. Also González Beilfuss, YbPIL 22 (2020/21), 95, 112. Lazic´, NPR 2021, 729, 733. Recital (58); Lazic´, NPR 2021, 729, 733.

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Intro Brussels IIter Introduction advance to the competent enforcement bodies of the Member State addressed. The system of direct enforcement is introduced. 38

During its Milan Session of 16–18 September 2016, the Groupe Européen de Droit International Privé issued a Resolution on the Commission Proposal. It generally welcomed the proposed alterations158 and recommended 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.159 This Resolution was mainly based on Comments on the Commission Proposal, prepared by the SubGroup ‘Nationality’160.161

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Negotiations first in the Council and then with the European Parliament took their decent time. A promulgation of a final result some three years after the Proposal is not overly long,162 particularly not if compared with other Regulations in the field of European PIL. This final result consists of not less than 105 Arts. and 98 Recitals, making the Brussels IIter Regulation the longest Regulation in European PIL by far.163 This longish outcome is the result of a compromise.164 Since the Brussels IIter Regulation has its competence title in Art. 81 (3), unanimity was required, and a compromise thus was all the more difficult to broker.165 The threat, or the phantom, of enhanced cooperation as the alternative created a somewhat hostile environment for the negotiations.166 In particular completely abandoning exequatur in matters of parental responsibility was a package of its own, comprising that very abolition of exequatur and its counterweights in terms of options to refuse enforcement.167 Human rights issues also had to be taken into account properly.168 Overall, the focus clearly is on enhancing the position of children.169 In short, the major, the key changes in the fields of parental care and child abduction may be summarized as follows: – “introduction of an obligation to provide children with a genuine and effective opportunity to express their views in proceedings that concern them; – the abolition of exequatur; – the introduction of clearer deadlines for the determination of intra-EU child abduction cases; – rules on the circulation of authentic instruments and extra-judicial agreements; 158 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. 159 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-ResParENG-Final2.pdf. 160 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/Reunion%2026/PV-Trav-Fi nalv4_bis.pdf. 161 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, concering parental responsibility and child abduction, fn. 1 http://www.gedip-egpil.eu/documents/Milan%202016/Bx2b-ResPar-ENG-Fi nal2.pdf. 162 Cf. Frohn, FJR 2019, 16. 163 Brosch, GPR 2020, 179 at 179. 164 U. P. Gruber/Möller, IPRax 2020, 393 at 393; Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 48–51. 165 Frohn/Sumner, NIPR 2020, 391, 392. 166 González Beilfuss, YbPIL 22 (2020/21), 95, 96. 167 See Interinstitutional Dossier 2016/0190 (CNS) of the Council (24 November 2017) para. 6; Interinstitutional Dossier 2016/0190 (CNS) of the Council (21 January 2018) para. 6; Interinstitutional Dossier 2016/ 0190 (CNS) of the Council (30 November 2018) para. 11. 168 See e.g. Lazic´ in Paulussen/Tacazs/Lazic´/Rompuy (eds.), Fundamental Rights in International and European Law – Public and Private Law Perspectives (2016), p. 161. 169 Frohn/Sumner, NIPR 2020, 391 at 391.

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– clearer rules regarding the placement of children in other Member States; and – harmonisation of rules for enforcement.”170 An interesting overall aspect is that, for the first time in EU law, direct judicial communication gets an express legal basis, namely in Art. 86.171 However, it is fair to say that most changes are operational only in nature.172 The Brussels IIter Regulation pursues a conservative basic approach. It does not intend an overhaul of the system, but its improvement as Recital (1) makes clear. Its language is lauded as clearer, just as is its more child-centred approach in matters of parental responsibility.173 The best interests of the child become the centre of gravity.174

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Rather silently and in a clandestine manner, the Brussels IIter Regulation to a certain extent reshuffles 41 and reorganises the rules on jurisdiction in matrimonial matters without any major discussion in detail having taken place before. The core pillar of Art. 3 remained untouched, though, and alterations affected only residual jurisdiction and like second-line features.175 Expectations even after the Proposal were that alterations in the entire field were rather unlikely176 since strong political interests demanded so in the quest for unanimity required under Art. 81 (3) TFEU.177 Now Arts. 6; 7 Brussels IIbis Regulation which verged on the edge of incomprehensibility, are combined and re-formulated in Art. 6178 yet without any major change as to substance.179 The better option would have been an autonomous rule for residual jurisdiction,180 and it has to be hoped that this will eventually break through in a future Brussels IIquater Regulation.181 The same applies to a proper forum necessitatis182 which could follow the general idea pursued by Arts. 11 Succession Regulation; 11 Matrimonial Property Regulation; 11 Partnership Property Effects Regulation. Out-of-court or ‘private’ divorces in essence switch from a conflicts regime to a procedural recogni- 42 tion model.183 Freedom of circulation of the very result becomes the dish of the day.184 Arts. 64 et seq. are the vehicle, a late entry.185 These rules are for practical purposes the most important development in the field of matrimonial matters.186 However, the issue remains a hot spot and has not been fully resolved.187 In particular, it has not resolved the intricate questions of characterisation which

170 Blackburn/Michaelides, [2019] IFL 252 (252). 171 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459; González Beilfuss, YbPIL 22 (2020/21), 95, 114. 172 González Beilfuss, YbPIL 22 (2020/21), 95, 96. 173 Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 136. 174 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 140. 175 Frohn/Sumner, NIPR 2020, 391, 395; see also Biagioni, Riv. dir. int. 2019, 1169, 1170; Lupoi, Riv. trim. dir. proc. civ. 2020, 575, 577. 176 Bonomi, RCDIP 2017, 511. 177 Honorati, RDIPP 2017, 247, 249. 178 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 455; A. Schulz, FamRZ 2020, 1141 at 1141. 179 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 23; A. Schulz, FamRZ 2020, 1141 at 1141. 180 As already proposed in Art. 7 COM (2006) 399 final pp. 9–10. Thereon Kohler, FamRZ 2008, 1673, 1675. 181 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 24; González Beilfuss, NIPR 2021, 701, 712–713. 182 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 24–25. 183 Lobach/Rapp, FamRZ 2020, 83, 85; U. P. Gruber/Möller, IPRax 2020, 393 at 393 and 401; Dutta, FamRZ 2020, 1428; Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 29–31; Dimmler, FamRB 2021, 2, 4; González Beilfuss, YbPIL 22 (2020/21), 95, 96; Neumayr in Garber/Lugani (Hrsg.), Die neue Brüssel IIb-VO (2022) yy. In detail Bernasconi in Esplugues Mota/Diago Diago/Jiménez Blanco (eds.), 50 años de Derecho internacional privado de la Unión Europea en el diván (2019), p. 329; C. Mayer, StAZ 2020, 193. 184 Cf. Lazic´/Pretelli, YbPIL 22 (2020/2021), 155, 165, 167. 185 Introduced by Proposal of the Presidency, Doc. 14784/18, ST 14784 2018 INIT (30 November 2018). 186 Cf. González Beilfuss, YbPIL 22 (2020/21), 95, 96. 187 See Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 31–32; Nademleinsky in Liber amicorum Edwin Gitschthaler (2020), p. 171, 177–180.

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Intro Brussels IIter Introduction delineate Arts. 64 et seq. from Arts. 30 et seq. Given the subsidiarity of Arts. 64 et seq. to Arts. 30 et seq., one has to clarify whether a certain divorce qualifies already as a decision for the purposes of Arts. 30 et seq. Sometimes it accrues that an examination as to substance lifts above this threshold.188 Nota bene, the recognition of private divorces has been aligned to the recognition of authentic instruments,189 not to the recognition of court decisions proper. To treat private divorces as equivalent to judicial divorces in a wholesale manner appeared inacceptable since mutual trust requires a sound foundation in a basic control being exercised which is not guaranteed in the event of a private divorce.190 43

As to matters or parental responsibility, the child’s right to be heard might not be a completely new introductee, yet it is clarified and strengthened.191 It gets increased visibility. Art. 21 puts it centrestage also in those matters, extending it from the narrower abduction context.192 Art 12 UN Child Rights Convention and Art. 24 GRC clearly demand so and provide the framework. Recital (57) emphasises an important consequence namely that it is no longer possible to deny recognition and enforcement on the basis that the court of origin used a different method to hear the child than a court in the Member State addressed would do. Hence, the particularities of domestic procedural laws loose relevance, and only the result that the child was not heard (at all), matters.193 However, under the principle of procedural autonomy of the Member States, Art. 21 only invades in an evolutionary manner into procedural details how to conduct the hearing, and is mainly confined to mere recommendations.194

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In child abduction cases, the ‘overriding mechanism’, ‘override mechanism’ or ‘veto procedure’,195 formerly enshrined in Art. 42 Brussels IIbis Regulation and allowing the requesting court to overturn an order of non-return of the requested court which was based on Art. 13 (1) 1980 Hague Child Abduction Convention, is basically retained, with only small modifications.196 This is a political decision, bearing in mind the amount of criticism levelled against Art. 42 Brussels IIbis Regulation which perhaps got the most academic votes for jettisoning any single certain rule.197 The ‘overriding mechanism’ was the most controversial aspect of the rules on child abduction,198 if not of the entire Brussels IIbis Regulation. Yet, Art. 25 Brussels IIter Regulation may now indicate a small backdoor.199 Consensual elements and possibly mediation might gain more importance within the overall system.200

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Given the overall purpose to safeguard the best interests of the child and to alleviate cross-border proceedings and cooperation, the provisions on Central Authorities have also been modified and amended under the said auspices.201

46

After agreement was reached in the Council on 25 June 2016, the final Result was rapidly published in the OJ of 2 July 2019. It should not escape attention that such rapidity might be responsible for many editorial shortcomings in some linguistic versions, including the German, e.g., as regards the

188 C. Mayer, StAZ 2020, 193, 199; Sonnentag/Haselbeck, IPRax 2022, 22, 29. 189 Henrich, IPRax 2022, 37, 40. 190 Kohler/Pintens, FamRZ 2019, 1477, 1479; C. Mayer, StAZ 2020, 193, 200–201; Dutta, FamRZ 2020, 1428, 1429–1430; Kramme, GPR 2021, 101, 105. 191 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 147. 192 Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 129. 193 Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 130. 194 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 147. 195 Terminology differs from author to author. 196 Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 133–134. 197 See 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. 203. http://www.europarl/europa.eu/ RegData/etudes/STUD/2015/51003/IPOL_STU(2015)51003_EN.pdf; Kruger/Samyn, (2016) 12 JPrIL 132, 158–159; Beaumont/Lara Walker/Holliday, (2016) 12 JPrIL 211, 258; Lazic´, Recommendation p. 57. 198 Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 133. 199 González Beilfuss, YbPIL 22 (2020/21), 95, 108; Ní Shuilleabháin, YbPIL 22 (2020/21), 117, 132. 200 Cf. González Beilfuss, YbPIL 22 (2020/21), 95, 108–111. 201 In detail Zˇupan/Hoehn/Kluth, YbPIL 22 (2020/21), 183.

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use of capital letters or the numbering of some references.202 A particular peculiarity may be found in Annex III pt. 8.1. where an entry in Slovak language features in the German version.203

IV. The Regulation as EU law 1. Direct applicability The Regulation constitutes secondary EU law. In contrast to Directives the Regulation is directly applicable and needs no further implementation into national law (Art. 288 subpara. 2 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.

47

The Regulation takes further precedence over all non-conforming national law.204 Any contradicting 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.

48

With respect to the field covered by the Brussels IIter Regulation, the Member States are now no longer entitled to conclude, or accede to, international treaties which concern matters regulated in the Brussels IIter Regulation without the authorisation of the EU. In fact, that relates back already to the days of the Brussels IIbis Regulation. In a Common Declaration of 14 December 2000 to the Brussels I Regulation the Council and the Commission expressly adopted such view for the first time 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.205 Later on the very same principle was endorsed with regard to the Brussels I field in express and specific legislation: A separate Regulation provides for a special procedure of the negotiation and conclusion of such treaties in the fields of the Rome I and Rome II Regulations.206 An express counterpart in the field of International Insolvency Law for instance is missing, though, and the Brussels II field has not been graced, either.

49

2. EU external competence Where the EU possesses an internal competence, it disposes as well over an implied external competence as far as necessary for the effective use of the internal competence.207 This implied power of the EU concerns in particular the conclusion of treaties with Third States on matters for which an inter-

202 203 204 205 206

U. P. Gruber/Möller, IPRax 2020, 393 at 393; Brosch, GPR 2020, 179 at 179. U. P. Gruber/Möller, IPRax 2020, 393 at 393. See only A-G Vlas, NIPR 2019 Nr. 4 p. 103. See Common Declaration Sched. I no. 5 (German text published in, IPRax 2001, 259, 261). Regulation (EC) No. 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations, OJ EC 2009 L 200/25. 207 Commission of the European Communities v. Council of the European Communities (AETR) (Case 22/70), [1971] ECR 263, 275 para 28; Cornelis Kramer (Joined Cases 3, 4 & 6/76), [1976] ECR 1279, 1311 paras. 30–33; Draft Agreement establishing a European laying-up fund for inland waterway vessels (Opinion 1/76), [1977] ECR 741, 756 para 5; Convention No. 170 of the International Labour Organization concerning safety in the use of chemicals at work (Opinion 2/91), [1993] ECR I-1061, I-1079 para. 18; Competence of the Union to conclude international agreements concerning services and the protection of intellectual property (Opinion 1/94), [1994] ECR I-5267, I-5411 para. 76, I-5413 para. 82 et seq., I-5416 para. 95; Competence of the Union or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment (Opinion 2/92), [1995] ECR I-521, I-559 paras. 31–33; Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Opinion 2/94), [1996] ECR I-1759, I-1787 paras. 25–27; Cartagena Protocol (Opinion 2/00), [2001] ECR I-9713, I-9764 para. 45; Commission of the European Communities v. Kingdom of Denmark (Open Skies) (Case C-467/98), [2002] ECR I-9519, I-9556 para. 82.

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Intro Brussels IIter Introduction nal 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.208 51

With respect to the Brussels IIter Regulation the EU Member States are no longer entitled to conclude international treaties which are in conflict with the rules of the Regulation.209 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 this 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.210 The same principle must apply to the Brussels IIter Regulation.

52

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. 97 (1) as it was in Art. 61 Brussels IIbis Regulation.211 If the Member States had still retained the competence to conclude international treaties in the field covered by the Brussels IIbis or IIter Regulation no such authorisation would be needed; it would be not even admissible.

53

The Member States themselves can therefore only 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 IIter 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 54

Unlike the Brussels Ibis Regulation which in essence is founded on the defendant being domiciled in the EU,212 the Brussels IIter Regulation does not strictly define an international scope of application or scope ratione loci.213 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 recognises 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).

55

Hence, the fundamental principle is the same under both the Brussels IIter and the Brussels Ibis Regulations: Only the ensemble of the heads of jurisdiction in its entirety defines the international scope of application comprehensively.214 As some kind of thumb rule one might summarise that the Brussels IIter Regulation is applicable if one of the parties (be it the applicant or be it the respondent) has 208 See Oppermann/Classen/Nettesheim, Europarecht (7th ed. 2016), § 30 note 21. 209 In this sense, though only with respect to the Brussels I/Ibis Regulations: Kropholler/von Hein, Art. 71 note 2; Layton/Mercer, para. 11.060; Mankowski in Rauscher, Art. 71 Brüssel Ia-VO note 3; Staudinger in Rauscher, Einl. Brüssel Ia-VO note 21. 210 See Common Declaration Sched. I no. 5 (German text publ. in, IPRax 2001, 259, 261). 211 See the reference in EU Council – Factsheet – on the Council meeting of 6 June 2008 (http://www.consi lium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/101000.pdf). 212 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. 213 Boiché, Gaz. Pal. 2005, 1641; Pataut, RCDIP 94 (2005), 516, 520. 214 See Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), 27 November 2007, [2007] ECR I-10403 para. 26.

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his habitual residence within a Member State.215 The lone fact that the respondent is resident outside the EU does not trigger the automatic and per se inapplicability of the Regulation.216 For the purposes of recognition and enforcement it is clear that only decisions and orders 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.

56

2. Territorial scope of the Regulation a) In general The territorial scope of application of the Regulation corresponds regularly to that of EU law 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).

57

Whether a certain place belongs to the territory of a Member State is not determined by the Regulation or the EC Treaty but by the principles of public international law.217 Therefore if the continental shelf before the coast line 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.218

58

With respect to jurisdiction the necessary territorial element connecting the dispute with the forum 59 seised 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 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. 30 (1); 34 (1). Judicial divorces from Third States are subject to the domestic regimes on recognition of the Member States.219 As to jurisdiction, some courts held that the Brussels IIbis Regulation only applied as between parties resident in Member States.220 This appeared questionable in the light of Arts. 6; 7 Brussels IIbis Regulation and does not gather better support from the current Art. 6 Brussels IIter Regulation.

60

b) Application in the Member States In general, the Regulation applies in the entire territory of the respective Member State and also in 61 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; the Regulation applies even there, at least in certain cases. That 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 215 216 217 218

Nourissat in Fulchiron/Nourissat, p. 1, 7. Garber, EF-Z 2017, 235, 236. Questionable thus CA Lyon, EuLF 2008, II-26, II-27. See Herbert Weber v. Universal Ogden Services Ltd. (Case C-37/00), [2002] ECR I-2013. Herbert 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). 219 E.g. Elmaiah/F. S. Thomas, FamRZ 2018, 739. 220 Most prominently Cass. civ. D. 2020, 1409 = RCDIP 2021, 146 note Legendre.

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Intro Brussels IIter Introduction by the special association system 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. 62

On the other hand, on the territory of some Member States where the separate territorial units located 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

63

The Regulation is in force in the entire territory of Austria. 2) Belgium

64

The Regulation is in force in the entire territory of Belgium. 3) Bulgaria

65

The Regulation is in force in the entire territory of Bulgaria. 4) Croatia

66

The Regulation is in force in the entire territory of Croatia. 5) Cyprus

67

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).221 The Brexit has not changed this position. 6) Czech Republic

68

The Regulation is in force in the entire territory of the Czech Republic. 7) Denmark

69

As already mentioned Denmark abstains and has already abstained from the communitarisation and unionisation 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.222

70

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”.223 Danish negotiators succeeded to renegotiate the original opt out- into an opt in-mechanism in the Nice and Lisbon processes, yet this failed to get the constitutionally necessary approval by the Danish electorate in the referendum held on 3 December 2015.224 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 theoretically but has become increasingly unlikely after so many years have passed without any considerate action having been taken in this regard. At present, in relation to Denmark the Member States of the Brussels IIter Regulation have to resort to the rules of their national international procedural law on matrimonial and parental matters.

221 See also Layton/Mercer, para. 11.070 (with respect to the Brussels I Regulation). 222 Compare Recital 31 to the Regulation. 223 An overview which instruments of EU PIL are binding Denmark by one or the other means is provided by P. A. Nielsen, IPRax 2019, 449, 451–453. 224 P. A. Nielsen, IPRax 2019, 449, 451.

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8) Estonia The Regulation is in force in the entire territory of Estonia.

71

9) Finland The Regulation is in force in the entire territory of Finland. As is the case with EU law in 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.

72

10) France The Regulation is in force in the European mainland territory of France. But though France is partly 73 responsible for the external relations of Monaco neither EU law as such nor the Regulation applies in Monaco which in this respect is independent.225 Also Andorra226 – whose formal head of state are still jointly the president of the French Republic and 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 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.227

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11) Germany The application of the Regulation extends to the whole territory of Germany including the territory of the former German Democratic Republic (GDR). The federal structure of Germany with 16 Bundesländer does not affect the applicability of the Regulation.

75

12) Greece The Regulation is in force in the entire territory of Greece including its islands.

76

13) Hungary The Regulation is in force in the entire territory of Hungary.

77

14) Ireland Like Denmark and the United Kingdom also Ireland reserved its right not to participate in the adop- 78 tion of measures enacted under Arts. 67 et seq. TFEU (ex Arts. 61 et seq. EC Treaty).228 Yet unlike Denmark, Ireland has declared that it joins the judicial cooperation set forth by the Regulation.229 Therefore the Regulation (and the other instruments enacted under Arts. 67 et seq. and Art. 81 TFEU, ex Arts. 61; 65 EC Treaty) is in force in the entire territory of Ireland.

225 See also Cass. RCDIP 1999, 759 with note Ancel. 226 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. 227 See Kropholler/von Hein, Einl. note 25; Layton/Mercer, para. 11.066 (both with respect to the Brussels I Regulation). 228 See Protocol on the Position of the United Kingdom and Ireland to the Treaty on the European Union and the EC Treaty. 229 See also Recital (30) Brussels IIbis Regulation.

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Intro Brussels IIter Introduction 15) Italy 79

The Regulation is in force in the entire territory of 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.230 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.231 16) Latvia

80

The Regulation is in force in the entire territory of Latvia. 17) Lithuania

81

The Regulation is in force in the entire territory of Lithuania. 18) Luxembourg

82

The Regulation is in force in the entire territory of Luxembourg. 19) Malta

83

The Regulation is in force in the entire territory of Malta. Art. 99(3)(c) Brussels IIter Regulation recognises for Malta like for Italy, Portugal and Spain the respective Treaty with the Holy See.232 20) The Netherlands

84

The Regulation extends to the European mainland 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.233 21) Poland

85

The Regulation is in force in the entire territory of Poland. 22) Portugal

86

The Regulation is in force for mainland Portugal and, due to the express provision of Art. 299 (2) EC Treaty, also on the Azores and Madeira. The proviso in Art. 355 (1) TFEU (ex Art. 299 (2) EC Treaty) that specific measures may be applied to the Azores and Madeira does not affect the applicability of the Regulation there.234 Like for Italy, Malta and Spain Art. 99(1) Brussels IIter Regulation recognises the specific regulation provided for under the Concordat of 7 May 1940 between the Holy See and Portugal.235 23) Romania

87

The Regulation is in force in the entire territory of Romania.

230 See Kropholler/von Hein, Einl. note 22; Layton/Mercer, para. 11.067 (both with respect to the Brussels I Regulation). 231 For a detailed discussion, see infra the comment to Art. 99 (Mankowski). 232 See further the comment to Art. 99 (Mankowski). 233 Also Kropholler/von Hein, Einl. note 26; Layton/Mercer, para. 11.068 (with respect to the Brussels I Regulation). 234 See also Kropholler/von Hein, Einl. note 27; Layton/Mercer, para. 11.069 (both with respect to the Brussels I Regulation). 235 See further the comment to Art. 63 (Mankowski).

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24) Slovakia The Regulation is in force in the entire territory of Slovakia.

88

25) Slovenia The Regulation is in force in the entire territory of Slovenia.

89

26) Spain The Regulation is applicable in Spain, in Gibraltar (however, Gibraltar being under British rule)236 90 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.237 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, respected by Art. 99 (3) (b) Brussels IIter Regulation.238 27) Sweden The Regulation is in force in the entire territory of Sweden including the islands Gotland and Öland.

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28) United Kingdom Initially, the United Kingdom also reserved its right not to participate in the adoption of measures 92 enacted under Arts. 67 et seq. TFEU (ex Arts. 61 et seq. EC Treaty) – like Denmark and Ireland did.239 But in contrast to Denmark the United Kingdom as well as Ireland240 declared to join the judicial cooperation set forth by the Regulation.241 Therefore the Brussels IIbis Regulation (and the other instruments enacted under Arts. 67 et seq. and Art. 81 TFEU, ex Arts. 61; 65 EC Treaty) was in force in most parts of the United Kingdom, in particular in England and Wales, Northern Ireland and Scotland.242 It was also in force in Gibraltar243 but, due to Art. 355 (5) (c) TFEU (Art. 299 (6) (c) EC Treaty), not on the Channel Islands (Jersey, Guernsey, Alderney, Sark) and not on the Isle of Man though these islands are British dependencies.244 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.245 In contrast to France the Brussels IIbis Regulation did also not extend to territories outside Europe 93 for whose international relations the United Kingdom is still responsible. After Brexit became finally effective on 1 January 2021,246 the United Kingdom is no Member State of the Brussels IIbis Regulation anymore nor of the Brussels IIter Regulation. Art. 3 (1) (b) Brus-

236 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. 237 Calvo Caravaca/Carrascosa González, p. 67; Kropholler/von Hein, Einl. note 28. 238 On policy differences between the said Member States and their respective Concordats with the Holy See Borrás in Liber amicorum Christian Kohler (2018), p. 23, 27. 239 See Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and the EC Treaty. 240 See supra Introduction note 53. 241 See also Recital (30). 242 Kropholler/von Hein, Einl. note 29; Layton/Mercer, para. 11.070. 243 See supra Introduction note 65. 244 Kropholler/von Hein, Einl. note 29; Layton/Mercer, para. 11.070. 245 Kropholler/von Hein, Einl. note 29; Layton/Mercer, para. 11.070. 246 Actually, Brexit as the end of the UK’s membership in the EU took effect as of 1 February 2020, but a period of transition until the end of 31 December 2020 was appended that in fact prolonged the membership until this date; see to the present relationship between the EU and the UK in respect of Private International Law most recently Dickinson, IPRax 2021, 213 et seq.

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Intro Brussels IIter Introduction sels IIbis Regulation has lost its main case thus.247 Art. 3 Brussels IIter Regulation omits this former provision. Judgments rendered by UK courts in proceedings instituted after 31 December 2020 do not enjoy the benefit of automatic recognition in the other Member States anymore.248 This might severely affect and diminish international divorce business in London.249 95

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 revitalised250 and save the day in the post Brexit-era. 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. Whether EU-prone treaties like the Rome Convention, or rather the Contracts (Applicable Law) Act 1990, can and should be revitalised in the UK’s PIL of contracts, courtesy of Art. 24 Rome I Regulation,251 and that the Brussels Convention is to govern again the free movement of judgments in civil and commercial matters between the UK and the EU, is disputed,252 but has to be denied.253

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A core question needs to be answered in the affirmative, though:254 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 Separations255, but depending on whether the Member State of the EU concretely concerned has also ratified it like the United Kingdom did.256 Parental responsibility would be outside the scope of that Convention anyway.

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Concerning intertemporal Brexit questions, the provisions of the IIbis and IIter Regulations apply in the EU Member States without any limitation. With respect to the UK, the EU-UK Withdrawal Agreement257 provides that the Brussels IIbis Regulation still applies in the UK in the following way: its jurisdiction provisions are applicable to “legal proceedings instituted before the end of the transition period” (this end was 31 December 2020, 24.00 h European Mean Time).258 Its provisions on the recognition and enforcement of judgments apply to “judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.”259 Also, the cooperation between the competent authorities in the sense of Chapter IV of the Brussels IIbis Regulation ended with the end of the transition period.260 Since 1 January 2021 the UK is a third state and must be treated as such.261 Proceedings instituted in the UK since then do no longer entail the application of the provisions of the Brussels IIbis or the Brussels IIter Regulation.

247 248 249 250 251 252 253

256 257 258 259 260 261

Rieck, NZFam 2016, 878 (878). See infra note 96; Dickinson, IPRax 2021, 213 (219 et seq.); Rieck, NZFam 2016, 878 (878). Basedow, ZEuP 2016, 567, 572; Hess, IPRax 2016, 409, 416. 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 Dickinson, IPRax 2021, 213 (214 et seq.); see also the Blog of 12 February 2021 at EAPIL by M. Lehmann, Brexit and the Brussels Convention: Its All Over Now, Baby Blue? and the many reactions thereto. 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. OJ of 12 November 2019 C 384/1. Art. 67 (1) (c) EU-UK Withdrawal Agreement. Art. 67 (2) (b) EU-UK Withdrawal Agreement. Art. 67 (3) (a) EU-UK Withdrawal Agreement. Also Dickinson, IPRax 2021, 213 (219).

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3. Substantive scope of the Brussels IIter Regulation a) Matrimonial matters aa) Generalities The objective of the Brussels IIter Regulation is to establish jurisdictional rules to regulate the conduct of proceedings for judicial separation, divorce or nullity within the EU.262 Consequential issues concerning children are included, but consequential or ancillary financial issues are not.263 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 obligations264 or any other ancillary measures.265

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Furthermore, the Regulation is limited to civil matters by virtue of Art. 1 (1). Yet this has to be read 99 and interpreted in the light of Art. 1 (2).266 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).267 bb) Not: maintenance In the years before 18 June 2011, jurisdiction regarding maintenance had to be ascertained by virtue 100 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. From 18 June 2011 maintenance is subject to an own Regulation268 providing for own rules on jurisdiction, recognition and enforcement plus (by its Art. 15 referring to the Hague Maintenance Protocol269) applicable law. The rules on jurisdiction remain basically unaltered compared to the Brussels I regime but for replacing the debtor’s domicile with the debtor’s habitual residence.270 In any event, maintenance does not fall in the material scope of application of the Brussels IIter regime.271

262 Re G (children) (foreign contact order: enforcement) [2004] 1 FLR 378, 390 = [2004] 1 FCR 266, 278 (C.A., per Thorpe L.J.). 263 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.). 264 OLG Nürnberg, FamRZ 2005, 1691, 1692. 265 Re A (foreign contact order: jurisdiction) [2004] 1 FLR 641, 648 (F.D., Sumner J.). 266 Hof Gent R. W. 2005–2006, 432 et seq. 267 Hof Gent R. W. 2005–2006, 432 et seq. 268 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; 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. 269 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). 270 Art. 3(a) Draft Proposal, COM (2005) 649 final; G. Smith, (2006) Fam. L. 466, 467; G. Smith, June (2006) IFL 72 et seq. 271 OLG Nürnberg, FamRZ 2005, 1691, 1692.

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Intro Brussels IIter Introduction cc) Not: property consequences 101

Property consequences of the dissolution of a marriage still were a domain reserved for national law.272 They were a lacuna in the overall EU system for they did not fall under Brussels IIbis (nor do they fall under Brussels IIter) and are expressly excluded from Brussels Ibis by virtue of its Art. 1 (2) (a).273 Only rarely and occasionally they came, rather by the accident of a letting agreement between the former spouses, under Art. 24 (1) Brussels Ibis Regulation.274 To be properly included in an overall EU regime, property consequences as such had to await the becoming effective of the Property Consequences Regulations on 29 January 2019.275 dd) Not: celebration and formation of marriage

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The Brussels IIter 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

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Marriage does not feature amongst the terms expressly defined by Art. 2. Yet it goes without saying that marriage is an absolutely fundamental term for the entire Brussels IIter Regulation. It raises difficult and delicate issues of characterisation276 in particular generated by two phenomena of modern times: the same-sex marriage as first introduced amongst Member States by Dutch law,277 Belgian law,278 or Spanish law,279 and today a common phenomenon in the legal orders of at least the Western European Member States, on the one hand,280 and registered partnerships between partners of different sexes like the heterosexual variation of the PACS under French law281 on the other hand. It would have been helpful if the European legislator had provided autonomous and uniform answer on both counts.282 However, the requirement of unanimity under Art. 81 (3) TFEU disallowed that for political reasons if one was to have a proper Regulation without the necessity to resort to a Regulation promulgated only in an Enhanced Cooperation. Whether a principle of status recognition based on Art. 21 TFEU could ultimately lead to a solution,283 particularly in the wake of Coman284, remains an open question with regard to the Brussels IIter Regulation.285 272 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 Fuchs/Tölg, ZfRV 2002, 95, 98 et seq.; Fuchs, ecolex 2003, 587. 273 See only Arenas García, REDI 2004, 324, 325; de Vareilles-Sommières, RCDIP 94 (2005), 112, 116. 274 See Rb. Maastricht NIPR 2005 Nr. 62; Vlas/Ibili, WPNR 6714 (2007), 532, 543 fn. 51. 275 Supra Introduction note 15 (Magnus/Mankowski). 276 See in more detail Art. 1 notes 22 et seq.(Pintens). 277 Wet van 21 december 2000 tot wijziging van Boek I van het Burgerlijk Wetboek in verband met de 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. 278 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. 279 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. 280 See only Mankowski, IPRax 2017, 541, 546 with further references. 281 Arts. 515-1–515-7 Code Civil idF durch Loi no 99–944 du 15 novembre 1999, JO 1999, 16959. 282 To the same avail on the first count Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 18–19; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) para. 8. 283 Discussed e.g. by Fulchiron in Mélanges Bernard Audit (2014), p. 359; Fulchiron in Mélanges Bertrand Ancel (2018), p. 647; Mankowski in FS Dagmar Coester-Waltjen (2015), p. 571; Pfeiff, La portabilité du statut personnel dans l’espace européen, 2017; Wall, StAZ 2019, 225. 284 Relu Adrian Coman et al. v. Inspectoratul General pentru Imigra˘ri and Ministerul Afacerilor Interne (Case C-673/16), ECLI:EU:C:2018:385 paras. 38–51 = RCDIP 2018, 816 with note Hammje = RTD civ 2018, 858

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In any event, registered partnerships between partners of the same sex are not covered by the Brus- 104 sels IIter Regulation,286 nor are informal cohabitations and like phenomena. Perhaps, a short reminder appears useful, though, not to rely to heavily on decisions of the CJEU preceding those more recent developments and thus referring to a consensus about the core of marriage which might not exist between Member States anymore.287 b) Parental responsibility Judicial management and control of issues concerning children is generally extensive, frequently 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.288 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 changes of circumstances. 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.289

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aa) 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 Brussels II- 106 ter 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 not 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.290 bb) Parental responsibility The term “parental responsibility” is defined in Art. 1 ((2) and comprises not only the responsibilities natural parents have in respect of their children but also the responsibilities of representatives or institutions caring for the child. For a detailed discussion see Art. 1 (Pintens).

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4. Temporal scope of application The Brussels IIter Regulation applies to all proceedings instituted, documents drawn up and judgments given on or after the day it became effective and applicable, namely on 1 August 2022 (Art. 105 (2) in combination with Art. 100). The Regulation as such – concerning obligations of the Commission and the Member States – entered into force already on 22 July 2019 (Art. 105 (1)).

285 286 287 288 289 290

with note Usunier = RTDEur 2018, 673 with note Pataut; commented upon i.a. by Dutta, FamRZ 2018, 1067; Michl, FamRZ 2018, 1147; Jessurun d’Oliveira, NJB 2018, 2060; Fulchiron/Panet, D. 2018, 1674; CroonGestefeld, StAZ 2018, 297; Kessler, Clunet 2019, 27; Wall, StAZ 2019, 225; Ward/McLennan, (2019) 78 Cambridge L.J. 283; Tryfonidou, (2019) 44 Eur. L. Rev. 663; J. L. Werner, ZEuP 2019, 802; Kinsch, YbPIL XX (2018/19), 47. For an affirmative answer Dutta, FamRZ 2018, 1067; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in Garber/Lugani (Hrsg.), Handbuch zur Brüssel IIb-VO (2022) para. 8. 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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Intro Brussels IIter Introduction 5. Personal scope of application 109

With respect to matrimonial matters the Regulation does not prescribe specific personal requirements. However, in contrast to the Brussels I Regulation (Art. 2(1)) the nationality of the parties plays a role and can found jurisdiction (see Art. 3(1)(b) Brussels IIter Regulation). In regard of matters of parental responsibility, the qualification as child is necessary. However, the child’s nationality is irrelevant (Art. 8).291

VI. Interpretation of the Regulation 1. Independence from national concepts 110

The Brussels IIter Regulation is an Act of EU law. Therefore, an autonomous, genuinely European interpretation of its rules must be exercised and implemented.292 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 however 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 e.g. the United Kingdom had 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.293 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.294

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In particular the central concepts are EU concepts, e.g. that of parental responsibility understood in a wide sense germane to the Brussels IIter (and previously the Brussels II and IIbis) Regulation.295 Even if a term used in the Regulation is not expressly defined and neither judge nor lawyer enjoy the assistance of such definition (as for instance with regard to the paramount connecting factor of “habitual residence”296) an autonomous EU notion must prevail.297 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.298 Likewise, one and the same person cannot be habitually resident in two or more countries simultaneously.299

291 Rausch, FuR 2005, 53 (56); Rauscher in Rauscher, Art. 8 Brussels IIbis note 3. 292 See C (Case C-435/06) [2007] ECR I-10141 para. 46. 293 Unfortunately, such interpretation by reference to older national case-law, though in concreto 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.). 294 González Beilfuss, Rev. Jur. Cat. 2011, 731, 741 (criticising the poor quality of Spanish decisions on the Brussels IIbis regime). 295 C (Case C-435/06), [2007] ECR I-10141 para. 49 et seq.; see also Carrascosa González, REDI 2004, 225, 229 et seq. 296 Its application to refugess is demonstrated by Garber in Liber amicorum Edwin Gitschthaler (2020), p. 77. 297 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 Responsbility) [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) [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. 298 V v. V (Divorce Jurisdiction) [2011] 2 FLR 778, 787–789 [35]-[48] (F.D., Peter Jackson J.). 299 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.).

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2. Systematic and purposive interpretation The construction of individual Articles of the Brussels IIter Regulation cannot be effectuated in com- 112 plete isolation, but only in the context of the Regulation as a whole300 and in the light of the objectives underpinning it, the latter often to be found in the Recitals.301 A purposive reading not sticking to the letter is mandatory and the correct methodological maxim.302 Interpretation of the Brussels IIter Regulation should continue the interpretation of the Brussels IIbis Regulation wherever the two Regulations contain equivalent provisions. The CJEU has adopted this path in the transgression from the Brussels I and to the Brussels Ibis Regulation,303 and nothing in the Brussels II system is about to bar it.

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3. Comparison with the Brussels I/Ibis Regulations Another means of interpreting some provisions contained in the Brussels IIter Regulation is 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.304 The quest for uniform interpretation of EU acts calls for this method as far as possible.305 Recital (90) expressly clarifies:306

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“Continuity between the 1998 Convention 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 (‘Brussels II Convention’), Regulation (EC) No 1347/2000, Regulation (EC) No 2201/ 2003 and this Regulation should be ensured to the extent that the provisions have remained unchanged, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation, including by the Court of Justice, of the Brussels II Convention and of the Regulations (EC) No 1347/2000 and (EC) No 2201/2003.” In particularly, this relates in substance to the case law of the CJEU on the Brussels II and IIbis Regulations and to the Report Borrás.307 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” that pretends 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

300 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.). 301 Bailey-Harris, [2004] Fam. L. 103. 302 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.). 303 Saale Kareda v. Stefan Benkö (Case C-249/16), ECLI:EU:C:2017:472 para. 27; Bolagsupplysningen OÜ and Ingrid Isljan v. Svensk Handel AB (Case C-194/16), ECLI:EU:C:2017:766 para. 24; Paweł Hofsoe v. LVM Landwirtschaftlicher Versicherungsverein Münster AG (Case C-106/17), ECLI:EU:C:2018:50 para. 36; Éva Northartová v. Sámson Jószef Boldiszár (Case C-579/17), ECLI:EU:C:2018:360 para. 18; Tibor-Trans Fuvarozó és Kereskedelmi Kft v. DAF Trucks NV (Case C-451/18), ECLI:EU:C:2018:635 para. 23; Hellenic Republic v. Leo Kuhn (Case C-308/17), ECLI:EU:C:2018:911 para. 31; BUAK Bauarbeiter-Urlaubs- und Abfertigungskasse v. Gradbenisˇtvo Korana d.o.o. (Case C-579/17), ECLI:EU:C:2019:162 para. 45; Norbert Reitbauer et al. v. Enrico Casamassima (Case C-722/17), ECLI:EU:C:2019:577 para. 36. 304 See 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. To the same avail 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.). 305 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. 306 A. Schulz, FamRZ 2020, 1141, 1150. 307 A. Schulz, FamRZ 2020, 1141, 1150 fn. 97.

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Intro Brussels IIter Introduction 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 entertainment journeys where Brussels I/Ibis had already paved the ways. On the other hand, Brussels I/Ibis operates in matters of property, and Brussels IIbis/ter employs partially different and idiosyncratic precepts, in particular the best interests of the child in matters of parental responsibility.308 Insofar already Brussels IIbis had its specific and germane particularities.309 The Brussels IIter Regulation, particularly Arts. 21; 26; 39 (2); 68 (3), advances an important step in that direction, massively strengthening the child’s position by granting the child an individual right to a hearing or to express his personal view.310 The child’s best interests are a possibly paramount concern and might demand flexibility from jurisdiction and enforcement rules.311 That the child is added to the list of persons entitled for suspension, refusal or termination of enforcement is an even legislative expression of this.312 4. Systematic interpretation within the entire system of EU law 116

The Brussels IIter 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 law313 dealing with either “habitual residence” as such or similar notions like “permanent domicile” or alike.314 However, one must be 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 IIter regime.315 What is fitting for tax law or the law of social security must not be equally fitting for international family law. 5. Travaux préparatoires

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As with any EU regulations the travaux préparatoires are rather scarce. There are the official reasonings of the respective Proposals by the Commission.316 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 and IIter Regulations: 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.317 But it should 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

308 A-G Jääskinen, Opinion of 4 October 2010 in Case C-296/10, ECLI:EU:C:2010:578 para. 95. 309 Motte, J. dr. eur. 2016, 311 at 311. 310 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 458; Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 44–46. 311 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 141–142. 312 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 149. 313 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 II4599. 314 Report Borrás, para. 32. 315 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. 316 See notes 116 et seq. 317 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.).

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alterations brought about by the Brussels IIbis Regulation and even less by the Brussels IIter Regulation. 6. Not: Practice Guide For practical purposes and in particular for practitioners’ purposes, the Practice Guide318 drawn up 118 by the General Directorate Justice and Home of the EU Commission, might provide most helpful guidance.319 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 or IIter Regulation authoritatively, such competence being vested in the CJEU exclusively. The Practice Guide is – quite unlike the Regulation itself 320 – 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 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.321

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VII. The reference procedure 1. In general Without a central and finally competent court a uniform understanding and application of a legal in- 120 strument in different jurisdictions can hardly be achieved, let alone upheld over a longer period of time. The uniform interpretation and application of the Regulation is safeguarded by the Court of Justice of the European Union. 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 1968322 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 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.323 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 was based. Art. 68 EC Treaty restricted considerably the ambit of Art. 234 EC Treaty.324 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 and IIter Regulations.

318 http://europa.eu.int/justice_home/ejn/parental_resp/parental_resp_ec_vdm._en.pdf. 319 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. 320 See only Rb. Maastricht, sector kanton, locatie Heerlen NIPR 2006 Nr. 18 p. 35. 321 AD v. CD and AD [2008] 1 FLR 1003, 1010 (C.A., ct. judgm. delivered by Thorpe L.J.). 322 Protocol on the Interpretation of the Brussels Convention by the European Court of Justice of 3 June 1971. 323 CILFIT v. Ministero della Sanità (Case 283/81), (1982] ECR 3415. 324 As to the details see infra Introduction note 93.

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Intro Brussels IIter Introduction 2. Requirements of the reference procedure under Art. 267 TFEU a) No interpretation of national law 122

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.325 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.326 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.327 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).328 Too, 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.329 b) Pending procedure

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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 noncontentious – and also the nature of the court or tribunal is irrelevant.330 Even in proceedings on preliminary measures, including protective measures, a referral is 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.

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The court or tribunal which refers the issue to the CJEU must, however, have acted in the 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.331

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Arbitral tribunals courts do not belong to the courts meant by Art. 267 TFEU (ex Art. 234 EC 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 I and Ibis Regulations. Arbitral tribunals are therefore not entitled to referrals to the CJEU.332 Yet this traditional view has been challenged in more recent times,333 the more an overarching system of dispute resolution, comprising both litigation and arbitration, evolves. Where according to the lex fori processus litigation involves mandatory pre-proceedings before conciliatory instances, those latter instances might be regarded as integrated parts of the court system even where they were not institutional courts if seen in isolation. 325 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-1; see further Kropholler/von Hein, Einl. note 32; Staudinger in Rauscher, Einl. Brüssel Ia-VO note 47. 326 See Kleinwort Benson Ltd. v. Glasgow City Council (Case C-346/93), [1995] ECR I-615. 327 See also Kropholler/von Hein, Einl. note 32. 328 See Dieter Krombach v. André Bamberski (Case C-7/98), [2000] ECR I-1935 para. 23; Régie nationale des usines Renault SA v. Maxicar SpA and Orazio Formento (Case C-38/98), [2000] ECR I-2973 para. 28. 329 An example is Industrie Tessili Italiana Como v. Dunlop AG (Case 12/76), [1976] ECR 1473 concerning the question whether the place of performance is to be determined autonomously or by reference to the applicable national law calling upon the latter to decide that question in the latter sense. 330 See Art. 1 (1) pr. 331 HSB-Wohnbau GmbH (Case C-86/00), [2001] ECR I-5353. 332 “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. 333 Basedow, J. Int. Arb. 32 (2015), 367, 382–386; Basedow, (2019) 8:2 Eur. Int. Arb. Rev. 45; Mankowski, RIW 2018, 1, 8; cf. also A-G Szpunar, Opinion of 8 April 2014 in Case C-377/13, ECLI:EU:C:2014:246 para. 50.

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c) Court of last instance Art. 68 (1) EC Treaty significantly restricted the number of courts which could make a reference to 126 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 and solely 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.334 The TFEU remedied this shortcoming by completely deleting Art. 68 EC Treaty, leaving not the slightest residual remainder of that misconceived rule. Under Art. 267 (3) TFEU, the court or tribunal which is obliged to refer the issue to the CJEU must be a court against 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.335 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.

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In any case the highest national courts in civil matters are obliged to refer to the CJEU.336 It does not 128 matter that their decisions may be subject to attack by an eventual remedy to the constitutional court of the country.337 But even institutionally lower courts must make a reference insofar as 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. Accordingly, in the extreme where the first instance is at the same time the last instance, this court of first, last, and sole instance is obliged to a reference to the CJEU.338 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.339 Where the court on the contrary either permits the remedy or where its refusal can be attacked by a separate remedy then the court is not a court of last instance and is not entitled to make a reference.340

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d) Relevance for the original dispute A reference for a preliminary ruling of the CJEU is inadmissible where the interpretation issue has no 130 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.341 The interpretation is-

334 For further critique see Basedow, ZEuP 2001, 437; Kropholler in 75 Jahre Max-Planck-Institut für Privatrecht (2001), p. 587; Layton/Mercer, para. 11.030. 335 See Brechmann in Callies/Ruffert, EUV/EGV (2nd ed. 2002) Art. 68 EGV note 2; Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 162; Kropholler/von Hein, Einl. note 34; Staudinger in Rauscher, Einl. Brüssel I-VO note 45; probably also Layton/Mercer, para. 11.029. 336 For instance, in France the Cour de Cassation, in Germany the Bundesgerichtshof, in Spain the Tribunal Supremo, in Italy the Corte di Cassazione, in the Netherlandas the Hoge Raad, in Ireland the Supreme Court. 337 See Staudinger in Rauscher, Einl. Brüssel I-VO note 45 and fn. 174. 338 Danmarks Rederiforening v. LO Landsorganisationen i Sverige (Case C-18/02), [2004] ECR I-1417 para. 17. 339 See Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 162 with further references. 340 See also Kenny Roland Lyckeskog (Case C-99/00), [2002] ECR I-4839 para. 16; Staudinger in Rauscher, Einl. Brüssel I-VO note 58. 341 Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207.

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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).344 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.345 e) Obligation to refer

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Where the mentioned requirements are met the court is not only entitled but also obliged to refer the interpretation issue to the CJEU.346 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 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).347

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Only in exceptional circumstances is the national court of last instance not obliged to refer an interpretation issue. Following the so called CILFIT doctrine (named after the leading case), one such situation is where the CJEU has already decided that issue in settled judicature348 so that the matter is an acte éclairé. The CJEU is the guiding authority for binding interpretation of EU law, and thus a firm and constant interpretation by the CJEU is as good as a codified rule.349 The requirement of settled judicature might have been lowered in recent times and an existing interpretation of a rule of EU law might suffice, even if has been developed only in a single judgment.350 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.

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Under the CILFIT doctrine, there is also no obligation to refer and, as mentioned above, a reference becomes not mandatory if the interpretation issue is clear beyond reasonable doubt, i.e. an acte clair.351 Nonetheless, 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.

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In order to support the CJEU’s function to unify the interpretation of the Regulation national courts should rather refer than avoid referrals. At the national level, constitutional courts might act as watchdogs whether the ordinary courts unjustifiedly employed the CILFIT doctrine as an escape device and defied existing obligations to refer, if the respective national constitutional law caters for due 342 In this sense at least BGH, IPRax 2003, 346, 349; also Kropholler/von Hein, Einl. note 35; but doubting Staudinger in Rauscher, Einl. Brüssel Ia-VO note 50. 343 Kropholler/von Hein, Einl. note 35. 344 Srl CILFIT and Lanificio di Gavardo SpA v. Ministero della Sanità (Case 283/81), [1982] ECR 3415 para. 14. 345 See Srl CILFIT and Lanificio di Gavardo SpA v. Ministero della Sanità (Case 283/81), [1982] ECR 3415 para. 14. 346 Also Kropholler/von Hein, Einl. note 36; Layton/Mercer, para. 11.029; Staudinger in Rauscher, Einl. Brüssel Ia-VO note 43 with further references. 347 See Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 164; Kropholler/von Hein, Einl. note 36. 348 Da Costa en Schaake NV v. Netherlands Inland Revenue Administration (Joined Cases 28–30/62), [1963] ECR 63 et seq.; Srl CILFIT and Lanificio di Gavardo SpA v. Ministero della Sanità (Case 283/81), [1982] ECR 3415 para. 14; Antoine Boxus, Willy Roua, Guido Durlet, Paul and Henriette Fastrez, Philippe Daras, ARACh, Bernard Page, Léon L’Hoir u. Nadine Dartois v. Région wallonne (Joined Cases C-128/09 to C-131/09, C-134/ 09 and C-135/09), [2011] ECR I-9711 para. 31; Agenzia Italiana del Farmaco (AIFA) and Ministero della Salute/Doc Generici Srl (Case C-452/14), ECLI:EU:C2015:644 para. 43. 349 OGH EF-Z 2021, 284, 285. 350 Commission v. French Republic (Case C-416/17), ECLI:EU:C:2018:811 para. 110 with further references, i.a. to Srl CILFIT and Lanificio di Gavardo SpA v. Ministero di Sanità (Case 283/81), [1982] ECR 3415 para. 21; João Felipe Ferreira da Silva e Brito u.a./Estado português (Case C-160/14), ECLI:EU:C:2015:565 paras. 38–39; Association France Nature Environnement v. Premier ministre and Ministre de l’Écologie, du Développement durable et de l’Énergie (Case C-379/15), ECLI:EU:C:2016:603 para. 50. 351 Srl CILFIT and Lanificio di Gavardo SpA v. Ministero della Sanità (Case 283/81), [1982] ECR 3415 para. 14.

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process, particularly to have the legally competent court hear the case.352 However, the confines within which the national watchdog courts is operating, are primarily defined by the national law as a matter of procedural autonomy, yet influenced by the EU law principles of efficiency and equivalence.353 Through the CILFIT formula, the decisions of the CJEU are given a true precedential effect, which 136 expresses a conscious decision for a genuine division of tasks between the CJEU and the courts of the Member States.354 In this judicial network, the courts of the Member States have an independent role. Once a question of law has been decided by the CJEU, national courts can decide cases based on that question of law without referring them to the CJEU.355 The division of tasks between the CJEU (clarification of abstract general legal principles) and the national courts (application of these legal principles to the concrete individual case) expressed in this formula also corresponds to the understanding in most Member States’ case law.356 For instance, already in 1996, the German Federal Labour Court (Bundesarbeitsgericht, BAG) clearly summarised the necessary differentiation between interpretation by the CJEU and application of the abstract legal principles formulated by the CJEU by the national court: “[The CJEU] rather specifies, in the form of abstract legal propositions, the content of the provision of Community law about which it has been asked. The subsumption of the concrete facts under these legal principles is then a matter for the national court […]. If the obligation to refer under Art. 177 III of the EC Treaty (now Art. 267 (3) TFEU) were also extended to all ambiguities and residual doubts that remain despite the CJEU’s answers in the reference for a preliminary ruling, this would often – and also here – amount to transferring to it the decision of the individual case.”357

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f) Formal requirements In its referral the court must formulate concrete questions which the CJEU is asked to 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 established358 – and it must explain why the interpretation issue is relevant for its decision.359 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.360 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.”

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3. The effects of decisions of the CJEU The preliminary ruling of the CJEU decides the interpretation issue with binding effect for 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.361 Even the referring court can refer the

352 E.g. in Germany BVerfG, NJW 2010, 3422 para. 88; BVerfG, NJW 2011, 3428 para. 98; BVerfG, NJW 2018, 606; BVerfG, NJW 2018, 686; BVerfG, NJW 2021, 271; BVerfG, NJW 2021, 1005. 353 Kainer/Persch, GPR 2021, 156, 159–160. 354 See only Haltern, Europarecht, Bd. II (3rd ed. 2017) paras. 298 et seq. 355 Haltern, Europarecht, Bd. II (3rd ed. 2017) para. 303. 356 E.g. BGH, NJW 2016, 564 [63]; BGH 26.3.2019 – XI ZR 228/17 [15]; BGHZ 212, 318 [24]; BGH, NJW-RR 2020, 130 [11]; BGH 6.2.2020 – I ZR 93/18 [20]-[22]. 357 BAGE 82, 211 [para. B.II.3]. 358 Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207, paras. 35 et seq.; see also Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 167. 359 Gantner Electronic GmbH v. Baasch Exploitatie Maatschappij BV (Case C-111/01), [2003] ECR I-4207. 360 See OJ 2008 L 24/39. 361 Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 174; Kropholler/von Hein, Einl. note 38; Schmidt-Parzefall, Die Auslegung des Parallelübereinkommens von Lugano (1995), pp. 35 et seq.; 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.

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Intro Brussels IIter Introduction same issue in another dispute again to the CJEU.362 Nonetheless, 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 140

As a kind of compensation measure for the restricted access of national courts to the CJEU, Art. 68 (3) 1st sentence 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 is a procedure by which abstract and hypothetical questions can be posed. A connection with a concrete dispute was not required. The TFEU abolished this special procedure.

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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.363

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As far as discernible, 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. The TFEU did not retain it, either. 5. Fast track references

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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.364 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.”365 However, the CJEU can also on its own motion order that the reference be dealt with under the urgent procedure.366 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

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The short-lived Brussels II Regulation did not generate many references for preliminary rulings to the CJEU. The only identifiable one was originally made by the OLG München367 but apparently not in fact submitted (or literally transmitted) to the then ECJ and finally deleted from the register.368 It concerned the question as to whether Art. 2 (1) (a) 6th lemma Brussels II Regulation was reconcilable with Art. 12 EC Treaty.369 Deplorably, the CJEU was deprived of the opportunity to answer this fundamen362 See Da Costa en Schaake NV v. Netherlands Inland Revenue Administration (Joined Cases 28–30/62), [1963] ECR 63. 363 Geimer in Geimer/Schütze, EuZVR Einl. A.1 note 179; Kohler in FS Reinhold Geimer (2002), p. 461, 469; Kropholler/von Hein, Einl. note 31; Staudinger in Rauscher, Einl. Brüssel I-VO note 63. 364 See Inga Rinau (Case C-195/08), [2008] ECR I-5271 paras. 43 et seq. 365 Art. 104b (1) Rules of Procedure of the CJEU. 366 Art. 104b (1) Rules of Procedure of the CJEU. 367 OLG München, FamRZ 2003, 546. 368 OLG München, FamRZ 2003, 546; see IPRspr. 2002 Nr. 163 p. 429 fn. 1; U. P. Gruber, IPRax 2005, 293, 295; Hau, GPR 2005, 143, 145. 369 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.

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tal 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 which rule limited the respective competence to national courts of last instance.370 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 Roermond371 settle the issue in a short-reasoned judgment at first instance. Same-sex marriages might be in particular need of a forum necessitatis, and Art. 9 Matrimonial Property Regulation clearly displays the complexity of the political issues involved between Member States.372 The number of references under the Brussels IIbis Regulation on which the CJEU has decided, is 145 mounting and ever mounting. The geographical spread from the very start evidences that the Brussels IIbis Regulation is law in action, not law in the books throughout total Europe. The first ever reference originated in Finland,373 the second in Sweden,374 and the third in Lithuania.375 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 level, but Brussels IIbis is definitely “there”. A problem for memorisation is that in many cases for reasons of data protection, the names of the parties are abbreviated or translated into mere initials, effectively anonymising the case: 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 years, 146 clearly jurisdiction was the most burning issue. This changed substantially after Hadadi,376 A,377 C,378 and above all Mercredi379 had catered for most valuable clarifications and guidelines viable in practice. Now care proceedings are at the front. Most times they call for 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”. Bearing in mind the brunt which Arts. 16–19 Brussels IIbis Regulation had to take from England par- 147 ticularly in the 2000s when London was the favourite forum for divorce applications by the wives of Russian oligarchs and other wealthy people,380 it is rather astonishing that the rules on lis pendens have prompted comparatively few references.381 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 prompting quite some references was Art. 15 Brussels IIbis Regulation,382 astonishingly often employed in practice, not only in the United Kingdom and Ireland (as one might ex370 371 372 373 374 375 376 377 378 379 380 381

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Hau, GPR 2005, 143, 145 et seq.; Moylan/Baker, Nov. [2006] IFL 188, 191. Rb. Roermond NIPR 2001 Nr. 188 p. 327. In detail Sánchez Jiménez, Rev. Der. Com. Eur. 63 (2019), 407. Korkein Hallonto-oikeus 13 October 2006. Högsta domstolen 7 February 2007. Lietuvos Auksˇcˇiausiasis 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. See Introduction 17–20 notes 11–16 (Mankowski). P v. M (Case C-507/14), ECLI:EU:C:2015:512, A v. B (Case C-489/14), ECLI:EU:C:2015:654 and Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24, 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). Child and Family Agency v. JD (Case C-428/15), ECLI:EU:C:2016:819; IQ v. JP (Case C-478/17), ECLI:EU:C: 2018:812; EP v. FO (Case C-530/18), ECLI:EU:C:2019:583.

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Intro Brussels IIter Introduction pect), but also e.g. in Germany,383 Austria384 and Romania. Art. 20 Brussels IIbis Regulation, albeit also a regular in practice, has not generated references for, first, it is germane to mere provisional proceedings and, second, much can be gained by way of interpretation from previous case law on Arts. 24 Brussels Convention; 31 Brussels I Regulation; 35 Brussels Ibis Regulation. 149

A side note is due to the oddity and peculiarity that the European Court of First Instance had to deal with a case involving the Brussels II regime.385 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 150

In order to become applicable, the jurisdictional regime of the Brussels IIter 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 IIter 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 IIter regime cannot provide for.386

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In general, the jurisdictional regime of the Brussels IIter Regulation – as of the Brussels IIbis Regulation – is deemed to be conclusive387 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 IIter Regulation itself. 2. Relations to non-Member States

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Like the jurisdictional regime of the Brussels I Regulation the jurisdictional regime of the Brussels IIter 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 State388 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 regime and can count on firm support by the CJEU there. The respective case law, namely the decisions in Group Josí389 and Owusu390, generally can be transferred into the realm of the Brussels IIter Regulation.391

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Additionally, Recitals (8) and (12) Brussels II Regulation were and still are strong indications although they have not been verbally retained in the Recitals of the Brussels IIbis and, the less, of the Brussels IIter Regulations.392 Recital (8) Brussels II Regulation expressly mentions that citizens and nationals of non-Member States are subjected under 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 exis383 384 385 386 387 388

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See, e.g., KG, NJW 2006, 3503; OLG Stuttgart, NJOZ 2015, 2644; OLG Karlsruhe, NJOZ 2021, 264. OGH, ÖJZ 2019, 506 = FamRZ 2019, 1010 with note Mankowski. 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. 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.

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tence if it can be established that jurisdiction under any head of jurisdiction of the Brussels IIter Regulation exists in the concrete case.393 The Brussels IIter 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. 2 Brussels I Regulation (today Art. 4 Brussels Ibis Regulation) which takes a firmly different stance; the lack of any corollary to Art. 2 Brussels I Regulation (today Art. 4 Brussels Ibis Regulation) in the Brussels IIbis and IIter Regulations confirms the different approaches.394 After the CJEU has affirmed this view in Sundelind Lopez395 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.396 It also erases any necessity to look as to whether internationality requires links with another Member State.397 3. General concepts underlying heads of jurisdiction In family affairs, private persons, not enterprises are the acting personnel. This might prompt a ten- 154 dency that in order to make justice effective jurisdiction should favour and encourage application by providing fora close to the prospective applicant.398 Save for the classification called for under Art. 3 (1) (a) 6th lemma, the jurisdictional rules of the Brussels IIter 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.399 Thus any contention that the Brussels IIter Regulation is only applicable as between the Member States,400 needs a slight rectification.

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Yet unlike the basic features of the Brussels I or Ibis Regulations, there is not a single principal jurisdictional basis, the other being mostly subsidiary.401 It cannot be forcefully maintained that particularly the respondent’s domicile serves as the utmost and predominant cornerstone.402 The structure of the jurisdictional regime of the Brussels IIter Regulation is fundamentally different from that one to be found in the Brussels I or Ibis Regulations. Where the latters combine general jurisdiction and special fora the former opts for a choice of equivalent fora plus a subsidiary reference to national law.403 The reason for this is to ease access to the courts and to promulgate a favor divortii.404

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One of the primary objectives of the Brussels IIter regime is to simplify jurisdictional rules and to eliminate expensive and superfluous litigation.405 The couple that first litigates where to litigate might be said to be cursed.406 Justices call out for anyone to prevent or at least ameliorate of these huge and

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393 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. 394 Pataut in Malatesta/Bariatti/Pocar, p. 123, 126–130. 395 Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), [2007] ECR I-10403 para. 26. 396 Pataut in Malatesta/Bariatti/Pocar, p. 123, 129. 397 Pataut in Malatesta/Bariatti/Pocar, p. 123, 129 et seq. 398 Dethloff, AcP 204 (2004), 544, 561. 399 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. 400 Hof Leeuwarden NIPR 2002 Nr. 240 p. 407. 401 P. E. Herzog in Essays in Honor of Arthur T. von Mehren (Ardsley, NY 2002), p. 83, 99. 402 P. E. Herzog in Essays in Honor of Arthur T. von Mehren (2002), p. 83, 99 et seq. 403 Bonomi in FS Roland Bieber (2007), p. 771, 774. 404 Bonomi in FS Roland Bieber (2007), p. 771, 774 et seq. 405 See the Explanatory Memorandum to the Brussels IIbis Recast Proposal (COM (2016) 411 final) p. 8; also Recitals (2) and (3) of Brussels IIter Regulation point in this direction; on the Brussels IIbis Regulation see Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.). 406 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.).

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Intro Brussels IIter Introduction expensive cases.407 Yet in reality that curse might be restricted to the rich for only they can afford such folly.408 158

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 IIter Regulation to its predecessor.409 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 allegations of discrimination violating against Art. 18 TFEU (ex Art. 12 EC Treaty).410 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 Proposal411 reflected and indicated some concern about this at least on the Commission’s part.412

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The introduction and the advent of the Brussels IIbis Regulation had particular impact in relation to proceedings with respect to parental responsibility, as the jurisdictional link with matrimonial proceedings is severed.413 The Brussels IIter Regulation continues this path. Clear jurisdictional rules apply even as to children who are not present or habitually resident within the forum state.414

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Generally, the jurisdictional rules of the Brussels IIter regime are strict rules not granting any degree of discretion to the judge. The rules are inflexible, mandatory and not allowing for a voluntary stay even if the court seised deems another forum clearly more appropriate.415 Just like the Brussels I 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.416 This ends the substantial costs of discretionary forum litigation.417 Yet – and this was a material change compared to the Brussels II Regulation and a genuine novelty in European family law418 – for limited purposes Art. 15 Brussels IIbis Regulation419 introduced a modified version of this doctrine420 as an off-spring of Arts. 5; 8; 9 Hague Children Protection Convention 1996.421 In its Arts. 12 and 13 the Brussels IIter Regulation upholds the preceding provision in a somewhat modified form.

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Being still under the control of a substantial aspect, namely the child’s paramount interest, and to be handled with severe caution,422 Art. 15 Brussels IIbis Regulation and in its wake Arts. 12; 13 Brussels IIter Regulation may be explained away as some new kind of cross-border judicial co-operation rather than a proper doctrine of forum non conveniens, though.423 Whether it can be truly called revolu407 408 409 410 411 412 413 414 415 416 417 418 419 420

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Re C (a child) [2021] EWFC 32 [96] (F.C., Munby J.). Wermuth v. Wermuth (No. 2) [2003] 1 FLR 1029, 1038 (C.A., per Thorpe L.J.). Hau, GPR 2005, 143, 144. OLG München, FamRZ 2003, 546. See Explanatory Memorandum 2.3 of the Proposal (COM (2010) 105 final). Hau, GPR 2005, 143, 144. Bailey-Harris, [2004] Fam. L. 103, 104; Coester-Waltjen in FS Andreas Heldrich (2005), p. 549, 560. See still under the Brussels IIbis Regulation: 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; 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 published judicial apprehensions and applications of Art. 15 Brussels IIbis Regulation 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; Burgstaller/Neumayr in FS Peter Schlosser (2005), p. 119, 120; de Cristofaro, Riv. dir. proc. 2006, 1381, 1391 et seq.; Pirrung, IPRax 2017, 562; Heiderhoff, IPRax 2020, 521 at 521 and most extensively Ibili, Gewogen rechtsmacht in het IPR (2007), pp. 154–178. 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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tionary, whether it proves its inherent value and whether it will serve as a role model for other areas of law still remains to be seen.424 At least Art. 15 Brussel IIbis Regulation could be regarded as an innovation and a genuine novelty in its times insofar as its paragraph (6) called for a direct 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.425 Nonetheless, it operated only in rather limited if not exceptional circumstances and contains safeguards to avoid delays and interim litigation.426 An even more modest parallel could be found in Art. 12 (1) (b) Brussels IIbis Regulation.427 The recast process has at least yielded the liberalisation that Art. 12 Brussels IIter Regulation does not require assent by the designated court428 or consent by either party anymore.429 Whether of all rules Arts. 12; 13 can be said to miss out on the general tendency to strengthen the child’s best interests might become a matter of vivid discussion.430 Exorbitant rules of jurisdiction under national law are avoided by another technique than under the Brussels I regime. Under the Brussels Ibis Regulation Art. 5 and 6 do the trick whereas under the Brussels IIbis regime Arts. 6 and 7 clearly demonstrated and organised, that exorbitant rules of jurisdiction could be employed only if no connecting factor used by the Regulation 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.431 Under the Brussels IIter Regulation exorbitant rules on jurisdiction are also excluded in respect of the jurisdiction in matrimonial matters if at least one spouse has his or her habitual residence of specific length in the member State whose courts shall decide;432 on matters of parental responsibility national exorbitant jurisdiction rules are principally excluded if the child has his or her habitual residence in the relevant Member State.433

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4. Relevant point of time The relevant point of time as to which the facts establishing jurisdiction have to be ascertained, is in 163 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 seised 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.434 The situation under Brussels IIter – like that under Brussels IIbis – is the same as under Brussels Ibis.435 In fact, for issues of parental care the ‘petrification’ is enshrined in Recital (21) 2nd sentence, even with an extension by Art. 8, yet under a time limit. The justified reliance and the trust invested by the applicant gain the appropriate protection by the principle. In particular, the respondent must not be permitted to deprive the applicant of

424 425 426 427 428 429 430 431 432 433 434 435

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.). U. P. Gruber/Möller, IPRax 2020, 393, 395. A. Schulz, FamRZ 2020, 1141, 1143. Heiderhoff, IPRax 2020, 521, 527–528. Pataut in Malatesta/Bariatti/Pocar, p. 123, 130 et seq. See Art. 6 in connection with Art. 3 Brussels IIter Regulation. See Art. 14 in connection with Art. 7 Brussels IIter Regulation. 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 (8th ed. 2020), § 5 note 231; Mankowski in Rauscher, Vor Art. 4 Brüssel Ia-VO note 4; Mankowski, RIW 2004, 481, 496.

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Intro Brussels IIter Introduction the forum by going on the run and moving to another jurisdiction after the application is made.436 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 IIter Regulation. 164

On the other hand, the principle does not work in the negative. There is nothing like a 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.437 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 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.438 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

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The court must apply the jurisdictional rules of the Brussels IIter – like under the Brussels IIbis – Regulation ex officio, i. e. of its own motion.439 It does not have any major discretion, and the doctrine of forum non conveniens is ruled out but for Art. 15.440 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.441 Art. 24 Brussels I Regulation does not have a counterpart here and is not mirrored else. 6. Party autonomy

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Quite remarkable for the areas touched is the introduction of some degree of party autonomy.442 To a certain extent, at least in matters of parental responsibility the parties to the proceedings can influence the forum regardless whether this could in its own right be called a true electio fori or not.443 Art. 12 (1) (b), (3) (b) Brussels IIbis Regulation permitted to do so, following and extending the footsteps of Art. 3 (2) Brussels II Regulation.444 Art. 10 Brussels IIter Regulation now advances further, and recourse to choice of court becomes easier.445 The approach now is a unitary one for all matters of parental responsibility,446 including those ancillary to matrimonial proceedings as Recital (23) clarifies. 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.447

436 Mankowski, RIW 2004, 481, 496; Mankowski, NZI 2005, 575, 576. 437 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. 438 Mankowski in Rauscher, Vor Art. 4 Brüssel Ia-VO note 4. 439 See Art. 18 Brussels IIter Regulation; to the preceding Regulation see only Pataut, RCDIP 94 (2005), 516, 518. 440 Supra Introduction notes 5, 123. 441 Pataut, RCDIP 94 (2005), 516, 518. 442 On party autonomy under the Maintenance and Rome III Regulations Boele-Woelki, FJR 2007, 297. 443 Policy discussion by Marino, RDIPP 2015, 349. 444 See in more detail infra Art. 12 notes 31–37 (Gallant) and Pabst in Liber amicorum Thomas Rauscher, (2005), p. 115. 445 Biagioni/Carpaneto, YbPIL 22 (2020/21), 139, 145. 446 González Beilfuss, YbPIL 22 (2020/21), 95, 105. 447 Coester-Waltjen in FS Andreas Heldrich (2005), p. 549, 560.

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From the scratch the very wording is different. Comparing it to Arts. 23 (1) Brussels I Regulation/ 167 2007 Lugano Convention; 25 (1) Brussels Ibis Regulation should do fine service as an eye-opener in this regard. Art. 10 and its predecessor Art. 12 (1) (b), (3) (b) Brussels IIbis Regulation deliberately use different formulations and rely on “acceptance”. This reveals a different underlying concept than that pursued by Arts. 23 Brussels I Regulation/2007 Lugano Convention; 25 (1) Brussels Ibis Regulation.448 The construction chosen is more akin to tacit submission (Art. 24 Brussels I Regulation) than to proper jurisdiction clauses.449 This does not necessarily imply that the same yardsticks should apply to the “acceptance” as would be applicable under Arts. 24 Brussels I Regulation/2007 Lugano Convention; 26 (1) Brussels Ibis Regulation450 since the differing terminology could indicate and signalise slight divergences as to substance, though,451 the more so since nowadays express acceptance is required.452 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.453 The current Art. 10 deviates in some respects from Art. 12 Brussels IIbis Regulation.454 Yet it contains the rather experimental basic nature.455 Art. 10 somewhat eclectically uses techniques assembled from a number of other Regulations.456 In matters concerning divorce or other kinds of dissolution of marriage, Art. 6 Brussels IIbis Regula- 168 tion clearly indicated by attributing exclusivity to the grounds of jurisdiction contained in Arts. 3–5 Brussels IIbis Regulation that party autonomy going beyond that is ruled out.457 This applied both in the positive sense (the spouses could not by agreement vest jurisdiction in a court otherwise not competent but for Art. 3 (1) (a) 4th lemma Brussels IIbis Regulation) and in the negative sense (the spouses could not by agreement deprive a court of jurisdiction vested in it by the jurisdictional regime of Arts. 3–5 Brussels IIbis Regulation). Neither prorogation nor derogation were admissible in matters of divorce or dissolution of marriage but for Art. 3 (1) (a) 4th lemma Brussels IIbis Regulation.458 A tacit submission was not permissible in matrimonial matters, either.459 The Commission in its 2014 Report ventured a few steps in a direction more favourable to party autonomy.460 But eventually this was not to be, allegedly due to a lack of statistical data,461 and does not materially influence the Brussels IIter Regulation.462 Parallels to the broad introduction of party autonomy in the conflicts rules for divorce, Art. 5 Rome III Regulation, have not guided the way,463 nor did developments in 448 Rauscher in Rauscher, Art. 3 Brüssel II-VO note 17; Geimer in Geimer/Schütze, EuZVR Art. 3 EheGVO note 11; Pabst in Liber amicorum Thomas Rauscher, (2005), p. 115, 123. 449 Boele-Woelki, ZfRV 2001, 121, 124; Vogel, MDR 2000, 1045, 1048; Geimer in Geimer/Schütze, EuZVR 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. 450 Bush v. Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, 1447 et seq. (53) (C.A., per Lawrence Collins L.J.). 451 Pabst in Liber amicorum Thomas Rauscher, (2005), p. 115, 124. 452 Pabst in Liber amicorum Thomas Rauscher, (2005), p. 115, 126. Doubting Solomon, FamRZ 2004, 1409, 1413. 453 Coester-Waltjen in FS Andreas Heldrich (2005), p. 549, 560. 454 Sánchez Jiménez, REDI 2020-2, 143, 147–149; U. P. Gruber/Möller, IPRax 2020, 393, 394–395. 455 On Art. 10 in detail Campuzano Díaz, REEI 40 (dic. 2020) http://www.reei.org/index.php/revista/num40/ar ticulos/acuerdos-eleccion-foro-materia-responsabilidad-parental-analisis-art-10-reglamento-ue-20191111. 456 Biagioni, Riv. dir. int. 2019, 1169, 1170–1171; see also Lupoi, Riv. trim. dir. proc. civ. 2020, 575, 579–580. 457 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. 458 Pertegás in Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 332. 459 A-G Vlas, NIPR 2019 Nr. 4 p. 103. 460 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 p. 6. 461 A. Schulz, FamRZ 2020, 1141 at 1141 fn. 9. 462 Mailhé, JCP G 2019, 1935, 1937; Biagioni, Riv. dir. int. 2019, 1169, 1170; Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 21; Frohn/Sumner, NIPR 2020, 391, 395. 463 Mailhé, JCP G 2019, 1935, 1937.

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Intro Brussels IIter Introduction the substantive divorce laws of the Member States towards party autonomy. An opportunity to better parallelise forum and ius464 has been missed.465 The issue appears to be postponed to a future Brussels IIquater Regulation.466 169

Hence, in contrast to the approach taken by the Brussels I Regulation/2007 Lugano Convention and the Brussels Ibis Regulation the Brussels IIter Regulation does not grant the parties a wide freedom to select and to choose the competent court in matrimonial matters.467 Neither choice of court agreements nor the submission to jurisdiction are generally recognised in this field.468 Hence, any jurisdiction clause in prenuptial agreements will carry no weight.469 Unilaterally, the applicant in divorce proceedings can ascertain jurisdiction tactically opting for Art. 3 (1) (a) v or vi Brussels IIter Regulation in lieu of a consensual solution.470 Party autonomy as regards divorce proceedings might reappear on a future reform agenda with a possible compromise distinguishing between impermissible agreements ex ante and permissible agreements ex post.471 7. Lack of hierarchical order and rules on lis pendens

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The Brussels IIter Regulation like the Brussels IIbis Regulation assembles an astonishing number of heads of jurisdictions in matrimonial matters. In particular Art. 3 provides a vast array and a flourishing bunch of possible grounds of jurisdiction. These grounds have equal weight and are not in a hierarchical order.472 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. 17–20 on lis alibi pendens and on establishing or cross-checking the own jurisdiction of the court seised.473 These rules gain their weight and their importance from the great number of heads of jurisdiction available to applicants.474

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Whether de lege ferenda party autonomy could serve as some kind of tie-breaker should be a matter of thorough discussion in the future again.475 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 in itself sufficient to avoid forum shopping and a race to the courthouse if a party boldly sets the agreement aside and files proceedings with another court than the one chosen.476 Indirectly, such race to the courts affects the chances of favouring consensual solutions and, in particular, of a consensual solution on the venue of litigation and the jurisdictional issue.477

464 Weller, IPRax 2017, 222, 229–230. 465 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 21. 466 A. Schulz, FamRZ 2020, 1141 at 1141 fn. 9. 467 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 21. 468 See only Neumayr, iFamZ 2008, 362, 364. 469 Brown/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/documents/Brussels_II. pdf. 470 Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 23. 471 González Beilfuss, NIPR 2021, 701, 706–710. 472 Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. 473 Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. 474 Sana-Chaillé de Néré, D. 2005, 1459, 1461. 475 Pertegás in Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 332 et seq. 476 Pertegás in Meeusen/Pertegás/Straetmans/Swennen (eds.), International Family Law for the European Union (2007), p. 319, 333. 477 Wautelet in Wautelet (ed.), 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.

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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, wherever possible, “limping” situations, resulting from judgments being recognised in one jurisdiction, yet not being fully recognised in another.478

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Decisions dismissing applications for divorce, annulment or else dissolution of marriages are outside 173 the Regulation rules on recognition and enforcement.479 But does this e contrario amount to such decisions being totally unrecognisable and unenforceable in other Member States?480 The alternative solution appears more advisable and more feasible: Recognition and enforcement of such decisions should be left to national law.481 Otherwise negative decisions rendered by courts in non-Member States could gain more favourable treatment than judgments rendered by Member States, rather an untenable and striking result.482 The concern about recognising 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. Decisions as to costs are recognisable and in particular enforceable pursuant to the Regulation regime if and insofar the main proceedings of the conclusion of which they are part, fall inside the scope of the Regulation.483

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Decisions on parental responsibility as such (not on a right to visit or on the return of a child de- 175 tained) are not enforceable since they lack an enforceable content.484 Decisions to return a child in turn are clearly enforceable. Otherwise, they would lose their entire point. In this field the Brussels IIter Regulation recalibrates the regime and deviates in some respects from the Brussels IIbis Regulation.485 The new Regulation deliberately puts the best interest of the child centre stage.486 Human rights get their proper weight as some kind of counterweights against blind or exaggerated mutual trust. The entire issue remains a troublesome one, though, searching for rebalancing an uneasy balance487 and harmony with the 1980 Hague Child Abduction Convention488 whilst trying simultaneously to accelerate return proceedings.489 However, overall the Brussels IIter Regulation is an amelioration and a progress.490 Defying Euroscepticism, it displays the advantages of a common and uniform European regime.491 Yet even the Brussels IIter Regulation did not dare to erect an uniform European regime for the recognition and enforcement of decisions rendered in Third States; this matter is still left to the national rules of the Member States.492

478 D. v. D. (Nature of Recognition of Overseas Divorce) [2006] 2 FLR 825, 838 (F.D., Bodey J.). 479 See only Recital (15) Brussels II Regulation; Report Borrás, para. 60; Rauscher in Rauscher, Art. 2 note 10 with ample references. 480 To this extent Hausmann, EuLF 2000–01, 345, 348. 481 Helms, FamRZ 2001, 257, 258; Andrae, ERA-Forum 1/2003, 28, 33. 482 Andrae, ERA-Forum 1/2003, 28, 33. 483 See only BGH, FamRZ 2005, 1539, 1545; R. Wagner, IPRax 2001, 73, 79. 484 BGH, FamRZ 2005, 1539, 1542. 485 Thomas, Clunet 2020, 897, 919. In detail A. Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/NiethammerJürgens (Hrsg.), Standards und Abgrenzungen im internationalen Familienrecht (2019), p. 93. 486 In detail Carpaneto, RDIPP 2018, 974; Carpaneto in Bergamini/Ragni (eds.), Fundamental Rights and Best Interests of the Child in Transnational Families (2019), p. 265; Corneloup/Kruger, RCDIP 2020, 215. 487 Biagioni, Eur. Papers 1:2 (2016), 579. 488 E.g. Campuzano Díaz, Cuad. Der. Trans. 12 (1) (2020), 97. 489 See Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 51–54. 490 Lupoi, Riv. trim. dir. proc. civ. 2020, 575, 608; see also Antomo in Pfeiffer/Lobach/Rapp (Hrsg.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 56–57. 491 Lupoi, Riv. trim. dir. proc. civ. 2020, 575, 610. 492 See Borrás in Liber amicorum Christian Kohler (2018), p. 23, 28.

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X. Particular delicacy of the topics touched upon 176

Undeniably family law is a far more delicate and sensitive topic than general civil or 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.

177

They 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 not so long ago such a contention would have been an insult to Italian and Irish ears, and until 2011 it still sounded 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.493 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 uniform Rome III Regulation494 clearly emphasises and evidences the spread of opinion and tradition between Member States.

178

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 substantive laws (and even the conflicts 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,495 international procedural law was chosen to volunteer and pioneer.

179

Parental responsibility is not less delicate. In this area due respect has to be paid to Arts. 7; 47 Charter of Fundamental Rights.496 The child is at the core of the matter, and its wellbeing should be paramount and dominating consideration. This 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 180

In the wake of the controversial497 judgments in Köbler498 and Traghetti Mediterraneo499 which established state liability under EU law for judicial misapprehensions of EU rules by national courts and were followed in Ferreira da Silva e Brito500, some provoking thoughts might be tentatively ventilated: 493 See in more detail Rauscher in FS Reinhold Geimer zum 65. Geb. (2002), p. 883. 494 See Recital (6) Regulation (EC) No. 1259/2010. 495 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 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. 496 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.

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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 instance 181 whose decisions are not subject to further appeal,501 and the misapprehension of EU rules must be obvious and evident.502 Any restriction possibly imposed by national law that liability can only flow from a judgment which was reversed, cannot stand.503 The damage due would be the damage resulting from the ensuing necessity to file another application elsewhere504 (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. 20.505

Chapter I Scope and Definitions (Art. 1–Art. 2)

Article 1 Scope 1. This Regulation applies in civil matters of: (a) divorce, legal separation or marriage annulment; (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in point (b) of paragraph 1 may, in particular, include: (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 person or property of a child, or representing or assisting the child; (d) the placement of the child in institutional or foster care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the property of a child.

497 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; Krieger, JuS 2004, 855; Schulze, ZEuP 2004, 1049; Tietjen, Das System des gemeinschaftsrechtlichen Staatshaftungsrechts (2010), pp. 108–117, 177–180; Machado, RLJ 2015, 246. Most comprehensively Breuer, Staatshaftung für judikatives Unrecht (2011), pp. 378–520. 498 Gerhard Köbler v. Republik Österreich (Case C-224/01), [2003] ECR I-10239. 499 Traghetti del Mediterraneo SpA v. Repubblica Italiana (Case C-173/03), [2006] ECR I-5177. 500 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. 501 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. 502 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. 503 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. 504 Tsikrikas, ZZP Int. 9 (2004), 123, 132. 505 Tsikrikas, ZZP Int. 9 (2004), 123, 132.

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Art. 1 Brussels IIter Scope 3. Chapters III and IV of this Regulation apply where the wrongful removal or retention of a child concerns more than one Member State, complementing the 1980 Hague Convention. Chapter IV of this Regulation applies to decisions ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which have to be enforced in a Member State other than the Member State where the decision was given. 4. This Regulation does not apply to: (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 a child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) measures taken as a result of criminal offences committed by children. I. General purpose . . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . .

4

III. Scope of the Regulation . . . . . . . . . . . 1. Nature of the court . . . . . . . . . . . . . 2. Civil matters . . . . . . . . . . . . . . . . . a) Matrimonial matters . . . . . . . . . . . b) Matters of parental responsibility . . . . 3. Matrimonial proceedings . . . . . . . . . . a) Preliminary questions . . . . . . . . . . aa) Formless marriage . . . . . . . . . . bb) Same-sex marriage . . . . . . . . . cc) Polygamous marriage . . . . . . . . dd) Factual relationship . . . . . . . . . ee) Registered partnership . . . . . . . b) Divorce, legal separation and marriage annulment . . . . . . . . . . . . . . . . . aa) General . . . . . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

5 5 15 16 18 20 22 23 24 31 32 34

. . 44 . . 44

aaa) Decisions attributing a new civil status . . . . . . . . . . . . . bbb) Matrimonial rights and duties . ccc) Factual separation . . . . . . . . ddd) Consequences . . . . . . . . . . . bb) Divorce . . . . . . . . . . . . . . . . . cc) Legal separation . . . . . . . . . . . . dd) Marriage annulment . . . . . . . . . . 4. Parental responsibility . . . . . . . . . . . . . a) Concept . . . . . . . . . . . . . . . . . . . . b) Independence of matrimonial proceedings c) Children . . . . . . . . . . . . . . . . . . . . aa) Children of the family . . . . . . . . . bb) Definition of a child . . . . . . . . . . d) Content . . . . . . . . . . . . . . . . . . . . aa) Included matters . . . . . . . . . . . . bb) Excluded matters . . . . . . . . . . . .

44 47 48 49 52 58 61 67 67 71 73 73 76 81 83 87

Bibliography: D’Alessandro, The Impact of Private Divorces on EU Private International Law, in Scherpe/Bargelli (ed.), The Interaction between Family Law, Succession Law and Private International Law (2021); 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); Dutta, Das internationale Familien- und Erbrecht in der Rechtsprechung des EuGH, ZEuP 2020, 897; Dutta et al. (ed.), Scheidung ohne Gericht (2017); Gitschthaler (ed.), Internationales Familienrecht (2019); Lazic´, Regulation Brussels IIbis. Guide for Application (2018); Pintens, Marriage and Partnership in the Brussels IIa-Regulation, in Liber memorialis Petar Sarcˇevicˇ (2006); Pintens, Vom Staatsvertrag zur Brüssel IIb-Verordnung, ZEuS 2021, 187; Pintens, Der Ehebegriff in den Verordnungen Brüssel II. Fortschritt oder status quo?, in Festschrift Dose (2022), 373; Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht. Kommentar, Brüssel IIb-VO, Rom III-VO, (5th ed. 2023), Art. 1; Spellenberg in Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2015), Brüssel IIa-VO, Art. 1.

I. General purpose 1

Art. 1 Brussels IIter sets forth the material scope of the Regulation and defines the proceedings and 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 purely matrimo1 For the territorial scope see Art. 2 note 6 (Pintens) and Introduction note 57 et seq. (Magnus/Mankowski).

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nial 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). Whereas the matrimonial matters are not further defined,2 para. (2), (3) and (4) give a detailed list 2 of parental responsibility issues. Para. (2) and (3) contain a detailed list of the matters covered by (1) (b); para. (4) lists matters that are excluded from the scope of the Regulation. The Brussels IIbis Recast hast not changed at a large extent the content of Art. 1.3 The new para. (3) clarifies the relation between the Regulation and the 1980 Hague Convention. Further, only minor grammatical changes have been introduced.

3

II. Legislative history Art. 1 Brussels IIter is mainly based on Art. 1 (1) Brussels II Convention and on Art. 1 (1) Brussels II 4 Regulation. The main difference between the Regulation Brussels II and IIbis lied 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 were 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 applied 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 was not necessary. The Regulation Brussels IIter maintains the scope of the Regulation Brussels IIbis but adds with Art. 1 (3) a clarification concerning the 1980 Hague Convention.

III. Scope of the Regulation 1. Nature of the court Art. 1 Brussels IIbis referred to the nature of the competent court. This reference has been skipped in Art. 1 Brussels IIter. ‘Court’ is only defined by Art. 2 Brussels IIter. But it is not possible to define the scope of the Regulation without discussing the nature of the court under Art. 1 Brussels IIter. Nott only judicial but also non-judicial proceedings are covered by the Regulation: the nature of the court or administrative authority does not matter (Art. 2 (2) N° 1 Brussels IIter).4 Non-judicial proceedings, which cover administrative proceedings officially recognised in a Member State, were already included in the Convention, 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 must approve the divorce.

5

Even after the withdrawal of Denmark from the Regulation, the rule remains significant because sev- 6 eral national 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 mainte2 Here the recitals 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). 3 COM (2016) 441/2. 4 Also mentioned in Recital (14); Gitschthaler/Garber, Internationales Familienrecht (2019), Art. 1, n° 5. 5 Borrás Report para. 20-A. 6 § 37 et seq. Marriage Act. See Storm/Godsk Pedersen/Lund-Andersen, Denmark, in Pintens (ed.), Family and Succession Law, in Blanpain (ed.), Int.Enc. Laws (2021), n° 88 et seq. 7 § 64 Family Act of 18 October 2009; § 44 and 46 Vital Statistics Registration Act 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 (ed.), Internationales Ehe- und Kindschaftsrecht (2019), p. 61 et seq.

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Art. 1 Brussels IIter Scope nance. 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 must submit the child related matters to the court.9 Their decisions have constitutive character. In Latvia a notary can pronounce a divorce by consent. He must verify that the legal conditions are fulfilled.10 With the Decree Act of 12 September 2014 Italy introduced two administrative divorce types. The first type consists of an agreement negotiated between the spouses with the assistance of lawyers (negoziazione assistita). The public prosecutor must give his nihil obstat. In case of minor or dependent children he must give his consent. The registration by the civil-status registrar is according to legal doctrine declaratory, although Advocate General Collins came to the conclusion that the involvement of the registrar making a decision concerning the existence of a set of legally ordained requirements that has the consequence of dissolving the marriage, leads to a decision by its very nature having constitutive effects for the civil status of the parties.11 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. Spain also adopted an administrative divorce.12 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 must 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.13 In Greece the Law 4509/2017 introduced a divorce before the notary, who has to validate the agreements.14 In the Netherlands a bill was discussed in Parliament.15 But seen the critics that the registrar of civil status was not trained to give the spouses information and advice, the bill was withdrawn. 7

In some legal systems, officers of the court or administrative authorities, such as social or youth protection bodies, have jurisdiction in cases of parental responsibility. Thus, such proceedings fall within the scope of the Regulation.16 In Austria, a judicial officer, the Rechtspfleger, has authority to approve agreements concerning the exercise of parental responsibility.17 In Finland, custody, residence and visitation rights can be settled by an agreement approved by the communal social welfare board.18 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.19 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 8 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. 9 Art. 375–378 Civil Code. See Vlad, Romania, in Pintens (ed.), Family and Succession Law (fn. 6) (2019), p. 79 et seq. 10 Art. 77 Civil Code; Art. 325 et seq. Notariate Law. 11 Senatsverwaltung für Inneres und Sport, Standesaufsicht v. TB (Case- C-646/20), Opinion, § 46. Comp. Cubeddu Wiedemann/Henrich, Neue Trennungs- und Scheidungsverfahren in Italien, FamRZ 2015, 1258; Patti in Dutta et al. (fn. 11), p. 114 et seq. 12 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; Ferrer Riba in Dutta et al. (fn. 11), p. 122 et seq. 13 Act n° 2016–1547 of 18 November 2016 (Art. 229-1 Civil Code). See the commentaries in Dr. fam. 2016, N° 7–8; Ferrand in Dutta et al. (fn. 11), p. 167 et seq. A constitutional appeal has been rejected (Cons. Const. 17 November 2016, n° 2016–739 DC). 14 Art. 1441 Civil Code. 15 Wetsvoorstel Scheiden zonder rechter (divorce without a judge), Tweede Kamer 2014–15, n° 34 118. 16 Practice Guide for the application of the Brussels IIa Regulation (2015), p. 22; Rauscher/Rauscher, Europäisches Zivilprozess- und Kollisionsrecht. Kommentar, IV, (4th ed. 2015), Art. 1 Brüssel IIa-VO, note 20. 17 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. 18 Law of 8 April 1983. See Borrás Report para. 20-A. 19 THE Children and Parents Code, Ch. 6, S. 17a. See Eriksson/Schiratzki, Sweden, in Pintens (ed.), Family and Succion Law (fn. 6) (2008), p. 86.

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have the power to settle contact or visitation disputes, insofar as the case is not linked with a divorce procedure.20 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.21 Neither the Regulation nor the Borrás Report solve the question about the nature of the intervention 8 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.22 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.23 An example can be found in England under the former divorce law where uncontested divorces are dealt with in a summary proceeding, the Special Procedure. Many legal scholars qualify those divorces as administrative procedures.24 Admittedly, differentiation between declaratory and constitutive intervention is not always easy.25 However, legal certainty is best served when all administrative procedures fall within the scope of the Regulation and that only divorces without any intervention of a competent authority should qualify as private divorces.26 An important development was the decision in Sahyouni.27 The ECJ decided that private divorces 9 could not fall under the scope of the Regulation Rome III. From the objective pursued by this regulation it was clear that it covers solely divorces pronounced either by a national court or under the supervision of a public authority. The court added that this decision was taken in the light of the concept of divorce used in the Brussels IIbis Regulation.28 The decision in Sahyouni does not solve the question because it concerned a divorce pronounced by a religious authority in a third state. The so-called ‘private divorces’ in the European jurisdictions are no mere private divorces in the sense of the Sahyouni decision, since a national competent is involved. But as explained above the definition of divorce under the Brussels IIbis Regulation is not clear at all. There are many arguments to include not only constitutive but also declarative divorces.29 The differentiation between both forms is not always easy. It is not always very clear if a divorce has been pronounced by an administrative authority through an act of state or if the administrative authority has only been involved by way of authentication or registration. A divorce by declaratory decision cannot be assimilated with a pure private agree-

20 See Weiss/Szeibert, Hungarian Report, in Boele-Woelki et al (fn. 17), Question 55. 21 § 42 (2) and (3) of the Law for the Protection of Children and Minors. 22 Hau, FamRZ 1999, 484, 485; Helms in Dutta et al. (fn. 11), p. 343 et seq.; 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.16), Art. 1 Brüssel II-VO, note 10; Spellenberg in Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2015), Brüssel IIa-VO, Art. 1 note. 42. 23 See also Mostermans, NIPR 2002, 263, 265. 24 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 (45th ed. 2022). 25 See Dornblüth, Die europäische Regelung der Anerkennung und Vollstreckbarerklärung von Ehe- und Kindschaftsentscheidungen (2003) p. 56 et seq. 26 See also Art. 1 note 12 (Pintens). 27 Sahyouni v. Mamisch (Case C-372-16), FamRZ 2019, note Mayer. Hereto Kohler/Pintens, FamRZ 2018, 1377 et seq. 28 Sahyouni, § 48. 29 See also Kohler/Pintens, FamRZ 2016, 1516; Pintens, ZEus 2021, 197 et seq.

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Art. 1 Brussels IIter Scope ment because the administrative authority such as a notary or a civil-status registrar is involved.30 In the Member State of origin the administrative decision has the same legal effect as a divorce pronounced by judgement. A broad concept has the advantage that the status of the divorcees will be the same in all Member States.31 10

After the Sahyouni decision it was clear that in the future under Brussels IIbis only constitutive divorces would qualify as decisions. But in the light of the opinion of Advocate General Collins in Senatsverwaltung für Inneres v. TB a differentiation between constitutive and declarative decisions seems unnecessary. Anyway, under the Brussels IIter Regulation a solution for declarative decisions is offered by Art. 64 ff. Section 4 of authentic instruments and agreements applies in matters of divorce to authentic instruments which have been formally drawn up or registered and to agreements which have been registered in a Member State assuming jurisdiction under chapter II of the Regulation (Art. 64 Brussels IIter).32 Those authentic instruments and agreements which have binding legal effect in the Member State of origin shall be recognised in other Member States without any special procedure being required (Art. 65 Brussels IIter).

11

Recital 14 qualifies in accordance with the case law of the ECJ and especially which the Sahyouni case that the term ‘court’ should be given a broad interpretation to cover also administrative authorities or other authorities such as notaries exercising jurisdiction in matrimonial matters. In the light the case law of the court exercising jurisdiction means that the authority has the competence to decide matters disputed between the parties.33 This does not fit with a consent divorce including an agreement. But Recital 14 further explains that also agreements approved by the court (and this can also be another authority) following an examination of the substance in accordance with national law and procedure must be recognised and enforced as a decision. This means for example that the Spanish administrative divorce is a decision, because the authority exercises a certain control.34 The French and Italian administrative divorces are agreements qualifying as authentic instruments, because the involvement of the administrative authority is restricted to authentication and registration.35

12

Also within the field of parental authority, distinction between declaratory and constitutive decisions is unnecessary, but one must 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. 64.36

13

The Dutch ‘lightning’ divorce, introduced in 2001 and abolished in 2009, does not fall within the scope of the Regulation.37 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.38 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.39 The non-application of the Regulation, however, does

30 Helms in Dutta et al. (fn. 11), p. 347; Pintens, ZEus 2021, 197 et seq. 31 D’Alessandro in Sherpe/Bargelli (ed.), The Interaction between Family Law, Succession Law and Private International Law (2021), p. 67. 32 The restriction to authentic instruments and agreements drawn up or registered by a competent authority under the Regulation avoids forum shopping. 33 WB v. Notariusz Przemyslava Bac (Case C-658/17), § 40, 56 and 64, FamRZ 2019, 1184, note Fornasier. See Kohler/Pintens, FamRZ 2019, 1484; EE (Case C-80/19), § 51. 34 Ferrer Riba in Dutta et al. (fn. 11), p. 131 et seq. 35 Ferrand in Dutta et al. (fn. 11), p. 167; Patti in Dutta et al. (fn. 11), p. 106 et seq. Comp. Quéguiner, Dr.fam. 2018/9, 4 et seq. who does not qualify as an authetic instrument, but as an agreement. 36 Cf. Art. 64 note 5 et seq. (Magnus). 37 Mostermans, NIPR 2002, 263, 265; Mostermans (fn. 22), p. 8. Comp. Jansegers, [email protected] 2002/4, 61 et seq. 38 Comp. Gitschthaler/Garber, (fn. 4), Art. 1, n° 9. 39 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

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not exclude the recognition under autonomous private international law of the authentic documents converting the marriage into a registered partnership and dissolving this partnership.40 The administrative authority must be an authority of a Member State. A foreign embassy or consulate exercising competence within the territory of a Member State cannot be considered as such.41

14

2. Civil matters The Regulation employs the concept ‘civil matters’ without defining it, but it encompasses all matters 15 listed in art. 1 (1) (a) and (b). Recital 5 specifies that civil matters include civil court proceedings and the resulting decisions as well as authentic instruments and certain extra-judicial agreements in matrimonial matters and matters of parental responsibility including those concerning the return of a child under the 1980 Hague Convention. An autonomous interpretation is necessary.42 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 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.43 Therefore, the notion ‘civil matters’ should be interpreted broadly.44 a) Matrimonial matters Regarding matrimonial matters, private and religious proceedings are excluded.45 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.46 Also, judgments by muftis 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.47 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.48 The Oberlandesgericht in Frankfurt 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.49 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.50

40 41 42 43 44 45 46 47 48 49 50

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, 45, 146 et seq.; Pertegàs in Boele-Woelki/González Beilfuss (fn. 39), 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. Gray/Schrama Lazic´ in Lazic´ (ed.), Regulation Brussels IIbis. Guide for Application (2018), p. 4; Pirrung in Liber amicorum Kohler (2018), p. 410. Cass. b. 21 November 2007, RTDF 2008, 176. Cf. note 15 infra. Coester-Waltjen, FamRZ 2005, 241, 242. Borrás Report para. 20-B; Rauscher/Rauscher (fn. 16), Art. 2 Brüssel IIa-VO note 7 et seq.; Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO, note 44 et seq. Dornblüth (fn. 25); 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. 39), p. 133, 137. Vgl. Rauscher/Rauscher (fn. 16), Art. 2 Brüssel IIa-VO note 7. OLG Frankfurt 16 January 2006, FamRBint 2006, 77, note Block. See also Jayme/Nordmeier, IPRax 2018, 278 who in the light of the decision in Sahyouni qualify the decision by a mufti as a religious divorce, because the confirmation by a civil court does not alter the fact that the divorce is pronounced by the mufti. Vassilakis/Kourtis in Boele-Woelki/Gonzàlez Beilfuss (fn. 39), p. 133, 137 et seq.

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On the other hand, Concordats and other bilateral agreements between Italy, Malta, Portugal and Spain and the Holy See are safeguarded.51 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.52 b) Matters of parental responsibility

18

Regarding parental responsibilities, youth protection measures with a penal character and penal measures are excluded.53 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. 1 (4) (g) Brussels IIter).54 Moreover, certain civil law items are excluded by Art. 1 (4) Brussels IIter.55

19

In practice, it will not be easy to define ‘civil matters’. As with all other concepts in the Regulation, an autonomous interpretation is necessary as stated by the ECJ.56 In systems where, for example, the placement of a child in a foster family57 or in institutional care58 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.59 The placement of a child under the supervision of a youth protection service is another example.60 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.61 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.62 3. Matrimonial proceedings

20

Matrimonial proceedings should be related to the dissolution (divorce or annulment) or weakening (legal separation) of the marital bond.

21

Dissolution through declaration of death or absence is not equated to dissolution by divorce, but rather to dissolution by actual death and is, therefore, not covered by the Regulation.63 a) Preliminary questions

22

It is necessary to examine the meaning of the term ‘marriage’ and whether the Regulation 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 51 See Art. 99, as regards treaties with the Holy See. 52 Hereto Long, Familia 2006, 1127, 1134 et seq.; Long in Boele-Woelki/González Beilfuss (fn. 39), p. 167, 169 et seq. 53 Cf. note 73 infra. 54 Storme, [email protected] 2005/1, 50, 52. 55 Cf. note 73 infra. 56 Grand Chamber, C. (Case C-435/6), § 46; Health Service Executive v. S.S. and A.C. (Case C-92/12). 57 Grand Chamber, C. (Case C-435/6) IPRax 2008, 509. 58 A (Case C-523/07), FamRZ 2009, 843. 59 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. 16), 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. 60 Hof Gent 5 September 2005, E.J. 2005, 183, note Roeland, R.W. 2005–06, 432. 61 See for other examples Font i Segura, REDI 2004, 273, 279 et seq. 62 Gogova v. Iliev (Case C-215/15). 63 Comp. Borrás Report para. 27; Dornblüth (fn. 25), p. 59.

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apply only to a formal bond defined as ‘marriage’ and that informal bonds that are nonetheless factual relationships fall outside the scope of the Regulation. Once this preliminary question is examined, the scope of the Regulation can be determined. aa) Formless marriage Formless marriages as Islamic or common-law marriages can only be considered if they are considered by applicable national law equivalent to a formal marriage in the traditional sense.64

23

bb) Same-sex marriage As the Brussels II and IIbis Regulation the Brussels IIter Regulation, there is no definition or explanation of the concept of marriage. The much-debated question on the inclusion of same-sex marriages in the scope of the regulation is not answered.

24

Marriage, in the traditional sense, is the union between a man and a woman.65 In 2001 the Netherlands was, however, the first country to open the term ‘marriage’ to same-sex partners.66 Belgium followed this example in 2003.67 2013 Spain enacted legislation opening the term ‘marriage’ to samesex partners.68 In the last years the example of those three legislations were followed by several EUMember States as Austria, Denmark, Finland, France, Germany, Ireland, Luxemburg, Malta, Portugal, Slovenia and Sweden.69 The question thus arises whether, along with heterosexual marriages, samesex marriages fall within the scope of the Regulation.

25

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,70 although the Regulation on matrimonial property regimes has left the definition of marriage as a preliminary question to the private international law of the Member States.71 This implies 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

26

64 Rauscher/Rauscher (fn. 16), Art. 1 Brüssel II-VO note 9. 65 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. 66 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. 67 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. 68 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. 69 See Boele-Woelki/Fuchs (ed.), Legal Recognition of Same-Sex Relationships in Europe (2nd ed. 2012); BoeleWoelki/Fuchs (ed.), Same -Sex relationships and Beyond (3rd ed. 2017); Curry-Sumner in Scherpe (ed.), European Family Law II (2016), p. 118 et seq. In Slovenia the Constitutional Court recently decided that the impossibility to enter in a same-sex marriage violated the principle of non-discrimination of the constitution. Therefore, those marriages are immediately possible. Parliament should enact legislation in six months’ time (16 June 2022, n° U-I-486/20 and Up-572/18). 70 Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO note 5; Spellenberg (fn. 20) Einl zu Brüssel IIa-VO note 51 et seq. Comp. Gray/Schrama/Lazic´ in Lazic´ (fn. 42), p. 6 et seq. indicating that several Member States favour an interpretation on the basis of their national law. See also Pirrung in Liber amicorum Kohler (2018), p. 410 et seq. On the autonomous interpretation of communitarian law see Audit, Clunet 2004, 789 et seq. But even if a member state uses a national concept, he has to observe the EU-Charter of Fundamental Rights. The refusal by a court of a Member State to pronounce the divorce of a same-sex marriage entered into in another Member State is a violation of Art. 21 of the Charter (Kohler/Pintens, FamRZ 2016, 1515). 71 Art. 1 (2) (b) Matrimonial Property Regulation and Recital 21. See Kohler/Pintens, FamRZ 2016, 1510. Although some authors favour a lex-fori interpretation of the concept of marriage under the Rome III Regulation, there is no indication that such interpretation is required. An autonomous interpretation ist the only interpretation in conformity with the case law of the ECJ. Seen that 9 out of 14 Member States participating in the enhanced cooperation admit same-sex marriages an autonomous interpretation should include such marriages (Pintens, Der Ehebegriff in den Verordungen Brüssel II. Fortschritt oder status quo?, in Festschrift Dose (2022), p. 375 et seq.

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Art. 1 Brussels IIter Scope 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.72 When implementing the Brussels IIbis Regulation, the European legislator was aware of the same-sex marriage 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 well-established 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.73 Resulting from this, an interpretation which includes same-sex marriages was until 2003 impossible since only three legal systems (Belgium, The Netherlands and Spain) 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.74 It was doubtful whether the introduction of same-sex marriage in a growing number but still a small minority of the twenty-eight Member States could convince the Court of Justice to give a broader interpretation to the definition of marriage considering that the matter was still highly controversial in some Member States. Although autonomous interpretation has a dynamic character, the dominant position in legal doctrine restricted the definition of marriage to heterosexual marriage.75 27

A minority of authors, especially Dutch and some Belgian, advocated the inclusion of same-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.76 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.77 Also, it has been argued that the Commission would seem to have accepted, as a consequence of the D.case, that a Dutch same-sex marriage falls under the concept of ‘marriage’, as mentioned in the Staff Regulations.78 This latter argument is not convincing, however. 72 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. 73 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. 74 Dilger (fn. 72), p. 100; Pintens in Liber Memorialis Sˇarcˇevic´ (2006), 335, 336 et seq. 75 Martiny in Boele-Woelki/Fuchs, 2nd ed. (fn. 647), p. 236 et seq. and 267; Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO note 5 et seq.Comp. Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 3 et seq. 76 Boele-Woelki, ZfRV 2001, 121, 127; Jessurun d’Oiveira in Liber Amicorum Siehr (2002), p. 527, 534; Mostermans, NIPR 2002, 263, 266; Quiñones Escámez in Quiñones Escámez et al. (ed.), Crisis matrimoniales. Protección del menor en el marco europeo (2005), p. 103, 107; Pertegàs in Boele-Woelki/Gonzàlez Beilfuss (fn. 39), p. 57, 64 et seq.; Swennen in Meeusen et al. (fn. 73), 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. 77 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. 78 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.

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The Commission did indeed reflect on how to consider 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. 1a79 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’.80 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.

28

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.81 Some authors who share the majority opinion have their doubts, or pointed out, that in the long run this situation needs revision.82

29

But at the moment of the enactment of the Regulation Brussels IIter times have changed, and impor- 30 tant developments took place. In accordance with his case law on the law of names the ECJ underlined in the decision Coman that a person’s status, which is relevant to the rules on marriage, is a matter falling within the competence of the Member States. They are free to decide whether or not to allow same-sex marriages.83 But in exercising that competence the Member States must comply with EU law, in particular with the Treaty provision on the freedom to move and reside in the territory of the Member State.84 Art. 21 (1) TFEU is to be interpreted as meaning that a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months.85 This decision is clearly limited to the right to reside and does not include the obligation to introduce or to recognize a same-sex marriage.86 It is not excluded that the ECJ will enlarge his case law to other areas, but the Coman decision as such is not very helpful as an argument for enlarging the scope of the Regulation. Therefore, it is better to grant the opening of the notion marriage on the developments in the Member States. Now that a majority of 14 out of 27 Member States have opened marriage for same-sex couples, there is a clear tendency that can ground the widening of the scope of the Regulation based on an autonomous interpretation.87 Such an interpretation would be in accordance with Art. 21 of the EU-Charter.

79 Presently Art. 1d. 80 Answer Vitorino (fn. 73), p. 3. 81 Except affiliation, but this cannot be the point since also traditional marriages do not have to lead to procreation. 82 Helms, FamRZ 2002, 1593, 1594; Fulchiron, Dr. & Patr. 2005/136, 34, 35; Gaudemet-Tallon, Clunet 2001, 381, 387; Pintens in Liber Memorialis Sˇarcˇevic´ (fn. 74), 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 EU-law. 83 Coman, (Case C-673/16), § 37. 84 Coman, § 38. 85 Coman, § 52 et seq. 86 Comp. Ní Shúilleabhaín in Scherpe/Bargelli (fn. 31), p. 18 who favours a wider interpretation of the judgement implying a direct recognition of same-sex marriages in an intra-EU context. 87 Dutta, ZEuP 2020, 900 et seq.; Kohler/Pintens, FamRZ 2019, 1480; Kruger/Samyn, JPIL 2016, 132 et seq.; Pintens in Festschrift Dose (fn. 71), p. 377 et seq.

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Although the Member States do not allow polygamous marriages under their law, they fall under the scope of the Regulation. Many Member States recognises polygamous marriages, if the national laws of the spouses allow them. They permit that those spouses live in their country. Therefore, a polygamous marriage cannot lead to the inapplicability of the Regulation.88 dd) Factual relationship

32

Relationships that exist in fact – factual relationships – must 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.89

33

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 and Slovenia (for heterosexual partnerships only).90 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.91 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.92 ee) Registered partnership

34

The question arises whether a registered partnership can be equated to a marriage. Most legal scholars answer this question in the negative or leave it open.93 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.94 These partnerships are 88 Gitschthaler/Garber (fn. 4), Art. 1, n° 50; Staudinger/Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO, n° 11. 89 Calò, Familia 2005, 509, 520; Dilger (fn. 72), p. 82; Pintens in Liber Memorialis Sˇarcˇevic´ (fn. 74), p. 335, 338. 90 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: Sˇarcˇevicˇ in Sˇarcˇevicˇ 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: Kraljic´/Rijavec in Pintens (ed.), Family and Succession law, V° Slovenia (2016), p. 75 et seq.; Zupancˇicˇ/Novak in Verwilghen (ed.), Régimes matrimoniaux, successions et libéralités, III (3rd ed. 2003), p. 2313, 2348 et seq. 91 Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO, note 9. 92 Dutta/Wedemann in FS Kaissis (2012), p. 139; Pintens in FS Stein (2015), p. 812. 93 Bogdan/Pertegás Sender (fn. 19); 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 2nd ed. (fn. 64), p. 236 (no); Polyzogopoulos in Gottwald (ed.), Aktuelle Entwicklungen des europäischen und internationalen Zivilverfahrensrechts (2002), p. 139 et seq. (no); Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO, note 8 (no); Schack, RabelsZ 2001, 615, 620 (no); Spellenberg (fn. 22), 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). 94 See the comparative studies of Basedow/Hopt/Kötz/Dopffel (ed.), Die Rechtstellung Gleichgeschlechtlicher Lebensgemeinschaften (2000); Boele-Woelki/Fuchs, 3rd ed. (fn. 69.); Coester, FamPra.ch 2002, 748 et seq.; CurrySumner, 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/Hayward, The future of Registered Partner-

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not always restricted to same-sex relations, as is the case under Nordic law, but also apply to heterosexual relations in some legal systems as Belgium and France.95 In addition, several resolutions of the European Parliament have played an important role.96 In a Re- 35 solution 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.97 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.98 In a Resolution on fundamental rights in the European Union of 4 September 2003, the Parliament recommends once again that the Member States recognise nonmarital relationships, both heterosexual and homosexual, and confer the same rights on partners in these relationships as on those who are married.99 However, all the new legal institutions employ different solutions.100 Belgium,101 the Spanish Communities (Catalonia, Aragon, Galicia, Navarra, Valencia, the Balearic Islands, Madrid, Asturias, Andalusia, the Canarian Islands, Extra-Madura and the Basque Country),102 France103 and the Netherlands104 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.105 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,106 as has Switzerland.107 The English Parliament discussed a registered partnership for heterosexuals and for homosexuals,108 but finally adopted a government proposal on a civil part-

95 96 97 98 99 100 101 102 103 104 105 106

107 108

ships (2017); 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). 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. 6957), p. 121 et seq.; Dutta, AcP 2016, 620 et seq. Pintens, FamRZ 2000, 69 et seq., especially 71; Pintens in Scherpe/Yassari (fn. 94), p. 277 et seq. Martin Casals in Henrich/Schwab (ed.) (fn. 94), p. 283, 293 et seq.; González Beilfuss (fn. 94), p. 44; González Beilfuss in Scherpe/Yassari (fn. 94), 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. 94), 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. 94), 51 et seq. Dopfel/Scherpe in Basedow et al. (ed.) (fn. 94), 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). The German Lebenspartnerschaft was abolished on 1 October 2017 by the Law of 20 July 2017 introducing same-sex marriages. 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

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Art. 1 Brussels IIter Scope nership for homosexuals only.109 The Civil Partnerships, Marriages and Deaths (Registration ect) Act 2019 opened the civil partnership for persons of the opposite sex from 26 May 2019. 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.110 However, most legal systems do not allow a partnership between relatives and relatives-inlaw.111 37

The consequences of a partnership are often regulated very differently from those of a marriage. France and Belgium have a partnership with limited consequences:112 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.113 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.114 Divorce law applies equally to the dissolution of the partnership.115 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 2004.116 Marital property law applies ipso iure and the surviving partner has the same inheritance rights as the surviving spouse.117 Dissolution of either is only possible by judicial decision.118 Also the English and Swiss partnerships have strong consequences.

38

Neither the Regulations Brussels II, IIbis and ter 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.119 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.120 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.121

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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. 94), p. 277, 286. E.g. to the 3rd degree in France (Art. 515–2 CC). Ferrand in Scherpe/Yassari (fn. 94), p. 211, 225 et seq.; Pintens in Scherpe/Yassari (fn. 94), p. 286, 287 et seq.w. See González Beilfuss (fn. 94), p. 47 et seq.; González Beilfuss in Scherpe/Yassari (fn. 94), p. 249, 259 et seq. Dopfel/Scherpe (fn. 94), p. 7, 20 et seq. and 25. Dopfel/Scherpe (fn. 94), 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. See Kaiser, FamRZ 2002, 866 et seq. Calvo Caravaca/Carrascosa González, 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. 72), p. 89; Dornblüth (fn. 25), p. 41. P. 3 and 7.

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Through teleological interpretation, the term ‘marriage’ could assimilate strong registered partner- 39 ships.122 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.123 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,124 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.125 The exclusion of registered partnerships is in accordance with the case law of the ECJ. In the case of 40 D. and the Kingdom of Sweden v. Council of the European Union, the ECJ for the first time dealt with a registered partnership.126 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 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.127 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.128 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.129 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.130 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.131 The D. case, with all its consequences, shows that the Court cannot be expected to contribute greatly 41 to a real breakthrough in the question of assimilation of registered partnership within the definition of ‘marriage’.132

122 123 124 125 126

127 128 129 130 131 132

Comp. Gaudemet-Tallon, Clunet 2001, 381, 387; Spellenberg (fn. 22), 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 Sˇarcˇevic´ (fn. 74), 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. 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. 76), p. 527 et seq.

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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 European legislator.133 This reasoning applies to heterosexual as well as to same sex-partnerships.

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National case law refused to assimilate ‘registered partnership’ within the definition of ‘marriage’ and declared the Regulation not applicable.134 b) Divorce, legal separation and marriage annulment aa) General aaa) Decisions attributing a new civil status

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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 decisions attributing a new civil status (Gestaltungsurteile, jugements constitutifs).135 In legal scholarship, there is considerable discussion as to whether the term ‘judgment’ (now decisions) 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 favor the first position, that only positive decisions are covered. Firstly, the English version of Art. 2, n° 4 Regulation IIbis 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.136 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 Regulation IIbis mentions ‘Entscheidung über die Ehescheidung’, which would rather be translated as ‘a judgment relating to divorce’.137 Art. 1 (1) Regulation IIter puts the German version in accordance with the English and French versions.

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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.138 This point of view is confirmed in the Explanatory Memorandum to the Brussels II Regulation.139 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.140 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 favor marriage, but divorce.141 However, the chosen solution was a political one and the only possible way to come to a convention, 133 In the same sense Mostermans, NIPR 2002, 263, 267. 134 Rb. Roermond 29 March 2001 NIPR 2001, 327 (without any motivation). 135 Rauscher/Rauscher (fn. 16), Art. 2 Brüssel IIa-VO, note 10; Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 18 et seq. 136 Also Recital (9) states that the Regulation should apply only to the dissolution of matrimonial ties. See Kohler, NJW 2001, 10, 13. 137 Helms, FamRZ 2001, 257, 258 and n. 24 there. 138 Borrás Report para. 60; Jänterä-Jareborg in Sˇarcˇevic´/Volken, Yearbook of Private International Law 1999 (1999), p. 1, 19, fn. 49. Comp. Kohler, NJW 2001, 10, 13. 139 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.” 140 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. 141 Dornblüth (fn. 25), p. 55; Kohler, NJW 2000, 10, 15; Jayme, IPRax 2000, 165 et seq.; Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 18 et seq.

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and afterwards to a Regulation. Moreover, it is a 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 ‘decision’ to positive decisions only would imply that a nega- 46 tive judgement could not be recognised based on international conventions and autonomous private international law of the requested state. The answer should be in the affirmative, since Art. 2 (1) Regulation IIter defines the meaning of the term ‘decision’ 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.142 Moreover, excluding the possibility of recognising a negative decision would mean that a negative decision from a third state could be recognised under national law and an EC-decision could not.143 bbb) Matrimonial rights and duties Decisions on matrimonial rights and duties are excluded since they do not attribute a new legal sta- 47 tus. Decisions ordering the reconstitution of matrimonial life144 or confirming the right to refuse matrimonial life145 are respectively positive and negative declaratory decisions regulating matrimonial duties without dissolution of the marriage.146 Those decisions are left to national law, except for decisions on proprietary rights and duties as from 29 January 2019 falling under the scope of the Matrimonial Property Regulation for the participating Member States.147 ccc) Factual separation Since factual separations do not provoke a change of legal status, even if they are allowed or confirmed by a judgment, they do not come within the purview of the Regulation.148 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.149 The judgment does not convert the factual separation into a legal one.

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ddd) Consequences Consequences of judgments dissolving or ‘weakening’ the marriage do not fall within the scope of 49 the Regulation, except for decisions on parental responsibilities (Art. 1 (1) (b) Regulation IIter).150 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 Arts. of the Regulation, but in Recital (9). However, it was one of the main options of the Convention and is generally accepted.151 The rule applies, even if the consequences are interrelated with or part of the divorce judgement.152 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.

142 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. 143 Andreae in ERA-Forum 2003/1, 28, 33. 144 E.g. for Germany: § 1353 BGB and § 120 (3) FamFG. 145 E.g. for Germany: § 1353 II BGB. 146 Comp. Dornblüth (fn. 25), p. 40. 147 Art. 1 (1) Matrimonial Property Regulation. See Kohler/Pintens, FamRZ 2016, 1510. 148 Rauscher/Rauscher (fn. 16), Art. 1 Brüssel II-VO, note 2. 149 Gruber, IPRax 2005, 293, 294. Contra: Schlosser, Art. 1 EheGVO aF, n° 2. 150 Trib. Brussels 30 May 2007, JLMB 2008, 845, note Wautelet; Borrás, Rev.jur.cat. 2003, 361, 368 et seq.; Spellenberg, (fn. 22), Art. 1 Brüssel IIa-VO note 16. 151 Borrás Report para. 22; Niklas (fn. 41), p. 31 et seq. 152 Widmer, FamPra.ch 2001, 689, 694.

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Property consequences, such as the liquidation of the matrimonial regime,153 the division or the reallocation of property or the division of pension rights (e.g., the German Versorgungsausgleich)154 and other ancillary measures are excluded.155 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.156 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.157 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.158 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.159 The Spanish pension compensatoria deserved an identical qualification, since it refers to the possibilities of obtaining employment and can cover vital needs.160 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.161 The Court provided a broad interpretation of the concept of maintenance 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.162 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.163 153 Rights in property arising out of a matrimonial relationships are also excluded from the scope of Brussels I and Ibis (Art. 1, (2) (a)). For the interpretation of this conception see also de Cavel v. de Cavel, (Case 143/ 78) (1979) ECR 1055, Clunet 1979, 681, note Huet, RCDIP 1980, 621. In Iliev v. Iliev the ECJ decide that the distribution of marital property is a matter of matrimonial property law 5Case C-67/17, § 31). See Dutta, ZEuP 2020, 902 et seq. Now the matter falls under the Matrimonial Property Regulation. 154 Hereto Borth, Versorgungsausgleich in anwaltlicher und familiengerichtlicher Praxis (9th ed. 2021). 155 Recital 9. 156 See Font i Segura, REDI 2004, 273, 276 et seq. 157 Hereto Monéger, Dr. & Patr. 2005/138, 64 et seq. 158 de Cavel v. de Cavel I, (Case 143/78) (1979) ECR 1055, 1066, Clunet 1979, 681, note Huet. 159 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. 160 M. Casals/Ribot/Solé, Spanish report, in Boele-Woelki et al. (fn. 8), Question 58. 161 Van den Boogaard v. Laumen, (Case C-220/95) (1997) ECR I-1147, 1183, IPRax 1999, 35, note M. Weller, Clunet 1998, 568, note Huet, RCDIP 1998, 466, note Droz, CDE 1999, 201, note Tagaras. 162 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). 163 Dutta, ZEuP 2016, 457.

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bb) Divorce Divorce is known in all legal systems of the European Union since Malta adopted divorce legislation in 2011.

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The Regulation applies to every kind of divorce judgement, irrespective of the form (contested or consent divorce) or the ground (fault, separation, irretrievable breakdown or on demand). Also, divorces based on a conversion of legal separation into divorce fall within the scope of the Regulation.

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Recital (9) excludes the reasons for or the grounds of divorce from the Regulation since this instrument is not dealing with applicable law in divorce cases.164 In the legal systems of the European Union, fault divorce is declining in favor 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).165 In Austria, Cyprus, France, Lithuania and Poland, 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, 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.166

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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 consider the fault of the spouses and to mention this in the operative part of the judgment, if the applicable law so prescribes.167

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It is possible to recognise and enforce the divorce consequences under other conventions or under autonomous law.168

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The competent authority deciding on an international maintenance case can consider the fault of the spouses if the applicable law so allows.169

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cc) Legal separation Legal separation (séparation de corps, Trennung von Tisch und Bett) is not a divorce, but a ‘weakening’ 58 of the marriage bound by a decision of a competent authority. Consequently, 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.170 Community property systems are mostly converted into separate property.171 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, 164 This matter is left to national law and for the participating Member States to the Rome III Regulation. 165 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. 166 Comp. Spellenberg (fn. 22), 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. 16), Art. 1 Brüssel IIa-VO note 18 et seq. 167 Gruber, IPRax 2005, 293, 294; Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO note 18. 168 Dornblüth (fn. 25), p. 40. 169 Dornblüth (fn. 25), p. 40. 170 See e.g. Art. 308 Belgian CC; Art. 303 French CC. 171 See e.g. Art. 311 Belgian CC; Art. 302 French CC.

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Art. 1 Brussels IIter Scope 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 and Lithuania. In most legal systems, legal separation is a permanent and definitive status, but the possibility to convert the separation into a divorce exists.172 60

In some legal systems, where legal separation is unknown, private international law makes it possible for the courts to decree a legal separation between spouses if their national law knows this institution.173 Such decisions fall within the scope of the Regulation. dd) Marriage annulment

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Marriage annulment is known in all Member States except Finland and Sweden, where divorce proceedings apply.174 As a result, when divorce proceedings are pending in Sweden, whatever the ground for divorce may be,175 a court in another Member State is not competent to decide on a subsequent annulment claim.176 Moreover, an annulment in the form of a divorce is to be recognised and enforced by every Member State.177

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National laws treat defective marriages in very different ways.178 In a first category of legal systems, a distinction is made between void and voidable marriages, with many differentiations and varying terminology, e.g., Dutch (nietig179 huwelijk/vernietigbaar huwelijk),180 English (void marriage/voidable marriage),181 German (Nichtehe/aufhebbare Ehe)182 and Slovak (non matrimonium/matrimonium nullum)183 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,184 Finnish,185 French,186 and Slovenian187 law).

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The term ‘annulment’ has to be interpreted autonomously.188 The Regulation and the Borrás Report do not provide any guidance.189 One opinion is that declaratory judgments do not fall within the scope of the Regulation.190 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.191 Also, Art. 2 (1) Regulation IIter does not allow the recognition of a judgment denying 172 173 174 175 176 177 178 179 180

190

See Art. 5. See e.g. for Germany: BGH 1 April 1987, FamRZ 1987, 793. Cf. supra note 41 et seq. See Art. 19 (1). Kohler, NJW 2001, 10, 12. Comp. Rauscher/Rauscher (fn. 16), 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 (32th ed. 2018), p. 45 et seq.; Frank in Liber amicorum Pintens I (2012), p. 607 et seq. Hatapka in Boele-Woelki/Gonzàlez Beilfuss (fn. 39), 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 Kraljic´/Rijavec in Pintens (fn. 6) 2016, V° Slovenia, p. 65. Dilger (fn. 72), p. 107; Pintens in Liber Memorialis Sˇarcˇevic´ (fn. 74), 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. 72), p. 118 et seq. Helms, FamRZ 2001, 257; Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 23 et seq.

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a divorce claim. This position and the underlying reasoning must be accepted in this case, also.192 The Regulation is based on a certain convergence of the legal systems and this convergence is missing in this regard.193 Other legal scholars favor the opposite solution.194 They use the theory of the Normzweck and mainly 64 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.195 In addition, they note that the distinction between void and voidable marriages is often very dogmatic and even arbitrary;196 that the Regulation would favor legal certainty.197 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.198 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 and IIter 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.199 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 must take all systems into account and opt for the mainstream defining ‘annulment’ to also cover the infrequent case of void marriages.200 For the same reasons no distinction must be made between decisions having an effect ex nunc or ex tunc.

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Marriage annulment proceedings after the death of one or both spouses were considered as not fall- 66 ing within the scope of the Regulation. The Borrás Report explains that, in most cases, those situations arise as preliminary questions relating to successions and that they will be resolved by international instruments such as the 1970 Hague Convention on the recognition of divorces and legal separations or according to national law.201 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 Regulation IIbis.202 But the ECJ ruled that the formulation of Art. 1 (1) (a) Regulation IIbis 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.203 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.204 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.205 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205

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. 16), 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. 39), p. 247, 250. Borrás Report para. 27. Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO, note 27. Mikolajczyk v. Czarnecki (Case C-294/15) § 27. See Gray/Schrama Lazic´ in Lazic´ (fn. 42), p. 8 et seq. Mikolajczyk v. Czarnecki (Case C-294/15) § 35. Mikolajczyk v. Czarnecki (Case C-294/15) § 36. See Dutta, ZEuP 2020, 901 et seq.

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Art. 1 Brussels IIter Scope 4. Parental responsibility a) Concept 67

Parental responsibility is a concept that is mainly used in international instruments.206 On an 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.207 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).208 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.”

68

Also, the European Convention of 25 January 1996 on the exercise of children’s rights,209 as well as the Council of Europe’s White Paper of 15 January 2002 on principles concerning the establishment and legal consequences of parentage,210 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.211

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Although the terms ‘parental responsibility’ and ‘parental responsibilities’ are not commonly used in European legal systems,212 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,213 and the administration of the child’s property.214

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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.215 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.216 This autonomous interpretation is confirmed in the Brussels IIter Regulation, which gives a definition of the scope of parental responsibility in Art. 1 (1) (b). The definition is clearly inspired by the definition in the 1996 Hague Convention and covers the 206 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. 207 Lagarde Report para. 14. 208 Lagarde Report para. 14. 209 ETS n° 160. 210 CJ-FA (2001) 16 rev; available under http://www.legal.coe.int/family. 211 Boele-Woelki/Ferrand/Gonzàlez-Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law Regarding Parental Responsibilities (2007), p. 30 et seq. 212 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. 175), Question 1 and 5. 213 OF v. PG, Case C-759/18. See note 70. 214 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. 17), Question 1. 215 Borrás Report, n° 24; Jänterä-Jareborg in Sˇarcˇevic´/Volken, Yearbook of Private International Law 1999, 1, 14; McEleavy, ICLQ 2002, 883, 884. 216 Andreae in ERA-Forum 2003/1, 28, 35; Niklas (fn. 41), p. 42 et seq.; Gitschthaler/Garber (fn. 4), Art. 1, n° 53–54. Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 49.

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attribution, exercise, delegation, restriction and termination of parental responsibility. The Regulation IIter describes those matters in particular in Art. 1 (2), gives a list of excluded matters in Art. 1 (4); and finally defines the term ‘parental responsibility’ in Art. 2 (2) n° 9 Regulation IIter. b) Independence of matrimonial proceedings The Convention and the Brussels II Regulation took parental responsibility issues only into account 71 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 was 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 Regulation IIbis, now Art. 7 Regulation IIter). The independence of matrimonial proceedings implies that the scope of the Regulation not only cov- 72 ers 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.217 c) Children aa) Children of the family The Convention and the Brussels II Regulation only applied to the children of both spouses, the bio- 73 logical 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 favor 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.218 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.219 Furthermore, it was argued that the other solution could affect the fundamental rights of the father or the mother living in another Member State.220 The restriction to children of both spouses has rightly been seriously criticised, especially in view of 74 the increase of recomposed families.221 In some legal systems, such as the Dutch, English and Scottish, the partner of the parent can have parental responsibility.222 The restriction to children of both spouses can lead to different competence and recognition rules for children of the same family.223 The Brussels IIbis Regulation has taken this criticism into account and ensured the equality of all children. The Regulation Brussels IIbis and IIter apply to all children.224 It makes no difference whether or not the parents live in a heterosexual or in a homosexual marriage, a registered partnership or factual 217 Comp. Storme, [email protected] 2005/1, 50, 51 et seq. 218 S. 52 Matrimonial Causes Act 1973; s. 105 (1) Children Act 1989, Everall/Nichols, Fam.L. 2002, 674, 677 et seq. 219 Borrás Report para. 25. 220 Borrás Report para. 24. 221 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. 222 Cf. Art. 2 note 23 (Pintens). 223 Ancel/Muir Watt, RCDIP 2001, 403, 426; Gaudemet-Tallon, Clunet 2001, 381, 387. 224 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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Art. 1 Brussels IIter Scope union, whether or not the parents are living together and whether or not they are the biological parents of the child in question. 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. 75

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.225 bb) Definition of a child

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Although Art. 2 gives a list of definitions used in the Regulation Brussels II and IIbis, the term ‘child’ had not been defined. Contrary to other international instruments, there was no age limit. Of course the Regulations were only applicable to children under parental responsibility, which, in principle, means until the age of majority.226 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 advocated an age limit of eighteen years.227 However, avoidance of contradiction seems no reason to set aside the rules on conflict of laws. Therefore, the age of majority had to be determined in each individual case in accordance with the national law applicable to the child.228 In practice, this made 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.229 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.230 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.231 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 apply.

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The Brussels IIter Regulation solves the problem by defining the child as ‘any person below the age of 18 years’ (Art. 2 (2) n° 6). Recital 17 applies the Regulation to all children up to the age of 18 years even in cases where they have acquired capacity before that age under the law governing their personal status, for example trough emancipation by reason of marriage. This is only acceptable, if the emancipation maintains parental responsibility to a certain extent. If this is not the case, the Regulation is not applicable, because the spouses do not qualify as children under parental responsibility and emancipation is excluded from the scope of the Regulation.232

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The 1980 Hague Convention and Chapter III of the Regulation, which compliments the application of the 1980 Hague Convention in relations between Member States, continue to apply to children up to the age of 16 years.

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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.233 The same applies 225 Borrás Report para. 26. 226 Rauscher/Rauscher (fn. 16), 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. 227 Spellenberg (fn. 22), Art. 1 Brüssel IIa-VO note 54. 228 In this sense: Practice Guide, p. 19; Coester-Waltjen in Gottwald (fn. 93), p. 163, 168; Lowe, IFL 2004, 207. Comp. Fonti i Segura, REDI 2004, 273, 283 et seq. 229 Lowe, IFL 2004, 205, 207. 230 See Norrie, Scottish Family Law (3rd ed. 2015, p. 3 et seq. 231 ALC (S) A 1991, s. 3 (1). 232 Pintens, ZEuS 2021, 187 et seq. See note 70. 233 Fonti i Segura, REDI 2004, 273, 283; Watté/Boularbah, Rev. Trim. Dr. fam. 2000, 550.

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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.234 Since the term ‘child’ as such is only defined on the basis of age, the question arises whether the Reg- 80 ulation is applicable to unborn children. In many legal systems, parental responsibility by the father over the unborn child is excluded;235 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.236 d) Content The scope of parental responsibility covers its attribution, exercise, delegation, restriction and termination (Art. 1 (1) (b) Regulation IIter). These matters are further detailed in (2) to (4), which offers two lists, one with the topics included and another with the topics excluded. These lists are to a large extent inspired by Art. 3 and 4 of the 1996 Hague Convention on the protection of children.

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Since the term ‘parental responsibility’ covers a broad scope, it includes all rights and duties of a holder of parental responsibility relating to the person and the property of the child.237 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.238 Custody and access must be interpreted autonomously.239

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aa) Included matters (2) includes: 83 (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.240 Examples are actions concerning the right to determine the child’s residence241 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.242 Further are included all decisions concerning 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;243 In the Matousˇková case the ECJ decided that the authorization of legal transactions in succession matters by the holders of parental responsibility does not fall in the scope of the Succession Regula-

234 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). 235 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. 236 Comp. Lowe, C.I.L. 2002–03, 315, 324. 237 See Jault, Dr. & Patr. 2005/138, 58, 60 et seq. 238 Practice Guide, p. 8. For an example: Hof Gent 5 September 2005, E.J. 2005, 183, note Roeland, R.W. 2005–06, 432. 239 J.McB v. L.E (Case C-400/10 PPU) § 41; Rauscher/Rauscher (fn. 16), Art. 1 Brüssel IIa-VO note 27. 240 As well as not in connection with an abduction Rauscher (fn. 16), Art. 1 Brüssel II-VO, note 15. Cf. Art. 10 and 11. 241 J.McB v. L.E (Case C-400/10 PPU) § 40; OF v. PG, C-759, § 4. 242 Gogova v. Iliev (Case C- 215/15). Hereto Dutta, ZEuP 2016, 445; Koechel, FamRZ 2016, 438 et seq. 243 This includes that a person other than a parent can have parental responsibility. Cf. Art. 2 note 23 (Pintens).

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Art. 1 Brussels IIter Scope tion but as a matter of parental responsibility under the Brussel IIbis Regulation.244 Art. 16 Brussels IIter Regulation has reformed this matter.245 If the outcome of proceedings in a matter not falling within the scope of the Brussels IIter Regulation before a court of a Member State depends on the determination of an incidental question relating to parental responsibility, a court in that Member State may determine that question for the purposes of those proceedings even if that Member State does not have jurisdiction under the Brussels IIter Regulation. The determination of an incidental question only produces effects in the proceedings for which that determination was made (Art. 16 (2 Regulation IIter). Concerning succession matters Art. 16 (3) Regulation IIter specifies that if the validity of a legal act undertaken or to be undertaken on behalf of a child before a court of a Member State requires permission or approval by a court, a court in that Member State may decide whether to permit or approve such a legal act even if it does not have jurisdiction under the Brussels IIter Regulation. This means that the court has jurisdiction under Art. 4 ff. Succession Regulation has also jurisdiction to decide an incidental question of parental responsibility. (d) the placement of the child in a foster family or in institutional care.246 As only civil matters are included, the placement in an institution as a result of criminal offences committed by the child is excluded;247 (e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. Based on Recital (10), a distinction must 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 (10) states that only the first category of measures is covered by the Brussels IIter 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 Ibis Regulation.248 This distinction is rather peculiar since almost every measure concerning the child’s property will have a protective nature. From Recital (10) 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.249 It is for the court to assess, in the individual case, whether a measure concerns the protection of the child or not.250 84

Art. 1 (3) Regulation IIter clarifies the relationship between the Regulation and the 1980 Hague Convention. Chapter III on international child abduction and chapter IV on recognition and enforcement apply where the wrongful removal or retention of a child concerns more than one Member State. This rule complements the 1980 Hague Convention. Recital 5 explains that the concept ‘civil matters’ covers applications, measures all decisions as well as authentic instruments and certain extra-judicial agreements concerning the return of the child under the 1980 Hague Convention, which, according to the case law of the Court of Justice251 and in line with Art. 19 of the convention, not proceedings on the substance of parental responsibility but closely related to it and addressed by certain provisions of the Regulation.

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The rules of recognition and enforcement of chapter IV are extended to decisions ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which must be enforced in the Member State other than the Member State where the decision was given. This applies in cases of a further abduction after the return of the child was ordered.252

244 245 246 247 248 249 250 251 252

Matousˇková, Case C404/14. See also Saponaro, Case C-565/16. Hereto Dutta, ZEuP 2016, 443 et seq. See Musseva, Era Forum 2020, 134; Pintens, ZEuS 2021, 196; Schulz, FamRZ 2020, 1143. See note 15 supra. Cf. note 14 supra. Rauscher/Rauscher (fn. 16), Art. 1 Brüssel II-VO, note 33. See also Practice Guide, p. 20 et seq. Practice Guide, p. 20. Practice Guide, p. 21. Rinau, Case C-195/08 PPU. Recital 16.

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The list is not exhaustive but merely illustrative.253 Protective measures that restrict parental responsibility or discharge one from parental responsibility are not mentioned but must be included.254

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bb) Excluded matters Article 1 (4) 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. This matter is excluded as an issue of civil status. The exclusion applies also to the consent of the child or his representative to the establishment of the relationship because this is also a matter of status and not of parental responsibility; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption.255 This rule implies that placement of a child in a foster family, as a trial period for a later adoption, is excluded;256 (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.257 The representation of a child in a procedure for the determination or the modification of the child’s name is a matter of parental responsibility and falls under the Regulation.258 (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.259 They concern status and capacity. Consequently, they fall outside the scope of the Regulation;260 (e) maintenance obligations. They felt under the scope of the Brussels I Regulation and since 18 June 2011 under the Maintenance Regulation.261 (f) trusts or succession. Trusts fall within the ambit of Art. 7 (1) (6) Regulation Brussels Ibis, 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 constituted under the Regulation Brussels IIbis a measure relating to the exercise of parental responsibility.262 This was modified by Art. 16 Brussels IIter Regulation.263 (g) measures taken as a result of criminal offences committed by children. Recital 11 clarifies the distinction between civil law measures and measures taken as a result of criminal offences. Only the last category is excluded from the scope of the Regulation. This exclusion covers educational or punitive placement ordered or arranged following an act of the child which, if committed by an adult, could amount to a punishable act under national criminal law, regardless of whether in the particular case this would lead to a conviction.

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This list of exclusions is not exhaustive.264 From the scope and the aim of the Regulation, it can be 88 deduced that all matters of status are excluded.265 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.

253 254 255 256 257 258 259 260 261 262 263 264 265

Practice Guide, p. 19. Sumampouw in Bundel Joppe (2002), p. 201, 204 et seq. Hampshire County Council v. C.E. and N.E., Case C-325-18 PPU. Gitschthaler/Garber (fn. 4), Art. 1 n° 93. Pintens/Will in Int.Enc.Comp.L. V° Names, p. 51 et seq. Gitschthaler/Garber, Art. 1 n° 94. Practice Guide, p. 19. Comp. Gruber, IPRax 2005, 293, 296. OF v. PG, Case C-759/18, § 4. Cf. note 40 supra. Matousˇková (Case C-104/14). See Dutta, ZEuP 2016, 443 et seq. See Art. 16 note 24 et seq. (Pertegás Sender/Mankowski). Contra: Jault, Dr. & Patr. 2005/138, 58, 61. Recital (12).

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Art. 2 Brussels IIter Definitions

Article 2 Definitions 1. For the purposes of this Regulation ‘decision’ means a decision of a court of a Member State, including a decree, order or judgment, granting divorce, legal separation, or annulment of a marriage, or concerning matters of parental responsibility. For the purposes of Chapter IV, ‘decision’ includes: (a) a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which has to be enforced in a Member State other than the Member State where the decision was given; (b) provisional, including protective, measures ordered by a court which by virtue of this Regulation has jurisdiction as to the substance of the matter or measures ordered in accordance with Article 27(5) in conjunction with Article 15; For the purposes of Chapter IV, ‘decision’ does not include provisional, including protective, measures ordered by such a court without the respondent being summoned to appear, unless the decision containing the measure is served on the respondent prior to enforcement. 2. For the purposes of this Regulation the following definitions also apply: (1) ‘court’ means any authority in any Member State with jurisdiction in the matters falling within the scope of this Regulation; (2) ‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in any Member State in the matters falling within the scope of this Regulation and the authenticity of which: (a) relates to the signature and the content of the instrument; and (b) has been established by a public authority or other authority empowered for that purpose. The Member States shall communicate those authorities to the Commission in accordance with Article 103; (3) ‘agreement’ means, for the purposes of Chapter IV, a document which is not an authentic instrument, has been concluded by the parties in the matters falling within the scope of this Regulation and has been registered by a public authority as communicated to the Commission by a Member State in accordance with Article 103 for that purpose; (4) ‘Member State of origin’ means the Member State in which the decision has been given, the authentic instrument has been formally drawn up or registered, or the agreement has been registered; (5) ‘Member State of enforcement’ means the Member State in which enforcement of the decision, authentic instrument or agreement is sought; (6) ‘child’ means any person below the age of 18 years; (7) ‘parental responsibility’ means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by decision, by operation of law or by an agreement having legal effect, including rights of custody and rights of access; (8) ‘holder of parental responsibility’ means any person, institution or other body having parental responsibility for a child; (9) ‘rights of custody’ includes rights and duties relating to the care of the person of a child and in particular the right to determine the place of residence of a child; (10) ‘rights of access’ meansrights of access to a child, including the right to take a child to a place other than his or her habitual residence for a limited period of time; (11) ‘wrongful removal or retention’ means the removal or retention of a child where: (a) such removal or retention is in breach of rights of custody acquired by decision, 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

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(b) 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. 3. For the purposes of Articles 3, 6, 10, 12, 13, 51, 59, 75, 94 and 102 the concept of ‘domicile’ replaces the concept of ‘nationality’ for Ireland and the United Kingdom, and it has the same meaning as under each of the legal systems of those Member States. I. General purpose . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . 1. Decision . . . . . . . . . . . . . . . . . . . a) The term ‘decision’ . . . . . . . . . . . b) Decision attributing a new civil status aa) Divorce, legal separation and annulment . . . . . . . . . . . . . bb) Parental responsibility . . . . . . 2. Court . . . . . . . . . . . . . . . . . . . . . 3. Authentic instrument . . . . . . . . . . . 4. Agreement . . . . . . . . . . . . . . . . . .

1

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. 5 . 5 . 6 . 13

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14 15 16 18 21

5. 6. 7. 8. 9. 10. 11. 12. 13.

Member State of origin . . . . . . Member State of enforcement . . Child . . . . . . . . . . . . . . . . . Parental responsibility . . . . . . Holder of parental responsibility Rights of custody . . . . . . . . . . Rights of access . . . . . . . . . . . Wrongful removal or retention . Domicile . . . . . . . . . . . . . . .

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23 24 25 26 29 32 33 37 40

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); Musseva, The recast of the Brussels IIa Regulation: the sweat and sour fruits of unanimity, ERA Forum 2020, 129 et seq.; Rauscher in 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.

I. General purpose Art. 2 Brussels IIter Regulation follows the example of the Brussels IIbis Regulation and contains a 1 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 Arts. themselves. 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 ‘decision’, ‘court’, ‘authentic instrument’, ‘agreement’ and ‘Member State- of origin’. Other general terms, for example ‘habitual residence’ are missing.2 Further, the list of definitions only focuses on parental responsibility and does not contain a part on matrimonial proceedings. A definition of ‘marriage’ is missing.3 Here interpretation will be necessary.4

2

The definitions clarify the Arts. of the Regulation and should always be read together, e.g., the mean- 3 ing of ‘decision’ in Arts. 30 et seq. Regulation IIter should be understood in combination with Art. 2 (1) Regulation IIter. Only then one can argue that decisions denying a divorce claim are not recognised. The Regulation Brussels IIter introduces some clarifications and linguistic adaptions. Further a new definition of the child is included.5 1 Spellenberg, Einl zur Art. 1 Brüssel IIa-VO note 58 and Art. 2 note 2. See also Musseva, ERA Forum 2020, 131 et seq.; 2 Hereto Richez-Pons, Dr. & Patr. 2005/138, 53 et seq. Cf. Art. 3 notes 32–38 (Ní Shúilleabháin). 3 See Art. 1 note 20 et seq. (Pintens). 4 Cf. Art. 1 note 21 et seq. (Pintens). 5 See Art. 1 note 65 (Pintens).

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4

Art. 2 Brussels IIter Definitions

II. Definitions 1. Decision 5

Art. 2 (1) gives a definition of ‘decision’ instead of a definition of ‘judgment’ as in the Brussels IIbis Regulation. The use of the term ‘decision’ instead of ‘judgment’ is in line with the terminology used in Art. 2 of the Brussels Ibis Regulation and in Art. 3 (1) (g) of the Succession Regulation. a) The term ‘decision’

6

The term ‘decision’ must be interpreted broadly and includes for example a decree, order or judgment, whether they are decisions on the substance or provisional ones and whatever the competent authority may be.6

7

The term ‘decision’ covers a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility. For the purposes of Chapter IV on recognition and enforcement, ‘decision’ includes also: (a) a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which has to be enforced in a Member State other than the Member State where the decision was given; (b) provisional, including protective, measures ordered by a court which by virtue of this Regulation has jurisdiction as to the substance of the matter or measures ordered in accordance with Art. 27(5) Regulation IIter in conjunction with Art. 15 Regulation IIter. For the purposes of Chapter IV, the Regulation has built in a guarantee. Here ‘decision’ does not include provisional, including protective, measures ordered by a court without the respondent being summoned to appear, unless the decision containing the measure is served on the respondent prior to enforcement (Art. 2 (1) Regulation IIter).

8

The scope of the Regulation is restricted to decisions of a court of a Member State. Otherwise as in in the Brussels II bis Regulation the list of definitions does not contain a definition of Member State. The Regulation applies in all Member States, except for Denmark, and determines the territorial scope of the Regulation. Denmark and Ireland are not participating in Community action under Art. 67 et seq. TFEU but Ireland reserved an opt-in possibility and made use of it.7 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.

9

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.8

10

Finland and Sweden made use of the option of Art. 94 (2) Regulation IIter and declared that the Convention 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.

11

The decision must have 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.9 If there is no application for registration within six months from the date when the judgment became final (and

6 Art. 2 para. 1. See Art. 1 note 4 et seq. (Pintens). For provisional orders cf. Art. 15 and for orders as to costs cf. Art. 73. 7 Recital 30; Art. 1–3 Protocol on the position of the United Kingdom and Ireland annexed to the Treaty of Amsterdam. 8 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. 9 Borrás Report para. 60.

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not from the date of the entry of judgment, as the Borrás Report wrongly states),10 the judgment has no res judicata effect (Art. 163 Dutch CC). The res judicata effectivity of a decision must be distinguished from the legal force of a decision, i.e. the question of whether the judgment is final or still appealable.

12

b) Decision attributing a new civil status The Regulation applies in principle only to decisions attributing a new legal status.11

13

aa) Divorce, legal separation and annulment The Regulation only applies to positive decisions.12 Art. 2 (1) Regulation IIter includes only decisions ‘granting’ divorce, legal separation or annulment of a marriage.

14

bb) Parental responsibility Decisions on parental responsibility must be treated differently. The definition in Art. 2 (1) Regulation IIter specifies ‘decisions concerning matters of parental responsibility’ and, therefore, includes positive as well as negative decisions.13 Furthermore, a judgment that is negative for one party is positive for the other one.14 This means that a judgment denying, for example, custody or access must be recognised.

15

2. Court The term ‘court’ covers all authorities in the Member States with jurisdiction in matters falling within 16 the scope of the Regulation, pursuant to Art. 1 (Art. 2 (2) n° 1 Regulation IIter). This definition implies that the term ‘court’ must be understood as all authorities, judicial or otherwise, with jurisdiction in matrimonial matters and matters of parental responsibility in the Member States.15 The same rule can be found in Art. 1 of the 1970 Hague Convention on the recognition of divorces and legal separations. The term ‘judge’ is not defined any more but is implied in the definition of ‘court’. Decisions of a court are not only decisions by a judge but also by any other official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation. This means that the term ‘court’ 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.16

17

3. Authentic instrument The definition of ‘authentic instrument’ is new, but the concept was already covered by Chapter III 18 of the Brussels IIbis Regulation. An authentic instrument is defined as a document falling in the scope of the Regulation, which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin (Art. 2 (2) n°2 Regulation IIter). This definition

10 11 12 13 14

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. 15 Cf. Art. 1 note 4 et seq. (Pintens). 16 Cf. Art. 1 note 4 et seq. (Pintens).

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Art. 2 Brussels IIter Definitions is largely inspired by Art. 2 lit. c. Brussels Ibis Regulation,17 Art. 3 Succession Regulation and the Unibank judgment.18 In this judgement, the European Court of Justice had to answer the question whether an enforceable acknowledgement of indebtedness, which has been drawn up without the involvement of a public authority, constituted an authentic instrument within the meaning of Art. 50 of the Brussels Convention. Art. 50 qualifies a document, which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State as enforceable in another Contracting State. The court decided that since instruments drawn up between private parties are not inherently authentic, the involvement of a public authority or any other authority empowered for that purpose by the State of origin is needed in order to endow them with the character of authentic instruments.19 The Court referred to the Jenard-Möller Report on the Lugano Convention mentioning three conditions, which have to be fulfilled by authentic instruments in order to be regarded as authentic within the meaning of art. 50 of the Lugano Convention: the authenticity of the instrument should have been established by a public authority; this authenticity should relate to the content of the instrument and not only, for example, to the signature; and the instrument has to be enforceable in itself in the State in which it originates.20 Those three conditions have been integrated in the definition.21 19

Although the concept of authenticity must be interpreted autonomously like any other definition in the Regulation, the wording of the definition indicates that the Latin notary system as used in the Germanic and Romanic legal family clearly has been the inspiration, just as it had been in the Unibank decision. Recital 15 indicates that the interpretation of the concept should be in accordance with the definition used horizontally in other Union instruments. Although recital 62 of the Succession Regulation recalls that the ‘authenticity’ of an authentic instrument should be an autonomous concept, it underlines that elements such as the genuineness of the instrument, the formal prerequisites of the instrument, the powers of the authority drawing up the instrument and the procedure under which the instrument is drawn up are essential. It should also cover the factual elements recorded in the authentic instrument by the authority concerned, such as the fact that the parties indicated appeared before that authority on the date indicated and that they made the declarations indicated. Here one can clearly see that the substantive law of the various systems in the Germanic and Romanic legal family has had a strong influence and that this minimum standard is a result of national substantive rules for establishing authentic instruments.22 The definition of authenticity implies that the conditions for authenticity are established in the state of origin, but that they have to be combined with the minimum standard of art. 2 (2) n° 2 Regulation IIter).

20

Authentic instruments having binding legal effect in one Member State must be treated as equivalent to decisions for the purpose of the application of the rules on recognition and enforcement.23 Important examples are certain divorces by notaries and civil-status registrars.24 4. Agreement

21

The Regulation introduces with the definition of agreement a concept that covers a document which is not an authentic document but has been concluded by the parties falling within the scope of the Regulation and has been registered by a public authority.25 Those agreements should circulate.26 The

17 See already Art. 50 Brussels Convention and Art. 50 Brussels I Regulation. 18 Unibank A v. S and Flemming G. Christensen (CaseC-260/97). See Pintens, in Scherpe/Bargelli (ed.), The Interaction between Family Law, Succession Law and Private International Law (2021), p. 128 et seq. 19 Unibank, § 15. 20 Jenard/Möller Report, OJ 1990 C 189, § 72. The wording of art. 50 of the Lugano Convention is almost identical with the wording of art. 50 of the Brussels Convention. 21 See Pintens, in Scherpe/Bargelli (fn. 19), p. 129. 22 See Pintens in Scherpe/Bargelli (fn. 19), p. 130. 23 See Art. 65 and Recital 70. 24 See Art. 1 note 5 (Pintens). 25 The Member States have to communicate those public authorities to the Commission in accordance with Art. 103. Recital 14 mentions notaries, even if they are exercising a liberal profession. 26 Recital 14.

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definition does not cover mere private agreements. Their free circulation is not covered by the Regulation.27 Agreements having binding legal effect in one Member State must be treated as equivalent to decisions for the purpose of the application of the rules on recognition and enforcement.28 Important examples are certain agreements concerning parental responsibility.29

22

5. Member State of origin The term ‘Member State of origin’ means the Member State where the decision to be enforced was issued (Art. 2 (2) n°4 Regulation IIter). The term ‘Member State of origin’ is used so that the Regulation reads more easily.30

23

6. Member State of enforcement The term ‘Member State of enforcement’ means the Member State where enforcement of the decision is sought (Art. 2 (2) n° 5 Regulation IIter). The term ‘Member State of enforcement’ is used so that the Regulation reads more easily.31

24

7. Child The definition of a child is restricted to the determination of his age. Therefore, a child is defined as any person below the age of 18 years (Art. 2 (2) n°6 Regulation IIter).32

25

8. Parental responsibility The term ‘parental responsibility’ means all rights and duties relating to the person or the property 26 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 (2) n° 7 Regulation IIter).33 The concept of parental responsibility has been given a broad definition including all rights and duties of any person having such a responsibility.34 Those rights are described in Art. 2 (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 2002.35 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”.36 The definition emphasises that both a natural and a legal person can be holder of parental responsi- 27 bility.37

27 28 29 30 31 32 33 34 35 36

Recital 14. See Art. 65 and Recital 70. See Art. 1 note 6 (Pintens). COM (2002) 222 final/2, p. 7. COM (2002) 222 final/2, p. 7. See Art. 1 note 65 (Pintens). OF v. PG, Case C-759/18, § 4. 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 Boele-Woelki/Ferrand/ Gonzàlez Beilfuss/Jänterä-Jareborg/Lowe/Martiny/Pintens, Principles of European Family Law Regarding Parental Responsibilities (2007), p. 25 et seq. 37 Cf. Art. 1 note 70 (Pintens).

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The use of a new concept with a broad definition confirms that an autonomous interpretation of the concept of ‘parental responsibility’ should be applied.38 9. Holder of parental responsibility

29

The term ‘holder of parental responsibility’ means any person having parental responsibility over a child (Art. 2 (2) n° 8 Regulation IIter). The term ‘holder of parental responsibility’ is used so that the Regulation reads more easily.39

30

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 because 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.40 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.41 Under Austrian law, a stepparent can be considered a foster parent and may obtain a transfer of parental responsibility by court order.42 Under the English Children Act 1989, a stepparent43 can acquire parental responsibility by residence order. Under the English Adoption and Children Act 2002 a stepparent who is married44 to the child’s parent will be able to obtain parental responsibility by agreement or by a court order.45 National law defines the holder of parental responsibility.46

31

Furthermore, any person who has duties and rights vis-à-vis a child can qualify as a 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.47 10. Rights of custody

32

The term ‘rights of custody’ includes 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 (Art. 2 (2) n°9 Regulation IIter).48 The rights of custody are defined in the same way as in Art. 3 of the 1996 Hague Convention on the protection of children. 11. Rights of access

33

The term ‘rights of access’ includes in particular the right to take a child to a place other than his or her habitual residence for a limited period of time (Art. 2 (2) n°10 Regulation IIter). 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,49 use the term ‘contact’ and by so doing strengthen the fact that the child is also a 38 Long, Familia 2006, 1127, 1146. Cf. Art. 1 note 59 (Pintens). 39 COM (2002) 222 final/2, p. 7. 40 Boele-Woelki in Boele-Woelki (ed.), Common Core and Better Law in European Family Law (2005), p. 141, 153 et seq. 41 Art. 1:253 Dutch CC. See Boele-Woelki/Schrama/Vonk, Dutch report, in Boele-Woelki/Braat/Curry-Sumner (ed.) European Family Law in Action, III, Parental Responsibilities, in EFL-series, n° 9 (2005), Question 27. 42 Art. 186a Austrian CC. See Roth, Austrian report, in Boele-Woelki et al. (fn. 26), Question 27. 43 Married or not to the parent. 44 Cohabitation is insufficient. 45 Amendment to the Children Act 1989. See Lowe, English report, in Boele-Woelki et al. (fn. 51), Question 27. 46 J.McB. v. L.E. (Case C-400/10 PPU) § 43. 47 Francq, Rev.trim.dr.fam. 2005, 691; Jault, Dr. & Patr. 2005/138, 58, 62. 48 OF v. PG, Case C-759/18, § 4. 49 ETS N°. 19/2 (2).

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holder of certain rights of contact with holders of parental responsibility.50 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 on the 34 protection of children. However, the concept is much broader and includes, for example, contact by telephone or e-mail.51 Contrary to ‘parental responsibility’, where the holder is defined, there is no definition of the ‘holder 35 of rights of access’. Under Brussels II, a restricted interpretation was favored. 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.52 Since the Brussels IIbis and ter Regulations have 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.53 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 Art. leaves it to the State to extend this provision to persons other than those mentioned in (1). This interpretation has been confirmed by the ECJ in the Valcheva case. The Court underlined that the Brussels II bis Regulation (but this applies also to the Regulation IIter) contemplated all decisions concerning parental responsibility and therefore also concerning rights of access, irrespective of the persons who may exercise those rights and without excluding grandparents.54 The Court underlined that, if rights of access did not concern all of those persons, questions relating to those rights could be determined not only by the court designated by the Regulation but also by other courts which might consider themselves to have jurisdiction on the basis on their national law. This could lead to conflicting or even irreconcilable decisions. Consequently, it is in the best interests of the child, that the same court, i.e. the court of the child’s habitual residence, should rule on rights of access.55

36

12. Wrongful removal or retention The definition copies the one for child abduction found in Art. 3 of the 1980 Hague Convention on 37 Child Abduction.56 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,57 or would have been so exercised but for the removal or retention (Art. 2 (2) n° 11 Regulation IIter). The definition of the 50 Explanatory Report, no. 6. 51 Practice Guide, p. 43. 52 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. 53 ECHR 13 July 2000 (Scozari and Giunta v. Italy), Series A, no. 221. 54 Valcheva v. Babanarakis (Case C-335/17), § 31–32. 55 Valcheva v. Babanarakis (Case C-335/17), § 35–36. 56 See C. v. M. (Case C-376/14 PPU) § 46; J.McB. v. L.E. (Case C-410/10 PPU. See Kohler/Pintens, FamRZ 2015, 1453 et seq. 57 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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Art. 3 Brussels IIter General jurisdiction Brussels IIbis specified 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. Therefore, the Brussels IIter Regulation strikes it. 38

The situation in which one parent, without the consent of the other parent, is led to take his or her child from his or her Member State of habitual residence to another Member State in application of a transfer decision, made by the former Member State on the basis of Regulation (EU) No 604/2013 (Dublin III) of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, and then to remain in the latter Member State after that transfer decision has been annulled without the authorities of the former Member State deciding to take back the persons transferred or to grant them residence, cannot constitute a wrongful removal or retention within the meaning of that provision.58

39

The definition has to be read in conjunction with Arts. 9, 22, 27 and 29 Regulation Brussels IIter. 13. Domicile

40

Para. 3 stipulates that the concept of ‘domicile’ replaces the concept of ‘nationality’ for Ireland and the United Kingdom. Due to Brexit the reference to the United Kingdom is obsolete. The Brussels IIter Regulation is not applicable in the United Kingdom. The Brussels IIbis Regulation is only applicable on cases introduced before 1 January 2021.59

41

‘Domicile’ is not defined, but left to national law. Domicile shall have the same meaning as it has under the legal system of Ireland.

Chapter II Jurisdiction in Matrimonial Matters and in Matters of Parental Responsibility (Art. 3–Art. 21) Section 1 Divorce, legal separation and marriage annulment (Art. 3–Art. 6)

Article 3 General jurisdiction In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State: (a) in whose territory: (i) the spouses are habitually resident, (ii) the spouses were last habitually resident, insofar as one of them still resides there, (iii) the respondent is habitually resident, (iv) in the event of a joint application, either of the spouses is habitually resident, (v) the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or 58 A v. B Case (Case C-262/21 PPU), FamRZ 2021, 1475, note Schulz. See Kohler/Pintens, FamRZ 2022, 1415. 59 See Wagner, IPRax 2021, 5 et seq., 10 et seq.

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(vi) the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question; or (b) of the nationality of both spouses. I. Preliminary remarks . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . .

5

III. Scope of application . . . . . . . . . . . . . . 9 IV. Time of assessment . . . . . . . . . . . . . . . 18 V. Seven grounds for jurisdiction . . . . . . . . 19

VI. 1. 2. 3.

Connecting factors used in Art. 3 Habitual residence . . . . . . . . . . Nationality . . . . . . . . . . . . . . Domicile . . . . . . . . . . . . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

32 32 39 43

VII. Conclusion . . . . . . . . . . . . . . . . . . . . 44

Bibliography: Boele-Woelki/González Beilfuss (eds.), Brussels II bis: Its Impact and Application in the Member States (2007); Borrás, Grounds of Jurisdiction in Matrimonial Matters: Recasting the Brussels IIa Regulation, [2015] (1) NIPR 3; de Boer, Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation (2002) 49 NILR 307; Großerichter, Jurisdiction: Section 1: Divorce, Legal Separation and Marriage Annulment, in: Althammer (ed.), Brussels IIa: Rome III (2019), p. 31; Hausmann, New International Procedure Law in Matrimonial Matters in the European Union [2000/01] (4) EuLF 271; Hausmann, Jurisdiction, in: Corneloup (ed.), Droit Européen du Divorce/European Divorce Law (2013), p. 235; Hodson, What is Jurisdiction for Divorce in the EU? The Contradictory Law and Practice Around Europe [2014] International Family Law 170; Kruger/Samyn, Brussels II bis: Successes and Suggested Improvements, (2016) 12 J.PIL 132; Kruger, Habitual Residence: The Factors that Courts Consider, in: Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 741; Kruger, Finding a Habitual Residence, in: Viarengo/Villata (eds.), Planning the Future of Cross-Border Families: A Path Through Coordination (2020), p. 117; Limante, Establishing Habitual Residence of Adults under the Brussels IIa Regulation: Best Practices from National Case-Law (2018) 14 J.PIL 160; McEleavy, The Communitarization of Divorce Rules: What Impact for English and Scottish Law? (2004), p. 53 ICLQ 605; Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010); Ní Shúilleabháin, Ten Years of European Family Law: Retrospective Reflections from a Common Law Perspective (2010) 59 ICLQ 1021; Reddin, An Unhappy Marriage: The EU and the Divorce Jurisdiction System under Brussels II Bis (2020) 20 University College Dublin Law Review 39; Ricci, Jurisdiction in Matrimonial Matters, in: Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of the Brussels IIa Regulation in National Courts (2018), p. 39; Sellens/Alonso/Siaplaouras, Jurisdiction, in: Viarengo/Villata (eds.), Planning the Future of Cross-Border Families: A Path Through Coordination (2020), p. 163; Schack, The New International Procedure in Matrimonial Matters in Europe, (2002) 4 Eur. J. L. Reform 37; Trimmings, Matrimonial Matters under the Brussels IIa Regulation, in: Beaumont/Danov/Trimmings/Yüksel (eds.), CrossBorder Litigation in Europe (2017), p. 803.

I. Preliminary remarks Art. 3 Brussels IIter harmonises the grounds for jurisdiction in divorce (and separation and annul- 1 ment) across the EU. This harmonisation of jurisdiction was intended to allow for “rapid and automatic recognition” of divorce judgments between Member States.1 However, insofar as these harmonised jurisdiction grounds are closely aligned to the recognition criteria laid down in the 1970 Hague Convention on Recognition of Divorces and Legal Separations, Member State divorces are also likely to enjoy international recognition in third countries which are party to the 1970 Convention or which have adopted its recognition norms.2 In addition to facilitating divorce recognition, the uni-

1 Recital (4) of the Brussels II Regulation. 2 Franzina, in Franzina (ed.), The External Dimension of EU Private International Law After Opinion 1/13 (2017) 197-8; also Baker/Groff, in Scherpe (ed.), European Family Law, Volume 1, The Impact of Institutions and Organisations on European Family Law (2016) 189. The 1970 Hague Convention is in force in a number of third countries including the United Kingdom, Egypt, Australia, Denmark and Switzerland. The planned circulation of a questionnaire on its operation may generate further interest: see HCCH CGAP, Conclusions and Decisions, March 2021, para. 33 accessible at https://assets.hcch.net/docs/94e2d886-1cbf-4250-b4365c1899cb942b.pdf.

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Art. 3 Brussels IIter General jurisdiction formity of divorce jurisdiction brings increased transparency and predictability: a lawyer in any one Member State can advise as to grounds for divorce jurisdiction in all other Member States.3 2

There are additional grounds for divorce jurisdiction laid down in Arts. 4, 5 and 6 Brussels IIter but these are narrowly circumscribed, and Art. 3 Brussels IIter is by far the most important jurisdictional provision.

3

Art. 3 jurisdiction depends primarily on habitual residence, but also secondarily on nationality (and in the case of Ireland, common law domicile4). Objective considerations of proximity are therefore to the fore,5 and there is no provision for jurisdiction by appearance or for jurisdiction by party agreement only.6 It would be a mistake, however, to assume that there is no scope for party autonomy and that the most proximate forum will prevail: in fact, Art. 3 offers a choice of 7 alternative jurisdictional grounds,7 facilitating unilateral (if not bilateral) choice and empowering the applicant to proceed in a competent court which may not be in the most closely connected forum.8

4

Art. 3 Brussels IIter allocates international jurisdiction to Member States but does not determine the internal distribution of competence within the Member State.9 The identification of the local venue and competent authority within the Member State is a matter for the lex fori.10

II. Legislative history 5

The text of Art. 3 Brussels IIter derives from Art. 2 of the Brussels II Convention, agreed in 1998.11 Art. 2 of the Brussels II Convention was incorporated into Art. 2 of the Brussels II Regulation, which in turn was replicated in Art. 3 Brussels IIbis, and now in Art. 3 Brussels IIter. The substance of the provision has remained virtually unaltered since 1998. While Art. 3 Brussels IIter no longer refers directly to the substitution of “domicile” for “nationality” where Ireland is concerned (as all previous iterations did), this substitution remains in effect pursuant to Art. 2(3) Brussels IIter. The previous iterations also included an “or” after each of the first five indents (in what is now Art. 3(a) Brussels IIter, formerly Art. 3(1)(a) Brussels IIbis/Art. 2(1)(a) Brussels II Regulation/Convention), while the most recent text in Brussels IIter incorporates an “or” only after the fifth and sixth indents. This does not alter the meaning of the text – although the additional “or” after the sixth indent serves to emphasise that Art. 3(a) and 3(b) Brussels IIter are not cumulative requirements. This was already widely understood to be the case12 but at least one national court had insisted on compliance with Art. 3(1)(a)

3 Grigiene˙, (2009) 2(1) Baltic Journal of Law & Politics 97, 101. 4 See Art. 2(3) Brussels IIter. 5 See Ricci, in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of the Brussels IIa Regulation in National Courts (2018) 40–41; Hausmann, in Corneloup (ed.), Droit Européen du Divorce/European Divorce Law (2013) 238. 6 Ricci (fn. 5), pp. 41–43; Hausmann (fn. 5), p. 238; Kruger/Samyn, (2016) 12 J.PIL 132, 141–143; European Commission, Impact Assessment Accompanying the Document 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), SWD (2016) 207 final, 13; Hausmann, [2000/01] (4) EuLF 271, 275. 7 See Report Borrás, para. 6 noting that “there is no general forum” and “the absence of any hierarchy” (also Report Borrás, para. 28). 8 Acknowledged by the CJEU in Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08) (2009) ECR I-6871, para. 57. 9 Report Borrás, para. 16; Hausmann (fn. 6), p. 276. 10 Ricci (fn. 5), p. 41; Hausmann (fn. 5), pp. 237–8; Großerichter, in Althammer (ed.), Brussels IIa: Rome III (2019) 36; Asser Institute, Regulation Brussels IIbis: Guide for Application (2018), p. 50 accessible at https:// www.asser.nl. 11 Borrás, [2015] 1 NIPR 3. 12 Report Borrás, paras. 28, 33; Hadadi (fn. 8), para. 48. The adequacy of jurisdiction under Art. 3(1)(b) Brussels IIbis – taken in isolation – was specifically confirmed by the CJEU shortly after the adoption of Brussels IIter in O.F. v P.G. (Case C-759/18) ECLI:EU:C:2019:816 paras. 27–30.

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and (b)13 in applying Brussels IIbis, and so the additional “or” in the new text will assist in dispelling any such misunderstanding. There are two further textual changes worth noting: first, the numbering of the indents to Art. 3(a) in Brussels IIter (previously these were not numbered) – and second, the change in the title to the provision. Originally the title was “divorce, legal separation and marriage annulment”, but now (since Regulation Brussels IIbis) it is “general jurisdiction” (against the backdrop of a section heading entitled “divorce, legal separation and marriage annulment”). Again this is a linguistic change which merely affirmed what was already well-understood. Back in 2006, the European Commission had proposed that Art. 3 Brussels IIbis should be supplemented with a new Art. 3a allowing for choice of court agreements,14 but this proposed amendment was abandoned due to opposition to the choice of law provisions included in the same proposal.15 In 2014, the European Commission once again raised the prospect of adding a choice of court provision, and also acknowledged (in reference to Art. 3) that “the alterative (rather than hierarchical) grounds of jurisdiction … in conjunction with the absence of harmonised conflict-of-law rules in the entire Union may induce a spouse to ‘rush to court’”.16

6

This determination to “improve”17 Art. 3 Brussels IIbis had faded by 2016, however. When the recast 7 proposal was published,18 the Commission declared that “the existing rules have proven to work to a large extent satisfactorily”,19 and that there was no plan to amend Art. 3. The Commission also cited concerns of “political feasibility” in view of Member States disagreeing on the scope of “matrimonial matters” and its inclusion of same-sex marriage,20 and it was widely understood that this was the main reason for the Commission’s inaction on matrimonial matters.21 Of course, in the end, Brussels IIter did include some matrimonial reforms (the accommodation of private divorces, Arts. 64–68 Brussels IIter), raising the question as to whether, perhaps, the amendment of Art. 3 might also have been politically feasible after all. In conclusion, the survival of the original text is not indicative of any general sense of satisfaction with the operation of Art. 3. On the contrary, there is broad agreement that Art. 3 requires amendment (or supplementation) to accommodate choice-of-court agreements and to curb the risk of “rush to court”.22

13 Trimmings in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017) 805–6, and Archontaki/Simsive in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017) 322 referring to a judgment of a court in Thessaloniki, Greece (cited as FIC Case No 1226/2014). 14 COM (2006) 399 final. 15 Impact Assessment (fn. 6), p. 8; European Commission, 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 judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 COM (2014) 225 final, p. 3; also Boele-Woelki, (2008) 39 Victoria University of Wellington Law Review 779, 784. 16 European Commission Report (fn. 15), p. 5. By this time, the Rome III Regulation had been adopted by enhanced cooperation but it only applied in 16 (now 17) Member States: Council Regulation (EU) No. 1259/ 2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation OJ 2010 L343/10. 17 European Commission Report (fn. 15), p. 6. 18 COM (2016) 411 final. 19 Impact Assessment (fn. 6), p. 23. 20 Impact Assessment (fn. 6), pp. 19–23. 21 Honorati, [2017] International Family Law 97, 98; Kruger [2017], 3 NIPR 462, 466-7; Corneloup/Kruger, RCDIP 2020, 215, 219, 241. 22 See eg Borg-Barthet, Jurisdiction in Matrimonial Matters- Reflections for the Review of the Brussels IIa Regulation; Study for the Juri Committee of the European Parliament (2016); Asser Institute, Recommendations to Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union (2018), p. 54 ff. accessible at https://www.asser.nl; also 2019 GEDIP Proposal for a Regulation on jurisdiction, applicable law and recognition of judgments and decrees with regard to divorce and legal separation accessible at www.gedip-egpil.eu/reunionstravail/2019_Katowice/di vorce/DIV-Txt-ENG-27.11.2019.pdf.

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8

Art. 3 Brussels IIter General jurisdiction

III. Scope of application 9

The invocation of general jurisdiction under Art. 3 Brussels IIter does not depend on the location of the defendant/respondent (in contrast to the situation under the Brussels I Recast Regulation23). There have been occasional suggestions, owing the language of Art. 6 Brussels IIbis,24 that Art. 3 could be disapplied where the respondent was neither an EU national nor habitually resident in a Member State.25 However, this proposition has been firmly rejected by the CJEU in the Sundelind Lopez case and it is now clear that Art. 3 Brussels IIter is applicable wherever its own jurisdictional criteria are satisfied – and that there is no pre-condition related to the respondent’s personal connections.26 The CJEU also confirmed that Member States are not at liberty to apply their own domestic jurisdictional rules where Art. 3 confers jurisdiction within the EU.27

10

Although Art. 3 Brussels IIter confers jurisdiction in divorce, separation and annulment matters only, and questions of entitlement to maintenance or matrimonial property fall outside of the scope of Brussels IIter,28 it is important to recognise that the Maintenance29 and Matrimonial Property30 Regulations – and various national laws31 – may confer accessory jurisdiction on the court with divorce jurisdiction under Art. 3 Brussels IIter. Thus, in practice, Art. 3 Brussels IIter may often – indirectly – confer jurisdiction to resolve a property or maintenance dispute between the spouses. Under the Maintenance Regulation any of the Art. 3 Brussels IIter grounds may confer accessory jurisdiction in spousal maintenance;32 however, under the Matrimonial Property Regulation only certain grounds will do so automatically.33 The fifth and sixth indents (discussed below) will not confer accessory jurisdiction in matrimonial property matters in the absence of party agreement.34 Incidentally, the CJEU has ruled that these same two indents (which refer to “applicant” connections, as opposed to spousal connections) are inapplicable where a third party applies for an annulment.35 Thus, the material scope of Art. 3 Brussels IIter is rather more nuanced than might initially appear – and while Art. 3 is in principle non-hierarchical, in practice certain “indents” or jurisdictional bases are more powerful and have a wider scope of application than others.

11

Art. 3 Brussels IIter prescribes that “jurisdiction shall lie” with the “courts of the Member State” which satisfies an Art. 3 criterion. This peremptory language suggests an obligation to exercise jurisdiction where it is established, and indeed the orthodox view is that the court seised must examine its jurisdiction of its own motion,36 and accept jurisdiction where it is competent under Art. 337 (unless another competent Member State court was first seised38). Equally, where it is apparent that an23 See Art. 6 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ 2012 L351/1. 24 Now Art. 6(2) Brussels IIter. 25 See the argument made on behalf of the wife in Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizaro (Case C-68/07) (2007) ECR I-10403, para. 13; also Ricci (fn. 5), p. 56; Camara in Beaumont/Danov/Trimmings/Yüksel (fn. 13), p. 378; EUFAMS II Consortium, Comparative Report on National Case Law, 11 February 2020, p. 47 accessible at www2.ipr.uni-heidelberg.de/eufams/index.php?site=projektberichte. 26 Sundelind Lopez (fn. 25), paras. 24, 28. 27 Sundelind Lopez (fn. 25), para. 20. 28 Recital (9) and Art. 1(4)(e) Brussels IIter. 29 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 2009 L7/1. 30 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 2016 L183/1. 31 In those Member States which are not participating in the Matrimonial Property Regulation: eg Ireland pursuant to Part III of the Family Law (Divorce) Act 1996. 32 Art. 3(c) Regulation 4/2009. 33 Art. 5 Regulation 2016/1103. 34 Art. 5(2)(a) and (b) Regulation 2016/1103. 35 Edyta Mikołajczyk v. Marie Louise Czarnecka, Stefan Czarnecki (Case C-294/15) ECLI:EU:C:2016:772. 36 Hausmann (fn. 5), p. 237; Kruger/Samyn (fn. 6), p. 141. 37 Hausmann (fn. 5), p. 240; Großerichter (fn. 10), p. 36. 38 See Art. 20 Brussels IIter discussed below.

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other Member State has Art. 3 jurisdiction, and the court seised does not,39 that court must immediately decline to hear the divorce application.40 While it is therefore tolerably clear that the court with Art. 3 Brussels IIter jurisdiction must, in prin- 12 ciple, be willing to exercise that jurisdiction (subject to lis pendens under Art. 20 Brussels IIter), there is some uncertainty as to the level of jurisdictional scrutiny required – and as to the implications of subject-matter jurisdiction and of a prior proceeding in a third country. As discussed in relation to Art. 18 Brussels IIter below, questions of proof are a matter for the lex fori,41 and so, in practice, national courts may accept party assertions at face value unless an allegation of habitual residence (or nationality or domicile) is contested. In some Member States, assertions of habitual residence are not routinely verified prior to accepting jurisdiction42 – and, as a consequence, there may be a de facto jurisdiction by appearance43 even if formally this is rejected as a basis of jurisdiction under Art. 3 Brussels IIter.44 Local methods differ, however, with some state authorities insisting on independent verification45 and so the scope for collaborative manipulation of Art. 3 Brussels IIter is variable. Also, a fabricated habitual residence may result in a subsequent retraction of the divorce decree where the falsehood is belatedly discovered.46

13

Art. 3 Brussels IIter refers to “courts” but it is clear from the wording of Art. 64 Brussels IIter that the 14 same jurisdictional criteria are, in principle, applicable to extra-judicial divorces by authentic instrument or registered agreement. It seems, however, that the process for jurisdictional examination is somewhat different in this domain: Art. 66 Brussels IIter envisages ex post facto verification of compliance with Art. 3 Brussels IIter as a pre-condition of certification for the purposes of cross-border recognition – and Arts. 68 and 69 Brussels IIter appear to admit of the possibility of jurisdictional review in other Member States using the public policy defence (a form of review which is ordinarily prohibited).47 These provisions suggest a shift away from ex ante jurisdictional verification in non-judicial divorce systems, and a corresponding diminution in the mandatory force of Art. 3 Brussels IIter.48 While Art. 3 Brussels IIter confers international jurisdiction in divorce, separation and annulment matters, it has always been clear that subject-matter jurisdiction is a matter for the lex fori (or applicable law) within each Member State, and so, in practice, there is no guarantee of being able to apply for a divorce, or separation, or annulment in any Member State even if it is competent pursuant to Art. 3.49 It was accepted from the outset that certain Member States did not provide for legal separation or annulment, and that this would not be altered by the conferral of international jurisdiction under Art. 3.50 Thus, a competent court does not owe any obligation to provide the full range of matrimonial relief envisaged under Art. 3 Brussels IIter. 39 40 41 42 43 44 45 46 47

48

49 50

And does not have jurisdiction under Art. 4 or 5 Brussels IIter either. See Art. 18 Brussels IIter discussed below. See also Großerichter (fn. 10), p. 37. EUFAMS II Consortium (fn. 25), pp. 38, 53 referring to France, Luxembourg and Croatia. See Lobach/Rapp, EUFAMS II An Empirical Study on European Family and Succession Law (2019), accessible at www2.ipr.uni-heidelberg.de/eufams/index.php?site=projektberichte, pp. 35–36, 40–41 acknowledging the existence of “indirect party autonomy”. See Report Borrás, para. 28; Kruger/Samyn (fn. 6), p. 141. Lobach/Rapp (fn. 43), pp. 35–36. See eg the English cases: Rapisarda v. Colladon [2014] EWFC 35; Grasso v. Naik [2017] EWHC 2789 (Fam). Art. 69 Brussels IIter prohibiting review of the jurisdiction of the court of origin refers to the public policy test in Art. 38 Brussels IIter (applicable to decisions), but not to that in Art. 68 Brussels IIter (applicable to authentic instruments/agreements). See Brosch/Mariottini, EUFAMS II Report on the International Exchange Seminar, 20 December 2019, accessible at www2.ipr.uni-heidelberg.de/eufams/index.php?site=projektberichte, p. 8. See Brosch/Mariottini (fn. 47), p. 12 discussing “the applicability of jurisdiction rules to non-judicial authorities”; also Sellens/Alonso/Siaplaouras in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families: A Path Through Coordination (2020), p. 173 arguing that notaries and other authorities involved in administering non-judicial divorces must observe the EU rules of jurisdiction; also D’Alessandro in Scherpe/Bargelli (eds.), The Interaction between Family Law, Succession Law and Private International Law (2021), pp. 69, 74. Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010), 103-4. See Commission Staff Working Paper, Annex to the Green Paper on Applicable Law and Jurisdiction, SEC (2005) 331, pp. 15–16; also Commission Staff Working Document, Annex to the Proposal for a Council Regu-

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Art. 3 Brussels IIter General jurisdiction 16

It may follow from this that even if “matrimonial matters” is interpreted by the CJEU as including same-sex marriage,51 that Member States with a different-sex conception of marriage may continue to deny divorce jurisdiction to same-sex couples – even where they have international jurisdiction under Art. 3 Brussels IIter. Such discriminatory treatment may be incompatible with the EU Charter of Fundamental Rights,52 but this instrument is engaged only when Member States are implementing EU law53 and may therefore be inapplicable where the question is one of subject-matter jurisdiction under domestic law. This situation is not clear-cut, however: the scope of fundamental rights protection is somewhat nebulous54 – and there have been some suggestions that the non-availability of divorce in the forum with Art. 3 jurisdiction may trigger a forum necessitatis in other Member States55 (although there is no textual basis for this). This debate underscores the need for an express forum necessitatis for the benefit of same-sex spouses who have married in a Member State which sanctions same-sex marriage but live in a Member State which does not.

17

A final question relates to the entitlement to decline to exercise divorce jurisdiction under Art. 3 Brussels IIter where a parallel action is already underway in a third-country court. The orthodox view is that the Owusu56 doctrine extends to Brussels IIter and that there is no discretion to decline jurisdiction on the basis that a third-country forum is more appropriate or already seised.57 Nonetheless, there is a broad consensus on the undesirability of such parallel proceedings,58 and sometimes a willingness in practice to decline to exercise jurisdiction conferred by Art. 3, where there is a prior action already pending in a third country.59

IV. Time of assessment 18

Art. 3 Brussels IIter does not explicitly refer to the time at which satisfaction of the jurisdictional criteria is to be determined, but it is widely accepted that the evaluation should relate to the time of commencement of proceedings60 and that perpetuatio fori applies (so that the court remains competent thereafter irrespective of any changes in the parties’ connections).61 This approach chimes with the requirement in the fifth and sixth indents of a defined period of residence in the forum “immedi-

51 52 53 54 55

56 57

58 59

60 61

lation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters SEC (2006) 949, p. 25. See the discussion of same-sex marriage under Art. 1 Brussels IIter above. Art. 13 of the Rome III Regulation (fn. 16) – and Recitals 10 and 26 Rome III – are also supportive of Member State autonomy in determining whether to dissolve a same-sex marriage in those Member States bound by Rome III. Art. 21 of the Charter prohibits discrimination based on sexual orientation. Art. 51 of the Charter. Fawcett/Ní Shúilleabháin/Shah, Human Rights and Private International Law (2016), pp. 27–30. See Borg-Barthet (fn. 22), p. 28; also Ricci (fn. 5), p. 43 referring to a German case concerning a German woman married to a Maltese man and living in Malta prior to the introduction of divorce there; also Mostermans, in Boele-Woelki/González Beilfuss (eds.), Brussels II bis: Its Impact and Application in the Member States (2007), pp. 229–230 referring to a similar petition from a Dutch woman living in Malta. Andrew Owusu v. N.B. Jackson, trading as “Villa Holidays Bal-Inn Villas”, and others (Case C-281/02) (2005) ECR I-1383. See Impact Assessment (fn. 6), pp. 16 and 25; Hausmann (fn. 5), p. 240; Trimmings (fn. 13), pp. 813–5; Großerichter (fn. 10), p. 36. In O.F. v. P.G. (fn. 12), paras. 35–36 it was confirmed by the CJEU that a Member State court with international jurisdiction under Art. 3 may not decline that jurisdiction in favour of another Member State with stronger connections to the family. This was already the unanimous view of the literature (see eg Großerichter (fn. 10), p. 36; Hausmann (fn. 5), p. 240; Ní Shúilleabháin (fn. 49), p. 196). Ní Shúilleabháin (fn. 49), p. 207; GEDIP Proposal (fn. 22), Art. 13(3); Borrás (fn. 11), p. 9. See Impact Assessment (fn. 6), p. 26; also Mittal v Mittal [2013] EWCA Civ 1255 where English divorce proceedings commenced under Art. 3 Brussels IIbis were stayed in deference to prior divorce proceedings in India. The Court of Appeal in Mittal (at [50]) referred to the French Cour de Cassation (on 17 June 2009) taking the same approach where a French divorce action post-dated an Icelandic one. Report Borrás, para. 31; Ricci (fn. 5), p. 41; Asser Institute (fn. 10), p. 50; Ní Shúilleabháin (fn. 49), pp. 133–134. Hausmann (fn. 5), pp. 241, 244; Großerichter (fn. 10), p. 36; Asser Institute (fn. 10), p. 50.

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ately before the application was made”.62 Hausmann suggests that the time “when the proceedings become pending” is determinative, to be decided in accordance with Art. 17 Brussels IIter (formerly Art. 16 Brussels IIbis).63 However, he also contends that non-compliance at the moment of commencement should not necessarily be fatal, if there is subsequent satisfaction of a jurisdictional criterion before the case is determined, and there has been no intervening petition to the courts of another Member State.64 Hausmann argues that this flexibility is justified on grounds of procedural economy: there is no value in dismissing a petition for want of jurisdiction at the time of commencement if the same petitioner would be entitled to bring a fresh petition straight away.65

V. Seven grounds for jurisdiction Art. 3 Brussels IIter lays down seven separate (but overlapping66) grounds for jurisdiction, the “seven 19 indents”.67 Of these, the fifth and sixth indents are the most controversial,68 insofar as they allow for forum actoris and confer competence on a forum to which the respondent has no connection and to which the respondent has not consented. All of the other “indents” entail either mutual connectedness, or consent on the part of the unconnected party, and so are relatively less contentious bases for jurisdiction. The first indent based on the parties’ common habitual residence is thought to be the most widely used jurisdictional ground.69 Although it is possible that the spouses (and any children) will have relocated by the time of the hearing, the first indent usually designates an appropriate and convenient forum for the divorce and for dealing with related matters. The first indent aligns with the default rules of the Rome III Regulation70 to allow for the application of the lex fori.71 This alignment of forum and ius is practical and efficient.72

20

The second indent confers jurisdiction on the Member State where the spouses were last habitually 21 resident, provided one of them still resides there. This provision designates a forum to which both parties are connected and is intended to cater for the situation where one spouse relocates to another country following the demise of the marriage, while the other remains in the forum Member State.73 There is no actual requirement that the parties have had a shared dwelling in the forum state74 – but it is necessary that the remaining spouse has maintained a continuous, unbroken habitual residence there (as per the word “still”).75 Rome III will usually allow for the application of the lex fori where the second indent is invoked.76 62 Asser Institute (fn. 10), p. 50; Ní Shúilleabháin (fn. 49), p. 133. 63 Hausmann (fn. 5), p. 240. See also Großerichter (fn. 10), p. 40; also M.H. v. M.H. (Case C-173/16) ECLI:EU: C:2016:542. 64 Hausmann (fn. 5), pp. 246, 248–9. 65 Hausmann (fn. 5), pp. 246, 248. But see also Großerichter (fn. 10), pp. 40, 52, 57 questioning this interpretation. 66 Großerichter (fn. 10), p. 46; de Boer, (2002) 49 NILR 307, 316. 67 Formally, only the first six grounds are presented as “indents” to Art. 3(a), but for ease of reference the seventh ground (laid down separately in Art. 3(b)), will be described as the “seventh indent”. 68 Ricci (fn. 5), p. 46; Borrás (fn. 11), p. 4; Asser Institute (fn. 10), pp. 53–54. 69 Hausmann (fn. 5), pp. 243–4; Borrás (fn. 11), p. 4. 70 See fn. 16 above. 71 Art. 8(a) Rome III. 72 See Lobach/Rapp (fn. 43), p. 19 reporting that there was a high convergence of forum and ius in divorce cases across the EU. 73 Hausmann (fn. 5), pp. 244–245; Borrás (fn. 11), p. 4; Großerichter (fn. 10), pp. 47–48; Asser Institute (fn. 10), p. 52. 74 Großerichter (fn. 10), p. 48; Ní Shúilleabháin (fn. 49), p. 135; Hausmann (fn. 5), p. 244. 75 Großerichter (fn. 10), pp. 47–48; Hausmann (fn. 5), pp. 244–245. Although it might be argued, given the wording, that an ongoing “residence” suffices, even neither spouse is “habitually resident” in the forum state anymore. On the use of “habitual residence” and “residence”, see the discussion of the fifth indent below. 76 Hausmann (fn. 5), p. 245; Borrás (fn. 11), p. 4 although, as Borrás notes, Art. 8(b) of Rome III requires the common habitual residence to have subsisted up to a year before the court was seised – and so the alignment with the second indent is not complete.

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The third indent allows the courts of the respondent’s habitual residence to hear the divorce application. This provision embodies the actor sequitur forum rei tradition which is widely used in EU private international law instruments.77 In this instance, only one party (the respondent) is required to be connected to the forum, but the consent of the other party (the applicant who chose to initiate the proceedings) is implicit.

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The fourth indent confers jurisdiction on a Member State in which either spouse is habitually resident “in the event of a joint application”. The scope of this provision is somewhat unclear. Ricci suggests that the fourth indent will only come into play where the lex fori permits a joint petition,78 but Hausmann argues that the “international jurisdiction of a court under the Regulation should not be made dependent on substantive or procedural requirements of divorce under national law”.79 In Hausmann’s view, the fourth indent is triggered by the respondent’s consent, whether this is communicated by way of a cross-petition for divorce, or by a formal communication to the court of the respondent’s consent to the petition.80

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The fifth indent, as indicated above, embodies a form of forum actoris.81 Applicants can sue for divorce in a forum of their own choosing, provided the applicant is “habitually resident” in the forum and has “resided” there for at least one year prior to the making of the application. The requirement of one year’s residence is intended to restrict the availability of forum actoris and to give priority to the petition of the other spouse in a mutually connected forum (eg under the second indent).82 This “head-start”83 may however be thwarted by substantive law requirements in the alternative forum – for example, where the court designated by the second indent would apply a divorce law which requires two years of living apart before the bringing of an application for divorce.84

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There has been ongoing debate as to precise nature of the time limit imposed by the fifth indent,85 and it seems that there is some variation in how the requirements are articulated in the different language versions of the Regulation.86 As noted by Aikens LJ, in the English case of Tan v. Choy,87 there are three possible interpretations of the English language version: first, that the applicant must establish “residence” (a lesser requirement) for one year prior, and “habitual residence” (a more onerous requirement) only as of the day of the application; second, that the applicant must establish “habitual residence” throughout the year preceding the application (assuming that the word “residence” is to be understood in light of the earlier reference to “habitual residence”), or third, that the applicant is simply required to prove one year of “residence”, from which “habitual residence” is then inferred. While the first interpretation was often endorsed in the British case-law and indeed enjoys some support from the CJEU,88 the literature tends to prefer the second interpretation89 – an interpretation which is more onerous from a petitioner perspective, and less conducive to forum shopping.

77 Art. 4 Brussels I Recast (fn. 23); Art. 3(a) Maintenance Regulation (fn. 29). 78 Ricci (fn. 5), p. 46. Taking the same view, see also Hodson, [2014] International Family Law 170. 79 Hausmann (fn. 5), p. 247. This view is echoed by Großerichter (fn. 10), p. 49. For further discussion of the meaning of “joint application”, see Ní Shúilleabháin (fn. 49), p. 137 ff. 80 Hausmann (fn. 5), pp. 246–7. The mere entry of an appearance is not, however, sufficient: there must be an “active expression of consent”: Großerichter (fn. 10), p. 50. 81 As previously indicated, the fifth indent does not apply in third-party annulment applications (see fn. 35 above), nor does it confer accessory jurisdiction under the Matrimonial Property Regulation (fn. 30) in the absence of consent. 82 See Ricci (fn. 5), p. 46; Hausmann (fn. 5), p. 247; Borrás (fn. 11), pp. 4–5; Großerichter (fn. 10), pp. 35, 47. 83 See Großerichter (fn. 10), pp. 35, 47. 84 This is the substantive requirement for divorce under Irish law: s. 5(1)(a) Family Law (Divorce) Act 1996, as amended. On the defeat of the “head-start”, see further Ní Shúilleabháin (fn. 49), pp. 142–143. 85 Ní Shúilleabháin (fn. 49), pp. 143–144. 86 Hodson (fn. 78), p. 172. 87 Tan v. Choy [2014] EWCA Civ 251, para. 30. 88 Marinos v. Marinos [2007] EWHC 2047 (Fam), para. 46; V v.V (Divorce Jurisdiction) [2011] EWHC 1190 (Fam), para. 50; Williamson v. Williamson [2009] ScotSC 18, para. 24. The CJEU also appears to assume this interpretation in I.B. v. F.A. (Case C-289/20) ECLI:EU:C:2021:955 paras. 59–61 although the question is not discussed in any detail.

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The sixth indent is closely allied to the fifth indent,90 but allows for an acceleration of jurisdictional 26 access for the applicant who has the nationality (or, in the case of Ireland, the domicile91) of the forum state. For such applicants, the requisite period of “residence” is reduced from one year to six months. This provision (which raises the same questions of interpretation with respect to the interrelationship of the “residence” and “habitual residence” criteria) was introduced as part of the political compromise underpinning the Brussels II Convention, and was intended to protect spouses who had relocated within the context of their marriage, subsequently returning “home” with its demise.92 It was agreed that such a spouse should not be subjected to the full rigours of the fifth indent – although in any “race to court” the Member State of the (previous) common habitual residence – assuming the other spouse remains there – will retain a jurisdictional advantage.93 The sixth indent, like the fifth indent, is a forum actoris ground which may confer jurisdiction on Member States to which the respondents have no personal connection and to which they have not consented. However, it is posited that this is a less extreme version of forum actoris insofar as the applicant is required to have a connection of nationality (or common law domicile) to the forum. In marrying a person with a particular nationality or domicile, the respondent ought reasonably to have anticipated that the legal system in question could have a role to play in the event of divorce.94 The fifth indent, by contrast, may confer jurisdiction on a Member State which had no connection to either spouse until the applicant (belatedly) took up residence there.

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Insofar as the sixth indent uses nationality as a connecting factor, concerns have been raised as to a possible violation of Art. 18 TFEU (prohibiting discrimination on grounds of nationality) and as to the jurisdictional disenfranchisement of stateless persons.95 These matters are considered below as part of a wider discussion of ‘nationality’ as a jurisdictional connecting factor.

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Spouses with more than one nationality may invoke any one of those nationalities under the sixth indent.96

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The “seventh indent”97 (Art. 3(b) Brussels IIter) confers jurisdiction on the Irish courts where both 30 spouses have their common law domicile in Ireland – and on any other Member State where both spouses have the nationality of that state. Any shared nationality will suffice, and it does not matter that either spouse or both spouses have much stronger personal connections to another nationality which they also possess.98 The seventh indent is intended to allow EU nationals, who are living outside of the Member State of their (joint) nationality, to bring a divorce petition before their “home” courts, which may be culturally more appropriate and more convenient to them.99 In practice, it seems likely that EU citizens tend to use habitual residence more than nationality in establishing divorce jurisdiction100 – but some Member States report frequent recourse to the seventh indent.101

89 Hodson (fn. 78), pp. 172–173; Hausmann (fn. 5), p. 248; Großerichter (fn. 10), pp. 50–51. But see Trimmings (fn. 13), p. 807 expressing support for the first interpretation as the one which is most faithful to the English language text. 90 As under the fifth indent, the sixth indent is likewise inapplicable to third-party annulment applications (see fn. 35 above), and it does not confer accessory jurisdiction under the Matrimonial Property Regulation (fn. 30) in the absence of consent. 91 Art. 2(3) Brussels IIter. Domicile can be invoked before the Irish courts only (and not by Irish nationals with a common law domicile in another Member State): Hausmann (fn. 5), pp. 250–251; Ní Shúilleabháin (fn. 49), pp. 145–146; Großerichter (fn. 10), pp. 53–54. 92 Report Borrás, para. 32; Großerichter (fn. 10), pp. 53, 55; Ní Shúilleabháin (fn. 49), p. 144. 93 Under the second indent: Großerichter (fn. 10), p. 53; Ní Shúilleabháin (fn. 49), pp. 144–145. 94 Ní Shúilleabháin (fn. 49), p. 145; O.E. v. V.Y. (Case C-522/20) ECLI:EU:C:2022:87 paras. 34–36. 95 Hausmann (fn. 5), pp. 250–251; Großerichter (fn. 10), pp. 53–55. 96 Hadadi (fn. 8), para. 52. 97 See fn. 67 above. 98 Hadadi (fn. 8), paras. 51, 58. 99 Ní Shúilleabháin (fn. 49), p. 146. 100 See fn. 69 above. 101 eg in Bulgaria, Croatia and France: see Tsenova/Petrov, in: Beaumont/Danov/Trimmings/Yüksel (fn. 13), p. 261; EUFAMS II Consortium (fn. 25), p. 6; Asser Institute (fn. 10), p. 56.

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Art. 3 Brussels IIter General jurisdiction The EUFams II study suggests that Croatian couples living outside Croatia will often apply for divorce in Croatia, and are attracted by the relatively lower legal costs there.102 31

The seventh indent can confer parallel competence on multiple courts:103 for example, where a Franco-German couple (both with French and German nationality) are domiciled in Ireland, the French, German and Irish courts will all have jurisdiction under Art. 3(b) Brussels IIter. This raises concerns as to forum shopping and “race to court”.104 As under the sixth indent, the seventh indent’s use of a nationality criterion is contentious from the perspective of Art. 18 TFEU and also for its implications for stateless persons105 (these are discussed below).

VI. Connecting factors used in Art. 3 1. Habitual residence 32

As explained above, “habitual residence” is the principal connecting factor under Art. 3 Brussels IIter. Its use aligns well with the EU’s policy of integration for mobile citizens and the desire to ensure parity of treatment within the host Member State.106 As a jurisdictional connecting factor, it aims to facilitate access to the most proximate courts, and to allow spouses to divorce within their local community, without having to travel long distances, and before judges who are geographically close to any facts in contention.107 By comparison with “nationality”, it is a pragmatic connecting factor in an era of high mobility.108

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The CJEU has provided interpretative guidance on the child’s habitual residence in a substantial number of Brussels IIbis cases,109 but, until very recently, had not yet had an opportunity to pronounce on the assessment of an adult’s habitual residence under Art. 3. Two CJEU divorce rulings have now been published: one on whether habitual residence must be exclusive (I.B. v. F.A.),110 and the other on the habitual residence of EU officials assigned to a third country and recognised there as members of EU diplomatic staff (M.P.A. v. L.C.D.N.M.T.).111 In developing an understanding of an adult’s “habitual residence” under Art. 3 Brussels IIter, it is also possible to draw on the Court’s jurisprudence in other unrelated EU contexts (social security, staff regulations)112 and on its ruling in the related context of the Succession Regulation.113 In E.E.114 the CJEU advised on the deceased’s habitual residence in determining jurisdiction for succession purposes.

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The wider case-law and the literature had supported the view (now endorsed in I.B. v F.A.) that “habitual residence” under Art. 3 Brussels IIter is an autonomous, uniform, fact-based EU concept, and

102 103 104 105 106

107 108 109 110 111 112 113

114

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EUFAMS II Consortium (fn. 25), p. 6. Hausmann (fn. 5), pp. 252–253; Asser Institute (fn. 10), p. 57; Großerichter (fn. 10), pp. 56–57. Asser Institute (fn. 10), p. 56. Hausmann (fn. 5), pp. 252–253; Großerichter (fn. 10), pp. 56–58. See eg Richez-Pons in Boele-Woelki (ed.), Common Core and Better Law in European Family Law (2005) 358; Dutta, in Basedow/Rühl/Ferrari/de Miguel Asensio (eds.), Encyclopedia of Private International Law (2017) 558; Mansel in Basedow/Rühl/Ferrari/de Miguel Asensio (eds.), Encyclopedia of Private International Law (2017) 1298. Richez-Pons (fn. 106), pp. 356–357. Richez-Pons (fn. 106), p. 356; Pauknerová, (2008) 4 J.PIL 83, 95. See infra the commentary on Art. 7 Brussels IIter. I.B. v. F.A. (fn. 88). M.P.A. v. L.C.D.N.M.T. (Case C-501/20) ECLI:EU:C:2022:619. eg Robin Swaddling v. Adjudication Officer (Case C-90/97) (1999) ECR I-1075; Pedro Magdalena Fernández v. Commission (Case T-90/92) (1993) ECR II-971; (Case C-452/93 P) (1994) ECR I-4295; Cosimo Garganese v. Commission (Case 185/80) (1981) ECR 1785. 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 2012 L201/107. E.E. (Case C-80/19) ECLI:EU:C:2020:569.

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one which is independent of national approaches to “habitual residence”, and focussed on the “centre of interests” of the spouse(s).115 The factors emphasised in the child cases are of relevance under Art. 3 Brussels IIter as well,116 although intention will have a more important role where adults are concerned (as opposed to dependent children).117 The spouse’s habitual residence will require a form of stable presence in the forum state, with an intention to establish the habitual centre of interests there.118 “Habitual residence” is based on an overall assessment of all the factual circumstances specific to the case,119 and one would expect a particular focus on the permanence of the spouse’s housing arrangements (lease or purchase of property), on their social, cultural and linguistic integration, on their family connections and nationality, and on their place of employment.120 The literature on “habitual residence” cites national and European cases where courts have considered immensely practical matters such as whether a spouse pays tax or social security contributions in the Member State in question; attends a doctor, receives mail, has a pet or car or bank account there; is on the electoral register or has joined clubs in that Member State.121 On occasion, national courts, in their assessment of “habitual residence” have given priority to en- 35 tries in a central register of formal residence,122 and to fixed time-requirements derived from national law,123 but it is widely accepted that these approaches are misconceived.124 The better view is that habitual residence is a question of fact and not form,125 and can be established almost immediately upon arrival where there is clear evidence of an intention to remain and especially where there are pre-existing connections.126 A longer duration will, however, be required where intentions are fuzzier or where there is a lesser degree of integration into the forum state. The most difficult cases concern adults who are living and working in another country on second- 36 ment (without putting down strong roots) and those who maintain more than one residence, living intermittently in two different countries.127 National case-law has been inconsistent in its handling of these borderline cases128 and it was anticipated that the CJEU’s ruling on exclusivity in I.B. v F.A. might assist in resolving these inconsistencies. If the CJEU had accepted the possibility of dual or concurrent habitual residence, this would have allowed the secondee and the intermittent resident to claim habitual residence in both of the countries to which they are connected (arguably the most realistic view of such living arrangements). In the end, however, the CJEU in I.B. v F.A., agreed with the Advocate General in insisting on a single habitual residence (although, unlike the Advocate General, the CJEU did not allude to the possibility of a person having no habitual residence at all in these borderline situations).129 With the CJEU’s rejection of the possibility of dual or concurrent habitual

115 Limante, (2018) 14 J.PIL 160, 164, 168; Kruger in Beaumont/Danov/Trimmings/Yüksel (fn. 13), pp. 742–744; Kruger in Viarengo/Villata (fn. 48), pp. 119–120; Ní Shúilleabháin (fn. 49), pp. 36–40; Ricci (fn. 5), pp. 47–48; also the CJEU’s judgments in Swaddling (fn. 112), paras. 28–30 and in I.B. v F.A. (fn. 88), paras. 39, 43, 52. 116 Limante (fn. 115), pp. 169–170, 172–173; Ní Shúilleabháin (fn. 49), pp. 36–37; I.B. v. F.A. (fn. 88), para. 52. 117 See Kruger in Viarengo/Villata (fn. 48), pp.120–121; Kruger in Beaumont/Danov/Trimmings/Yüksel (fn. 13), p. 754; I.B. v. F.A. (fn. 88) paras. 54–58. 118 I.B. v. F.A. (fn. 88) paras. 57–58. See also A (Case C-523/07) (2009) ECR I-2805, para. 37 ff. 119 I.B. v. F.A. (fn. 88) paras. 52, 61; A (fn. 118) para. 42. 120 A (fn. 118), paras. 38–40; Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU) (2010) ECR I-4309, paras. 50–55; Swaddling (fn. 112), para. 29; I.B. v. F.A. (fn. 88), paras. 54–56, 59–60. 121 Limante (fn. 115); Kruger in Beaumont/Danov/Trimmings/Yüksel (fn. 13), pp. 745–747; Kruger in Viarengo/Villata (fn. 48), pp. 123–124. 122 Limante (fn. 115), p. 165; Trimmings (fn. 13), p. 806. 123 Limante (fn. 115), p. 172 (referring to a Bulgarian practice); Kruger in Viarengo/Villata (fn. 48), pp.124–125, referring to German practice. 124 Limante (fn. 115), pp. 165–166, 172; Kruger in Viarengo/Villata (fn. 48), pp.124–125; Kruger, in Beaumont/ Danov/Trimmings/Yüksel (fn. 13), p. 743. 125 Limante (fn. 115), p. 170; Kruger in Viarengo/Villata (fn. 48), pp. 121–122, 131–132. 126 Mercredi (fn. 120), paras. 51, 56; Swaddling (fn. 112), paras. 29–30. Limante (fn. 115), p. 172; Großerichter (fn. 10), pp. 43–44. 127 Limante (fn. 115), pp. 171, 179–180; Ricci (fn. 5), p. 50–51. 128 Ricci (fn. 5), pp. 50–51; Limante (fn. 115), pp. 179–180; Ní Shúilleabháin (fn. 49), pp. 43–44, 46–48. 129 Opinion of Advocate General Sánchez-Bordona of 8 July 2021, ECLI:EU:C:2020:561 paras. 95–101.

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Art. 3 Brussels IIter General jurisdiction residence under Art. 3 Brussels IIter, it is likely that interpretative difficulties at national level will persist (and indeed new problems of artificiality130 may arise). 37

It was difficult to anticipate the outcome in I.B. v F.A. In its previous ruling on the habitual residence of the deceased in determining jurisdiction under the Succession Regulation, the CJEU had insisted on exclusivity131 – but this was in a context where the text of the Regulation clearly envisaged such an approach132 and where the Regulation also included a choice-of-law rule which would be unworkable in a context of dual habitual residence.133 The Court (in E.E.) also emphasised the importance of context in interpreting “habitual residence”134 – and it is arguable that the Art. 3 Brussels IIter context is markedly different insofar as parallel competence is already in contemplation, and “nationality” under Art. 3 Brussels IIbis has been defined as encompassing all nationalities, even if this facilitates forum shopping.135 On the other hand, however, an endorsement of dual habitual residence might be seen as an unacceptable extension of forum actoris.136 The development of entirely separate conceptions of adult “habitual residence” for different EU private international law instruments might also raise concerns of excessive complexity, contrary to the interests of the mobile citizen.137

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In time, the CJEU may also be asked to advise on the characterisation of contrived or forced living arrangements and on the impact of any illegality on “habitual residence” under Art. 3 Brussels IIter.138 Given the fact-based focus, one would expect that an irregular immigration status will not preclude a finding of habitual residence.139 Similarly, it seems likely that the fact of day-to-day life in a Member State will eventually overcome any objection that the move was strategic,140 or in the alternative, was not an exercise in free will.141 In the M.P.A. v L.C.D.N.M.T. case, the CJEU (at para. 59) expressed the view that the spouses’ presence in a third country (Togo) as part of an EU delegation was voluntary and so the question of compulsory or forced habitual residence did not require resolution on the facts at hand. 2. Nationality

39

While “habitual residence” is an autonomous EU conception, “nationality” is a hybrid mix.142 The acquisition and loss of nationality is a matter for domestic law (in the conferring state) but the inter130 See Hill/Ní Shúilleabháin, Clarkson & Hill’s Conflict of Laws, 5th ed (2016), p. 348 arguing that exclusivity causes “habitual residence” to lose much of its fact-based objectivity. If the CJEU had accepted the idea that an adult may have no habitual residence (as suggested by the Advocate General), this would have raised additional concerns of jurisdictional exclusion. 131 E.E. (fn. 114), paras. 40–41. 132 E.E. (fn. 114), paras. 38–39 referring to Recitals 23–24 Succession Regulation. 133 E.E. (fn. 114), para. 41. As noted by Rogerson, (2000) 49 ICLQ 86, 104, in “cases concerned with choice of law, it is very important that a single legal system is identified, no more and no less”. 134 E.E. (fn. 114), paras. 38–39, 41. See also Wencel v. Zakład Ubezpieczen Społecznych w Białymstoku (Case C-589/10) ECLI:EU:C:2013:303 paras. 43–51; and the Opinion of Advocate General Sánchez-Bordona in I.B. v. F.A. (fn. 129), paras. 38, 41 and 50. Indeed, in I.B. v. F.A. (fn. 88), para. 39, the CJEU also acknowledged the significance of context in defining habitual residence under Art. 3 Brussels IIbis. 135 Hadadi (fn. 8), para. 57. See further Hill/Ní Shúilleabháin (fn. 130), pp. 349–350. 136 Opinion of Advocate General Sánchez-Bordona in I.B. v. F.A. (fn. 129), para. 82. 137 See Kruger in Viarengo/Villata (fn. 48), p. 121. See, however, Rogerson (fn. 133), p. 88 arguing that the idea of a singular concept of habitual residence, unaffected by context, is “illusory”. 138 On illegality and habitual residence, see Ní Shúilleabháin (fn. 49), pp. 60–61; on contrivance, Ní Shúilleabháin (fn. 49), pp. 49–50; and on volition and compulsion, Ní Shúilleabháin (fn. 49), pp. 58–60. 139 Mark v. Mark [2005] UKHL 1193, paras. 33–36; also Kruger in Viarengo/Villata (fn. 48), p. 129. 140 Kruger in Beaumont/Danov/Trimmings/Yüksel (fn. 13), p. 752. 141 In Garganese (fn. 112) it was accepted that involuntary military service should not be counted in assessing habitual residence (in determining an expatriation allowance); however, in Magdalena Fernández (fn. 112) the Court indicated that individuals were habitually resident wherever they lived on a day-to-day basis, even if they did so reluctantly. See also U.D. v. X.B. (Case C-393/18 PPU) ECLI:EU:C:2018:835 para. 60 ff. where it was held that direct coercion by a child’s father could not vitiate the factual reality of the child’s habitual residence in Bangladesh where the child had lived since birth. 142 Dutta (fn. 106), pp. 558–559 suggests that the capacity for EU control over “habitual residence” is one of its main attractions as a connecting factor in an EU instrument.

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pretation and use of “nationality” as a connecting factor is subject to CJEU supervision.143 And so, in the Hadadi case, the CJEU ruled that spouses with the joint nationality of two Member States could petition in either of those Member States under Art. 3(b) Brussels IIter (then 3(1)(b) Brussels IIbis).144 All Member State nationalities were equal and could be invoked.145 This chimed with the earlier Garcia Avello case where the Court had ruled that a “forum nationality” rule (prioritising the nationality of the forum in the event of dual nationality) would violate Art. 18 TFEU (then Art. 12 EC).146 The CJEU in Hadadi also signalled that the “effective nationality” test could not be used in determining jurisdiction under Art. 3: a formal nationality must have the same standing as a much more connected nationality because otherwise the connecting factor would lose its “simple and unambiguous” nature and legal certainty would be compromised.147 As has been seen, habitual residence offers advantages in circumstances of mass mobility, but none- 40 theless, there will be situations where the bond with the country of nationality is much stronger, and a habitual residence (of say two years’ duration) may be relatively incidental to a person’s life.148 In such circumstances, spouses who have engaged in EU free movement may prefer to have recourse to the divorce courts of their Member State of origin (of which they are both nationals).149 Although nationality plays a limited role under Art. 3 Brussels IIter – only coming into play either where there is a shared nationality, or in combination with habitual residence – it may still (as Raiteri observes) “contribute to meeting the new challenges posed by a diversified and increasingly complex European society”.150 The hard edges and stability of nationality also offer much greater predictability by contrast with the much more ephemeral151 and loose-textured concept of “habitual residence”.152 The use of nationality-based jurisdiction can clearly be very problematic where stateless persons are 41 concerned – but in the Brussels IIter context, where habitual residence is the primary connecting factor, stateless persons will have ready access to the courts of the Member State in which they reside.153 Indeed, they will enjoy the same jurisdictional access to EU courts as third country nationals living in the EU. Hausmann suggests that Member States may be obliged under international law to assimilate stateless residents to the position of nationals,154 but other commentators question this approach.155 As already noted, Art. 18 TFEU prohibits discrimination on grounds of nationality, causing some commentators to question the legitimacy of using nationality as a jurisdictional connecting factor under Brussels II (bis).156 These concerns receded as nationality was deployed in a range of EU private international law instruments in the family law area, and it is now accepted (and confirmed by the CJEU) that the use of nationality as a connecting factor in Art. 3 Brussels IIter is compatible with Art. 18 TFEU.157 Indeed, it is arguable that nationality-based jurisdiction is justified by the need to treat dif-

143 See Ricci (fn. 5), pp. 53–54; Kruger/Verhellen, (2011) 7 J.PIL 601, 610; Ní Shúilleabháin (fn. 49), pp. 76–77; Großerichter (fn. 10), pp. 44–45. 144 Hadadi (fn. 8) para. 58. 145 Hadadi (fn. 8) paras. 51–52. 146 Carlos Garcia Avello v. État belge (Case C-148/02) (2005) ECR I-11613 (a case on cross-border recognition of surnames). 147 Hadadi (fn. 8), paras. 51–55. 148 Pauknerová (fn. 108), p. 97: Dutta (fn. 106), p. 558. 149 See the discussion of the “seventh indent”, supra. 150 Raiteri, (2014) 10 J.PIL 309, 334. See also Mansel (fn. 106), pp. 1293–1295: the use of nationality can be justified as an expression of the state’s responsibility for its citizens – and under human rights law as an expression of the cultural identity of an individual. 151 McEleavy, (2004) 53 ICLQ 605, 621. 152 Dutta (fn. 106), p. 560; Mansel (fn. 106), p. 1295. 153 Mansel (fn. 106), p. 1296 notes that the use of habitual residence is supportive of immigrants and refugees. 154 Hausmann (fn. 5), pp. 250, 252. 155 Raiteri (fn. 150), pp. 328–329; Großerichter (fn. 10), pp. 53, 56. 156 Hausmann (fn. 5), pp. 251, 253; Schack, (2002) 4 Eur. J. L. Reform 37, 45. 157 O.E. v. V.Y. (fn. 94), a case on Article 3(1)(a) Brussels IIbis. See also Bogdan, in Meeusen/Pertegás/Straetmans/ Swennen (eds.), International Family Law for the European Union (2007), p. 309; Pauknerová (fn. 108), p. 95; Mansel (fn. 106), p. 1298; Großerichter (fn. 10), pp. 54–55, 57–58; Asser Institute (fn. 10), p. 54.

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42

Art. 3 Brussels IIter General jurisdiction ferent situations differently (as per the ECtHR judgment in Thlimmenos v. Greece158) and therefore necessary to avoid indirect discrimination.159 3. Domicile 43

In contrast to habitual residence – and even nationality – “domicile” is exclusively a creature of national law (Irish law for petitions in Ireland) and no autonomous interpretation is in contemplation.160 This is clear from Art. 2(3) Brussels IIter which proclaims that domicile “has the same meaning” as under the Irish legal system. Under Irish law, every person has a single domicile (no more, no less) which usually corresponds to the country where the person is living with the intention of remaining permanently or indefinitely.161

VII. Conclusion 44

As discussed above, there is considerable dissatisfaction with Art. 3 Brussels IIter, as it currently stands. Commentators point to the potential for forum shopping and “rush to court”162 insofar as Art. 3 Brussels IIter may offer a wide choice of fora, with the chosen forum potentially having accessory jurisdiction in maintenance and matrimonial property matters, and with no scope for transfer. In the context of a spousal resource-imbalance, the wealthier spouse, with better access to legal advice, is likely to be able to seise the forum which best serves that spouse’s own interests.163 Thus, Art. 3 Brussels IIter can exacerbate a pre-existing disparity of power and income between spouses.164 “Rush to court” also discourages mediation and conciliation.165 Choice-of-law harmonisation will have narrowed the strategic options under Art. 3 Brussels IIter to some extent:166 the available fora may all be committed to applying the divorce law and maintenance and property laws of a more connected forum – but it is important to recognise that of the 26 EU Member States bound by Brussels IIter, only 12 have signed up to the full choice-of-law package laid down in Rome III167 and the Hague Maintenance Protocol168 and the Matrimonial Property Regulation.169 Also there is reason to believe that the choice-of-law reforms are not always properly implemented even in those Member States who have formally committed to them.170

45

The addition of a choice-of-court provision, and the prioritisation of bilateral choice (over unilateral choice),171 would assist in resolving many of the problems associated with Art. 3 Brussels IIter. All of the related family law instruments accommodate forum selection clauses and/or choice of law agree158 (2001) 31 EHRR 15. 159 See Kinsch, [2011] 1 NIPR 19, 20 (discussing Thlimmenos in the choice-of-law context); also Fawcett/Ní Shúilleabháin/Shah (fn. 54), pp. 606–613. 160 Hausmann (fn. 5), p. 253; Großerichter (fn. 10), p. 46. 161 See Hill/Ní Shúilleabháin (fn. 130), pp. 315–339; also Binchy, Irish Conflict of Laws (1988), p. 45 ff. 162 Brosch/Mariottini, (fn. 47), p. 7; Ricci (fn. 5), p. 43; Grigiene˙ (fn. 3), p. 104; Sellens/Alonso/Siaplaouras (fn. 48), p. 184; Borrás (fn. 11), pp. 3–4; Asser Institute Recommendations (fn. 22), pp. 57–58; Großerichter (fn. 10), pp. 34–35; Borg-Barthet (fn. 22), pp. 5, 12; Kruger/Samyn (fn. 6), p. 142; Ní Shúilleabháin, (2010) 59 ICLQ 1021, 1031 ff. 163 Borg-Barthet (fn. 22), p. 19; Reddin, (2020) 20 University College Dublin Law Review 39, 47. 164 Borg-Barthet (fn. 22), p. 19. 165 Borg-Barthet (fn. 22), p. 5; Kruger/Samyn (fn. 6), p. 142; Reddin (fn. 163), p. 46. 166 Ricci (fn. 5), p. 45; Hausmann (fn. 5), p. 239; Borrás (fn. 11), p. 3; Asser Institute Recommendations (fn. 22), p. 57; Großerichter (fn. 10), p. 35. 167 Fn. 16. 168 Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, applicable in all EU Member States pursuant to Art. 15 Maintenance Regulation (fn. 29). 169 Fn. 30. All Member States are party to the Hague Maintenance Protocol, but only Austria, Belgium, Bulgaria, France, Germany, Greece, Italy, Luxembourg, Malta, Portugal, Slovenia and Spain are participating in both Rome III and the Matrimonial Property Regulation. See the table in Schrama, in Scherpe/Bargelli (fn. 48), p. 48. 170 EUFAMS II Consortium (fn. 25), pp. 11, 26–27; Lobach/Rapp (fn. 43), pp. 19, 38–40. 171 See Borg-Barthet (fn. 22), p. 14.

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ments172 – but these provisions are undermined by the failure to support jurisdiction agreements under Brussels IIter.173 An agreed choice of law on divorce and matrimonial property can be neatly sidestepped by petitioning for divorce in a Member State which has not signed up to either Rome III or the Matrimonial Property Regulation and which does not support such agreements under its domestic law rules. An agreement to litigate maintenance and matrimonial property in a particular forum can result in fragmented proceedings174 if the chosen forum does not have jurisdiction under Art. 3 Brussels IIter.175 Only when Brussels IIter incorporates a choice-of-court provision will couples be able to nominate, by agreement, a single legal system (forum and ius) to deal with different aspects of their divorce, confident in the knowledge that their choice will be honoured in the round.176 The enforcement of jurisdiction agreements would also reduce the incidence of unilateral forum shopping177 and enhance predictability.178 There are however different views on how a choice-of-court option should be configured,179 and so it may be difficult to secure agreement on such a provision. There is also strong support for the addition of a forum necessitatis,180 and for a transfer mechanism,181 to supplement, and enhance the operation of, Art. 3 Brussels IIter.

46

The introduction of a transfer mechanism would protect against excessive unilateralism under Art. 3 Brussels IIter, and would allow for the consolidation of the divorce and associated proceedings – for example in circumstances where maintenance and parental responsibility proceedings were already underway in another Member State at the time of the divorce petition.182

47

Express provision for a forum necessitatis would extend a safety-net to spouses who would otherwise 48 be deprived of jurisdictional access. Under the existing law, jurisdictional vacuums may arise in a number of different ways. If spouses with intermittent residence in two Member States could be considered to have no habitual residence (as suggested by the Advocate General in I.B. v. F.A.183), then (in the absence of a common nationality), they might find that there is no available forum within the EU. Similarly, even assuming a broad, inclusive definition of “matrimonial matters”, same-sex spouses may find themselves unable to access divorce in the Member State of their habitual residence (due to the denial of subject-matter jurisdiction), and unable to petition in the Member State where they married, because it lacks jurisdiction under Art. 3 Brussels IIter. Even if that latter Member State offers a forum necessitatis as a matter of national law,184 national residual rules will be inapplicable in circumstances where another Member State enjoys Art. 3 Brussels IIter jurisdiction. Also, as will be

172 Art. 5 Rome III (fn. 16); Art. 4 Maintenance Regulation (fn. 29); Art. 8 Hague Maintenance Protocol (fn. 168); Arts.7 and 22 Matrimonial Property Regulation (fn. 30). 173 Sellens/Alonso/Siaplaouras (fn. 48), p. 184; Schrama (fn. 169), pp. 50–53. 174 On Art. 3 and split actions/fragmentation, see further Ní Shúilleabháin (fn. 49), pp. 165–177; Brosch/Mariottini, (fn. 47), p. 3; Trimmings (fn. 13), pp. 809–810; Viarengo et al, in Viarengo/Villata (fn. 48), p. 799 ff. 175 Sellens/Alonso/Siaplaouras (fn. 48), p. 184. 176 Brosch/Mariottini, (fn. 47), p. 13; Asser Institute Recommendations (fn. 22), pp. 54–55, 57. 177 Asser Institute Recommendations (fn. 22), pp. 54, 56; Großerichter (fn. 10), p. 37. Kruger/Samyn (fn. 6), p. 144. 178 Asser Institute Recommendations (fn. 22), pp. 54, 56; Kruger/Samyn (fn. 6), p. 144. 179 eg on whether there should be freedom to select any Member State or a restricted choice; whether enforcement of the agreement should be mandatory or discretionary: see de Boer, in Boele-Woelki/Sverdrup (eds.), European Challenges in Contemporary Family Law (2008) 324–325; Kruger/Samyn (fn. 6), p. 145; Asser Institute Recommendations (fn. 22), p. 55; Borrás (fn. 11), p. 6; GEDIP Proposal (fn. 22), Art. 5; Ní Shúilleabháin (fn. 49), p. 79; Walker, (2018) 14 J.PIL 225, 250–254. 180 GEDIP Proposal (fn. 22), Art. 9 makes provision for a forum necessitatis; also Asser Institute Recommendations (fn. 22), p. 61; Kruger/Samyn (fn. 6), p. 140. 181 Viarengo (fn. 174), p. 805; Trimmings (fn. 13), p. 816; Borg-Barthet (fn. 22), p. 5. 182 See further Ní Shúilleabháin (fn. 49), pp. 209–221; Brosch/Mariottini (fn. 47), p. 9; Borg-Barthet (fn. 22), pp. 12, 19, 34–35; GEDIP Proposal (fn. 22), Art. 10. A mechanism for staying proceedings in the event of a prior third-country action, or a jurisdiction agreement in favour of a third country, is also desirable: see GEDIP Proposal (fn. 22), Art. 6, Art. 13(3). 183 Opinion of Advocate General Sánchez-Bordona (fn. 129), para. 98. 184 Nuyts, Study on Residual Jurisdiction: General Report (2007) p. 96 accessible at https://gavclaw.files.word press.com/2020/05/arnaud-nuyts-study_residual_jurisdiction_en.pdf.

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Art. 4 Brussels IIter Counterclaim discussed in relation to Art. 6 Brussels IIter infra, EU nationals living in third countries may occasionally find themselves jurisdictionally disenfranchised. 49

It may be that a general forum necessitatis can be implied, even under the existing law, building on the right to a fair trial (Art. 6 ECHR/Art. 47 Charter of Fundamental Rights). This possibility has been alluded to on a number of occasions: in the German and Dutch courts where German and Dutch citizens were unable to divorce in Malta (prior to the introduction of divorce there) and where only the Maltese courts had Art. 3 jurisdiction185 – and rather more cryptically by Advocate General Sánchez-Bordona in I.B. v. F.A.186 in reference to the situation which would pertain if a spouse was found to have no habitual residence. In an English case, Mark v. Mark Thorpe LJ opined that the exclusion of overstayers from divorce jurisdiction would engage Art. 6 ECHR.187 One must, however, be careful to distinguish a right of access to court from a right to divorce. The latter is not yet established within the European human rights system188 – and indeed in a recent case, J.E. v. K.F.,189 the CJEU confirmed that Art. 10 of Rome III – allowing for the application of the lex fori where the lex causae “makes no provision for divorce” – was not engaged where the lex causae allowed for divorce but only in limited circumstances.

Article 4 Counterclaim The court before which proceedings are pending on the basis of Article 3 shall also have jurisdiction to examine a counterclaim, insofar as that counterclaim falls within the scope of this Regulation.

I. Preliminary remarks 1

Art. 4 Brussels IIter creates a form of derivative jurisdiction. The court with Art. 3 jurisdiction over an existing petition is permitted to hear a counterclaim falling within the scope of the Regulation, even if, at the time of the counterclaim, the Art. 3 criteria are no longer satisfied1 (or are not satisfied because the original respondent is now seen as a petitioner2). Art. 4 Brussels IIter promotes procedural economy and allows the respondent, who is unable to petition in any other Member State due to the lis pendens doctrine,3 to seek another form of matrimonial relief in the proceedings which are already pending.4

185 Fn. 55 above. 186 Opinion of Advocate General Sánchez-Bordona (fn. 129), para. 100. The CJEU in M.P.A. v. L.C.D.N.M.T (fn. 111) was asked to advise on the possibility of an implied forum necessitatis and on the impact of Art. 47 of the Charter on divorce jurisdiction under Brussels IIbis, but declined to do so on the basis that the question was hypothetical in the case at hand. 187 Mark v. Mark [2004] EWCA Civ 168, para. 40. See further the discussion of forum necessitatis and residual jurisdiction under Art. 6 Brussels IIter, infra. 188 See eg Babiarz v. Poland, App No. 1955/10, ECtHR 10 January 2017; Seredyn´ski v. Poland, App. No. 61811/ 14, ECtHR 25 September 2018. 189 J.E. v. K.F. (Case C-249/19) ECLI:EU:C:2020:570. 1 Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010), p. 148. 2 Eg if the original claim was based on the respondent’s habitual residence (third indent) – but that respondent has now moved on – or was resident in the forum state for less than one year and so is ineligible under the fifth indent. 3 See Art. 20 Brussels IIter discussed infra. 4 Asser Institute, Regulation Brussels IIbis: Guide for Application (2018), p. 57; Großerichter, in: Althammer (ed.), Brussels IIa: Rome III (2019) 59–61; Hausmann in Corneloup (ed.), Droit Européen du Divorce/European Divorce Law (2013) 255.

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Art. 4 Brussels IIter

II. Legislative history The text of Art. 4 Brussels IIter derives from Art. 5 of the Brussels II Convention (which also applied to counterclaims in parental responsibility proceedings). Aside from a narrowing of scope to matrimonial proceedings only, Art. 4 Brussels IIter is otherwise identical in substance to Art. 5 of the Brussels II Convention (and to Art. 5 Brussels II Regulation and Art. 4 Brussels IIbis).5

2

Art. 4 Brussels IIter echoes the indirect ground of jurisdiction (or recognition criterion) laid out in Art. 4 of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.

3

III. Scope of application and impact Art. 4 Brussels IIter confers jurisdiction only where both the original claim and the counterclaim fall within the scope of the Regulation.6 It follows that Art. 4 Brussels IIter will not confer jurisdiction for a counterclaim for maintenance in circumstances where the original claim is for divorce7 – but Art. 4 would provide jurisdiction for a later cross-claim for nullity or separation.8

4

Parental responsibility claims are “within the scope of this Regulation” but it is assumed that coun- 5 terclaims for parental responsibility orders are not encompassed by Art. 4 Brussels IIter.9 This assumption can be justified, firstly on the basis that Art. 4 Brussels IIter falls within a section (chapter II, section 1) entitled “divorce, legal separation and marriage annulment”, and secondly, because the inclusion of parental responsibility counterclaims under Art. 4 Brussels IIter would undermine the specific allocation of parental responsibility jurisdiction laid out in the next section (chapter II, section 2). In this section, entitled “parental responsibility”, jurisdiction depends on proximity to the child and the child’s best interests, neither of which is a consideration under Art. 4 Brussels IIter. Unlike Art. 3 Brussels IIter, which is confined to the allocation of international jurisdiction, and does not determine internal jurisdiction, Art. 4 Brussels IIter specifies the exact court enjoying competence under that provision – namely, the court already seised of the original action.10 In order for Art. 4 Brussels IIter to come into play, the original court must be seised at the time of the counterclaim; however, under the principle of perpetuatio fori it is irrelevant that the original claim is subsequently withdrawn.11

6

Art. 4 Brussels IIter makes specific reference to proceedings “pending on the basis of Art. 3”, and so it follows that Art. 4 Brussels IIter is inapplicable where the initial proceedings were commenced under Art. 6 Brussels IIter using national residual rules of jurisdiction.12

7

Because Art. 3 Brussels IIter would, in any event, provide jurisdiction for most of the counterclaims captured by Art. 4 Brussels IIter, Art. 4 is of limited significance in practice.13

8

5 There have been some very slight changes in wording: eg the court “before which” (instead of “in which”), “falls” within the scope (instead of “comes” within the scope) – but no change in meaning. 6 Report Borrás, para. 42. 7 See Art. 1(4)(e) Brussels IIter where it is confirmed that maintenance obligations are outside of the scope of the Regulation. In such a case, jurisdiction to bring a maintenance counterclaim would have to be assessed under the Maintenance Regulation (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 2009 L7/1). 8 Asser Institute (fn. 4), p. 57; Großerichter (fn. 4), pp. 60–61; Hausmann (fn. 4), pp. 255–256. 9 Großerichter (fn. 4), p. 60; Hausmann (fn. 4), p. 256. 10 Großerichter (fn. 4), p. 59; Hausmann (fn. 4), p. 256. 11 Großerichter (fn. 4), p. 61. 12 See Art. 6 Brussels IIter discussed infra. 13 Großerichter (fn. 4), p. 59.

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Art. 5 Brussels IIter Conversion of legal separation to divorce

Article 5 Conversion of legal separation to divorce Without prejudice to Article 3, a court of a Member State that has given a decision granting a legal separation shall also have jurisdiction to convert that legal separation to a divorce, if the law of that Member State so provides.

I. Preliminary remarks 1

Like Art. 4 Brussels IIter, Art. 5 Brussels IIter creates an additional form of derivative jurisdiction.1

2

Some of the national legal systems within the EU have allowed for the conversion of separation into divorce,2 while others have not. Where this is a possibility within a national legal order (or under the lex causae),3 the court which previously issued a legal separation, has an ongoing jurisdiction to convert that separation into a divorce under Art. 5 Brussels IIter. Thus, a spouse may return to that court to apply for a conversion even if the couple have long since severed their ties with that Member State so that Art. 3 Brussels IIter is no longer satisfied there.

3

Art. 5 Brussels IIter promotes procedural economy and convenience in allowing spouses to continue and complete their matrimonial status proceedings within a single national legal order, even in circumstances where their personal connections have changed.

II. Legislative history 4

The text of Art. 5 Brussels IIter derives from Art. 6 of the Brussels II Convention. There have been some very minor alterations to the language of the provision4 but, in substance, Art. 5 Brussels IIter is identical to Art. 6 of the Brussels II Convention (and to Art. 6 Brussels II Regulation and Art. 5 Brussels IIbis).

5

Art. 5 Brussels IIter echoes the indirect ground of jurisdiction (or recognition criterion) laid out in Art. 5 of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.

III. Scope of application and impact 6

As indicated above, Art. 5 Brussels IIter is applicable only within those Member States offering both legal separation and conversion either under domestic law, or under the applicable foreign law.5 Art. 5 Brussels IIter is “without prejudice to Art. 3” and so an applicant, may choose, at their discretion whether to return to the court with Art. 5 Brussels IIter jurisdiction, or to apply for conversion in another Member State court offering this possibility and with Art. 3 Brussels IIter jurisdiction.6 In the alternative, the applicant may be able to apply for a stand-alone divorce in another Member State with jurisdiction under Art. 3 Brussels IIter.7

1 Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010), p. 148; Report Borrás, para. 43. 2 E.g. France and Portugal. See Commission Staff Working Paper, Annex to the Green Paper on Applicable Law and Jurisdiction in Divorce Matters, SEC (2005) 331, pp. 15–16 for a list of the Member States with laws permitting of conversion (in 2005); also https://e-justice.europa.eu/content_divorce-45-en.do. 3 See Großerichter in Althammer (ed.), Brussels IIa: Rome III (2019) 62–63; Hausmann in Corneloup (ed.), Droit Européen du Divorce/European Divorce Law (2013) 258; also Art. 9 Rome III (Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation OJ 2010 L343/10). 4 Eg “a decision granting a legal separation” (instead of “a judgment on a legal separation”); “jurisdiction to convert that legal separation to a divorce” (instead of “jurisdiction for converting that judgment into a divorce”). 5 Asser Institute, Regulation Brussels IIbis: Guide for Application (2018), p. 58. 6 Großerichter (fn. 3), p. 62. 7 Hausmann (fn. 3), p. 258.

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Art. 6 Brussels IIter

Like Art. 4 Brussels IIter, Art. 5 Brussels IIter is not only a rule of international jurisdiction – but also a rule of internal jurisdiction: the court with Art. 5 jurisdiction is the specific court which pronounced the legal separation and no other court is competent under Art. 5 Brussels IIter.8

7

Unlike Art. 4 Brussels IIter, Art. 5 Brussels IIter does not, by its own wording, link this form of derivative jurisdiction to a previous invocation of Art. 3 Brussels IIter jurisdiction. It may follow that Art. 5 Brussels IIter can come into play where a legal separation was previously pronounced by a court with jurisdiction under Art. 6 Brussels IIter, the national residual rules.9

8

Art. 5 Brussels IIter is of limited practical importance – because it only confers jurisdiction to deal with conversions – and is relevant only where the original grounds for separation jurisdiction have ceased to exist.10

9

Article 6 Residual jurisdiction 1. Subject to paragraph 2, where no court of a Member State has jurisdiction pursuant to Article 3, 4 or 5, jurisdiction shall be determined, in each Member State, by the laws of that State. 2. A spouse who is habitually resident in the territory of a Member State; or a national of a Member State, may be sued in another Member State only in accordance with Articles 3, 4 and 5. 3. As against a respondent who is not habitually resident in and is not a national of a Member State, 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. I. Preliminary remarks . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

1 5

III. Scope of application and impact . . . . . . . 10 1. Art. 6(1) . . . . . . . . . . . . . . . . . . . . . . 10

2. Art. 6(2) . . . . . . . . . . . . . . . . . . . . . . 13 3. Art. 6(3) . . . . . . . . . . . . . . . . . . . . . . 18 IV. Future reform of Art. 6 Brussels IIter . . . . 21

Bibliography: Großerichter, Jurisdiction: Section 1: Divorce, Legal Separation and Marriage Annulment, in: Althammer (ed.), Brussels IIa: Rome III (2019), p 64; Hausmann, New International Procedure Law in Matrimonial Matters in the European Union [2000/01] (4) EuLF 271; Kruger/Samyn, Brussels II bis: Successes and Suggested Improvements, (2016) 12 J.PIL 132; McEleavy, The Communitarization of Divorce Rules: What Impact for English and Scottish Law? (2004) 53 ICLQ 605; Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010); Ricci, Jurisdiction in Matrimonial Matters, in: Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of the Brussels IIa Regulation in National Courts (2018), 39; Sellens/Alonso/Siaplaouras, Jurisdiction, in: Viarengo/Villata (eds.), Planning the Future of Cross-Border Families: A Path Through Coordination (2020), p. 163; Schack, The New International Procedure in Matrimonial Matters in Europe, (2002) 4 Eur. J. L. Reform 37; Trimmings, Matrimonial Matters under the Brussels IIa Regulation, in: Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 803.

I. Preliminary remarks Under Art. 6 Brussels IIter, Member States are given some latitude to apply national rules of residual jurisdiction in divorce, annulment and separation cases. These residual rules can come into play where there is no jurisdiction under Arts. 3, or 4, or 5 Brussels IIter in any Member State (Art. 6(1) Brussels IIter) – but subject to a special shield for respondents who are nationals of other Member States 8 Großerichter (fn. 3), p. 62; Hausmann (fn. 3), p. 259. 9 Asser Institute (fn. 5), p. 58; Hausmann (fn. 3), pp. 257–259. 10 Großerichter (fn. 3), p. 62.

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1

Art. 6 Brussels IIter Residual jurisdiction (Art. 6(2) Brussels IIter). The aim of this “shield” is to protect Member State nationals from an exorbitant forum actoris in another Member State1 – but it is assumed that an action in the forum of the respondent’s own nationality will be acceptable to that respondent.2 2

Under Art. 6(3) Brussels IIter, Member State nationals who are habitually resident in another Member State (but not yet qualified under Art. 3 Brussels IIter) may have recourse to the local residual rules on an equal footing with nationals of that Member State. This extension of residual jurisdiction is assumed to be an expression of the EU principle of non-discrimination on grounds of nationality.3

3

In practice, approximately half of the Member States have provided for residual jurisdiction based on single-party nationality alone.4 In Ireland, single-party domicile is the residual ground.5 In other Member States, residual jurisdiction is based on various criteria, including: single-party nationality plus proof of a “close relationship” to the forum; forum necessitatis; and previous common habitual residence.6 Some of the Member States offering residual jurisdiction based on single-party nationality, also allow for residual jurisdiction based on other criteria (i.e. offer multiple bases for residual jurisdiction).7 This variation in the residual jurisdiction grounds may result in “unequal access to justice”8 across the EU.

4

Arts. 6 and 7 Brussels IIbis, the forerunners of Art. 6 Brussels IIter, were variously criticised as “complex”,9 “impractical”,10 “problematic”11, “convoluted”12 and as a source of “confusion”.13 Indeed the EU Commission acknowledged such difficulties14 but (as discussed above in relation to Art. 3 Brussels IIter) it anticipated political opposition to any significant reform of matrimonial jurisdiction under Brussels IIter.15 As will be seen, Art. 6 Brussels IIter offers an element of structural reform, but in substance the pre-existing residual jurisdiction regime – with its many attendant difficulties – has been carried over into the new Regulation 2019/1111.

1 Großerichter in Althammer (ed.), Brussels IIa: Rome III (2019), 67; European Commission, Impact Assessment Accompanying the Document 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), SWD (2016) 207 final, pp. 25, 27, 29; McEleavy, (2004) 53 ICLQ 605, 611–613. 2 Großerichter (fn. 1), p. 68; Hausmann, (2000/01) (4) EuLF 271, 279; Ní Shúilleabháin, Cross-Border Divorce Law: Brussels II bis (2010), 157. 3 Ricci in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction: A Handbook on the Application of the Brussels IIa Regulation in National Courts (2018), 58; Ní Shúilleabháin (fn. 2), p. 162; McEleavy (fn. 1), p. 615. 4 Nuyts, Study on Residual Jurisdiction: General Report (2007), pp. 95–97 accessible at https://gavclaw.files.word press.com/2020/05/arnaud-nuyts-study_residual_jurisdiction_en.pdf. 5 Nuyts (fn. 4), p. 97. 6 Nuyts (fn. 4), p. 96. For a detailed survey of the residual grounds (as they stood in 2006), see also EPEC, Study to Inform a Subsequent Impact Assessment on the Commission proposal on jurisdiction and applicable law in divorce matters (2006), p. 126 ff. accessible at https://www.euromed-justice.eu/en/system/files/ 20090707140842_Studytoinform.ontheCommissionproposalonjurisdictionandapplicablelawindivorcematters. pdf. 7 Nuyts (fn. 4), pp. 96–97. 8 European Commission, 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 judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 COM (2014) 225 final, p. 8. 9 Trimmings in Beaumont/Danov/Trimmings/Yüksel (eds), Cross-Border Litigation in Europe (2017), 808–809; Ní Shúilleabháin (fn. 2), p. 156. 10 Impact Assessment (fn. 1), p. 24 referring to feedback from national experts and practitioners. 11 Asser Institute, Regulation Brussels IIbis: Guide for Application (2018), p. 61; Sellens/Alonso/Siaplaouras in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families: A Path Through Coordination (2020), 167; Borrás, (2015) 1 NIPR 3, 8. 12 Sellens/Alonso/Siaplaouras (fn.11), p. 168. 13 Ricci (fn. 3), p. 56; also Kruger/Samyn, (2016) 12 J.PIL 132, 139. 14 European Commission, Green Paper on Applicable Law and Jurisdiction in Divorce Matters COM (2005) 82 final, 5; European Commission Report (fn. 8), p. 5. 15 Impact Assessment (fn. 1), pp. 13–33.

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II. Legislative history Art. 6 Brussels IIter derives from Arts. 7 and 8 of the Brussels II Convention (subsequently Arts. 7 and 8 Brussels II Regulation, and most recently Arts. 6 and 7 Brussels IIbis). It follows that the new Art. 6 Brussels IIter amalgamates what were two separate provisions in all of the predecessor instruments. Art. 6(1) Brussels IIter corresponds with what was Art. 7(1) Brussels IIbis, Art. 6(2) Brussels IIter with Art. 6 Brussels IIbis, and Art. 6(3) Brussels IIter with Art. 7(2) Brussels IIbis. Art. 6(1) Brussels IIter is now expressed to be “subject to” Art. 6(2), but otherwise there has been no material change in the wording.16

5

This amalgamation is helpful in clarifying the scope and impact of what is now Art. 6(2) Brussels IIter, previously Art. 6 Brussels IIbis. It had been assumed by some that this provision was intended to delimit the scope of application of Art. 3, precluding its invocation in circumstances where the respondent was habitually resident outside of the EU and was not an EU national.17 The Court of Justice rejected this interpretation in Sundelind Lopez and confirmed that Art. 6 Brussels IIbis (now Art. 6(2) Brussels IIter) was intended to restrict the scope of application of Art. 7 Brussels IIbis, and not the scope of application of Art. 3 Brussels IIbis.18 Thus, the coalescence of Arts. 6 and 7 Brussels IIbis in the new Art. 6 Brussels IIter (and the use of the words “subject to” in Art. 6(1) Brussels IIter) are useful insofar as they reinforce the interpretation laid down in Sundelind Lopez, and dispel at least some of the confusion which previously existed in relation to Art. 6 Brussels IIbis.19

6

The internal order of the new provision is also to be welcomed: there was a view that Arts. 6 and 7 7 Brussels IIbis were in the wrong sequence – and that they made more sense when read in reverse, starting with Art. 7(1) Brussels IIbis (now Art. 6(1) Brussels IIter) and then moving onto Art. 6 Brussels IIbis (now Art. 6(2) Brussels IIter).20 The European Commission had previously proposed (in 2006) that Art. 6 Brussels IIbis be deleted 8 and Art. 7 Brussels IIbis replaced with a harmonised rule of subsidiary jurisdiction, allowing recourse (in default of jurisdiction under Arts. 3, 4 or 5 Brussels IIbis) to the jurisdiction of either spouse’s nationality, or to a forum where the spouses previously had their common habitual residence for three years or more21 (see this proposal discussed further below). These plans were subsequently abandoned because of opposition to the choice-of-law provisions included within the same proposal.22 The same residual jurisdiction reforms were once more under active consideration in 2014,23 but in 2016 were discarded yet again in anticipation of political disagreement.24 In its 2016 proposal for a recast of Brussels IIbis, the EU Commission had initially proposed that the 9 “shield” from residual jurisdiction, for respondents who are EU nationals, should be extended so that such respondents could not be pursued under residual grounds anywhere – not even in the Member State of which they are nationals.25 However, as seen above, in the final text of Brussels IIter, the original formulation is restored, and the “shield” extends only to residual jurisdiction in other Member States. Thus, such respondents can still be pursued under Art. 6 Brussels IIter in the Member State of which they are nationals. In the view of this author, the proposed extension of the “shield” would have exacerbated problems with jurisdictional exclusion (see this discussed below in relation to Art. 6(2) Brussels IIter) and so the reversion to the original “shield” was preferable.

16 There are no longer any references to “domicile”: but see Art. 2(3) Brussels IIter. 17 See Asser Institute (fn. 11), pp. 59–60 for a discussion of this theory; also the analysis of Art. 3 Brussels IIter, supra. 18 Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizaro (Case C-68/07) (2007) ECR I-10403. 19 See Asser Institute (fn. 11), p. 61; Trimmings (fn. 9), p. 809: the interaction of Arts. 6 and 7 Brussels IIbis continued to cause confusion even after the CJEU judgment in Sundelind Lopez. 20 Großerichter (fn. 1), pp. 65, 70, 72. 21 COM (2006) 399 final. 22 Impact Assessment (fn. 1), p. 8. 23 European Commission Report (fn. 8), pp. 5–6. 24 Impact Assessment (fn. 1), pp. 29–30. 25 See Art. 6(2) of the Proposal at COM (2016) 411 final.

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Art. 6 Brussels IIter Residual jurisdiction

III. Scope of application and impact 1. Art. 6(1) 10

Art. 6(1) Brussels IIter is intended to give primacy to the harmonised rules of jurisdiction set out in Arts. 3, 4 and 5 Brussels IIter and to preclude any exercise, in parallel, of national rules of jurisdiction.26 Such residual rules may be deployed only where there is no jurisdiction in any Member State under the harmonised rules. The time for assessing whether any Member State has jurisdiction “pursuant to Art. 3, 4 or 5” is assumed to be at the time of initiation of proceedings, and if those harmonised grounds are not satisfied at the outset, then residual jurisdiction may be established and it is irrelevant that an Art. 3 indent might subsequently be fulfilled elsewhere in the EU.27

11

It is implicit in Art. 6(3) Brussels IIter that Art. 6(1) Brussels IIter in referring to “jurisdiction pursuant to Art. 3, 4 or 5” is referring to jurisdiction from the perspective of a particular applicant – and not to jurisdiction to dissolve that applicant’s marriage more generally. This follows from the fact that Art. 6(3) Brussels IIter envisages the invocation of residual jurisdiction in circumstances where the applicant is habitually resident in a Member State – and therefore amenable to being pursued – as a respondent – under Art. 3 Brussels IIter. Thus, one should read Art. 6(1) Brussels IIter as a prohibition on the exercise of residual jurisdiction where a Member State court already has jurisdiction under Art. 3, 4 or 5 Brussels IIter over the applicant’s petition against the respondent.

12

Recital 34 confirms – in an apparent extension of Art. 6(1) Brussels IIter – that where jurisdiction under Art. 3, 4 or 5 Brussels IIter cannot be exercised due to diplomatic immunity in accordance with international law, jurisdiction can be exercised in accordance with national law in a Member State in which the person concerned does not enjoy such immunity.28 A related question is whether recourse to residual jurisdiction might also be permissible where a Member State court enjoys international jurisdiction under Art. 3, 4 or 5 Brussels IIter, but lacks subject-matter jurisdiction in the action at hand. In the past, this issue arose in the context of Maltese law, prior to the introduction of divorce there – but in contemporary discourse, the question is more likely to arise in the context of dissolution of same-sex marriages.29 2. Art. 6(2)

13

As discussed above, Art. 6(2) Brussels IIter offers EU citizens a “shield” against residual jurisdiction in other Member States. As the European Commission describes it, this rule “protects citizens of EU Member States … from some of the exorbitant jurisdiction grounds of national law”30 – and protects such respondents “from being sued ‘by surprise’ in a forum with which they have only weak or no connections”.31

14

Because residual jurisdiction is in any event precluded by the existence of jurisdiction under Art. 3, 4 or 5 Brussels IIter, this shield is relevant in only relatively limited circumstances32 – principally where spouses who are nationals of two different Member States are habitually resident outside of the EU. In such circumstances, each spouse is precluded from initiating proceedings using residual jurisdiction in their own Member State of origin – although each may pursue the other in the national courts of that other spouse.33 In Ireland, “domicile” is substituted for nationality, and those domiciled in Ireland (in the common law sense) are shielded from residual jurisdiction outside of Ireland.34 In applying Art. 6(2) Brussels IIter, therefore, it may be incumbent on other Member States to grapple with com26 See Großerichter (fn. 1), p. 66. 27 Großerichter (fn. 1), p. 72. 28 See M.P.A. v. L.C.D.N.M.T. (Case C-501/20) ECLI:EU:C:2022:619 paras 64–65. Recital 34 Brussels IIter replicates (with some linguistic changes) Recital 14 Brussels IIbis. 29 See the discussion under Art. 3 Brussels IIter, supra; also Art. 13 Rome III (Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation OJ 2010 L343/10). 30 Impact Assessment (fn. 1), p. 27. 31 Impact Assessment (fn. 1), p. 29. 32 Großerichter (fn. 1), p. 67. 33 This interpretation is confirmed by the EU Commission: see Impact Assessment (fn. 1), p. 25.

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mon law notions of domicile, in order to determine whether a respondent is domiciled in Ireland and therefore protected against residual jurisdiction in a continental Member State forum.35 On the face of it, Art. 6(2) Brussels IIter also offers a “shield” to respondents who are habitually resi- 15 dent in a Member State – but this “shield” is entirely redundant since Art. 3 jurisdiction is automatically established in such circumstances, and residual jurisdiction is in any event excluded under Art. 6(1) Brussels IIter.36 The existence of any Art. 6(2) “shield” must be determined at the date of initiation of proceedings,37 and under the principle of perpetuatio fori, residual jurisdiction, once established, cannot be affected by any subsequent acquisition of nationality in a Member State by the respondent.

16

In blocking certain uses of residual jurisdiction, Art. 6(2) Brussels IIter risks the jurisdictional disen- 17 franchisement of some Member State nationals living in a third country.38 If, in such circumstances, a petitioner’s national courts offer residual jurisdiction based on a spouse’s nationality, and the respondent’s national courts do not, the petitioner may find that no Member State court can exercise jurisdiction.39 Some have suggested that Art. 6(2) Brussels IIter might be disapplied in such circumstances, or a forum necessitatis implied40 – but these assumptions fly in the face of the express language of the Regulation.41 It is also postulated that the Art. 6(2) “shield” – as a protective rule – may be waived by the respondent as the intended beneficiary.42 The CJEU was recently asked to consider whether a denial of jurisdictional access under Art. 6(2) Brussels IIter (or its Brussels IIbis equivalent) was contrary to the right to a fair trial under Art. 47 of the Charter of Fundamental Rights but declined to answer the question as one which was hypothetical on the facts at hand.43 3. Art. 6(3) As indicated above, Art. 6(3) Brussels IIter allows nationals of other Member States to enjoy the same 18 access to residual jurisdiction as nationals of the forum, where those nationals of other Member States are habitually resident in the forum. This extension of residual jurisdiction is thought to be available to petitioners who are Irish nationals, but not to those who are Danish nationals (since Denmark is not bound by the Regulation).44 This extension is of limited practical significance since petitioners who are habitually resident in the forum state will soon be entitled to petition under Art. 3(a), fifth indent Brussels IIter. Nonetheless it may suit a petitioner to be able to apply for a divorce straight away (on the same terms as nationals of the forum) without having to complete a full year of (habitual) residence. By its own wording, the Art. 6(3) extension only applies where the action is “against a respondent 19 who is not habitually resident in and is not a national of a Member State”. The exclusion of residual jurisdiction against a respondent habitually resident in a Member State is already implicit under 34 See Art. 2(3) Brussels IIter. It is assumed that “habitual residence” and “nationality” and “domicile” have the same meaning under Art. 6 Brussels IIter as they have under Art. 3 Brussels IIter (Großerichter [fn. 1], p. 67): see the discussion of these connecting factors in the context of Art. 3 Brussels IIter supra. 35 Ní Shúilleabháin (fn. 2), p. 157. Other Member States may also be required to engage with common law domicile in applying Art. 6(1) Brussels IIter: eg if it is alleged that residual jurisdiction is precluded because the Irish courts have jurisdiction under Art. 3(b) Brussels IIter (or under the last indent of Article 3(a) Brussels IIter). 36 Großerichter (fn. 1), p. 67. 37 Hausmann (fn 2), p. 278; Großerichter (fn. 1), pp. 67–68. 38 Großerichter (fn. 1), p. 69. 39 See Impact Assessment (fn. 1), pp. 24–25 for a worked example. 40 See Sellens/Alonso/Siaplaouras (fn. 11), p. 167; Großerichter (fn. 1), p. 69. 41 Ní Shúilleabháin (fn. 2), p. 160; Großerichter (fn. 1), pp. 69–70. 42 Großerichter (fn. 1), p. 70. 43 M.P.A. v. L.C.D.N.M.T. (fn. 28) paras. 114–116. 44 Großerichter (fn. 1), pp. 72–73; also McEleavy (fn. 1), p. 615. While Art. 2(3) Brussels IIter provides for the substitution of “nationality” with “domicile” where Ireland is concerned and for the purposes of Art. 6 Brussels IIter, it is clear from the predecessor provisions that “any national of a Member State”, in what is now Art. 6(3) Brussels IIter, was not to be substituted in this way.

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Art. 6 Brussels IIter Residual jurisdiction Art. 6(1) Brussels IIter (since Art. 3 jurisdiction is established in these circumstances) and so these words are superfluous. The condition that the respondent is not a Member State national is however curious: one might assume that this is simply a reminder of the Art. 6(2) “shield”45 – but it goes further insofar as it appears to block any extension of residual jurisdiction even if the respondent is a national of the forum and would not enjoy the Art. 6(2) “shield”. This may however reflect the fact that a national of the forum would not be entitled to invoke residual jurisdiction against another national of the forum – but rather the jurisdiction would be under Art. 3(b) Brussels IIter. Also insofar as the nationality of the respondent will often, of itself, confer residual jurisdiction, the non-availability of the Art. 6(3) extension of forum actoris as against such nationals of the forum will often be inconsequential.46 20

In many Member States, as has been seen, the applicant’s forum nationality will give rise to residual jurisdiction – and the Art. 6(3) extension is assumed to apply in such Member States.47 And so it follows that if an applicant’s French nationality triggers residual jurisdiction in France, a Dutch national who becomes habitually resident in France, will be able to apply for divorce straight away (just like a French national) – assuming the other spouse is a third country national. It is however unclear whether Art. 6(3) Brussels IIter can have any relevance where residual jurisdiction is not connected to forum nationality – but rather is based on another criterion such as common law domicile. It seems not.48

IV. Future reform of Art. 6 Brussels IIter 21

As discussed above, the European Commission previously proposed the replacement of what is now Art. 6 Brussels IIter with a harmonised subsidiary jurisdiction rule, giving default jurisdiction to the forum of either spouse’s nationality – or to a forum where the spouses previously had their common habitual residence for more than three years. This proposal had much to commend it. It would have dispelled the confusion and obfuscation of Arts. 6 and 7 Brussels IIbis – and would have provided a uniformity and transparency and simplicity which was sorely lacking in those provisions. Art. 6 Brussels IIter offers a clearer structure than before – but the substance of the rules on residual jurisdiction remain the same as under Brussels IIbis – with its “difficult delineation between European and national rules”.49 The 2006 Proposal would have eliminated the exposure to the idiosyncrasies of the individual national systems and would have potentially offered a default forum to which both spouses were connected. Also, from a third-country perspective, the discontinuation of a system which overtly favours and protects EU citizens, at the expense of non-EU nationals, would have been a very welcome change.50

22

In the alternative (or perhaps in addition to a subsidiary jurisdiction rule along the lines proposed by the Commission in 2006), the Brussels IIter Regulation could be amended to include a forum necessitatis rule51 to avoid a jurisdictional vacuum and to cater for exceptional cases.52 In its 2016 Impact Assessment, the European Commission acknowledged the desirability of a jurisdictional safety-net of this kind.53 If a forum necessitatis could be introduced – along with provision for jurisdiction by

45 Großerichter (fn. 1), p. 73. 46 Großerichter (fn. 1), p. 73. 47 Großerichter (fn. 1), p. 73; Hill/Ní Shúilleabháin, Clarkson and Hill’s Conflict of Laws (5th ed., 2016), p. 415; Ní Shúilleabháin (fn. 2), p. 162. 48 McEleavy (fn. 1), p. 615; Großerichter (fn. 1), p. 74. 49 Kruger/Samyn (fn. 13), p. 140. 50 Ní Shúilleabháin, (2010) 59 ICLQ 1021, 1045; Schack, (2002) Eur. J. L. Reform 37, 54; McEleavy (fn 1), pp. 614–615. 51 On the nature of forum necessitatis, see Franzina in Viarengo/Villata (fn. 11), p. 325. 52 Asser Institute, Recommendations to Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union (2018), pp. 61–62 accessible at https://www.asser.nl; Kruger/Samyn (fn. 13), p. 140; Sellens/Alonso/Siaplaouras (fn. 11), pp. 169–170; Borrás (fn. 11), p. 8. 53 Impact Assessment (fn. 1), pp. 27–28.

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agreement under Art. 354 (including for expatriate Member State nationals living outside the EU) – then Art. 6 Brussels IIter could probably be removed without providing for any kind of harmonised subsidiary jurisdiction.55

Section 2 Parental responsibility (Art. 7–Art. 16)

Article 7 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 seised. 2. Paragraph 1 of this Article shall be subject to Articles 8 to 10. I. Synopsis . . . . . . . . . . . . . . . . . . . . . . II. The general rule for proceedings concerning parental responsibility – Art. 7(1) Brussels IIter . . . . . . . . . . . . . . . . . . . . . . 1. Synopsis and rationale . . . . . . . . . . . . . 2. Normative contents . . . . . . . . . . . . . . . 3. Duty to provide access to justice . . . . . . . 4. Preconditions for application . . . . . . . . . a) General remarks . . . . . . . . . . . . . . . b) Proceedings concerning parental responsibility . . . . . . . . . . . . . . . . . c) Parental responsibility must concern a child . . . . . . . . . . . . . . . . . . . . . . 5. The concept of habitual residence . . . . . . a) General remarks . . . . . . . . . . . . . . . b) Habitual residence as expression of a certain level of family and social integration on the part of the child . . . . . . . . . . . aa) General remarks . . . . . . . . . . . . . bb) Taking account of actual and subjective aspects . . . . . . . . . . . . cc) Physical presence . . . . . . . . . . . . dd) Further criteria . . . . . . . . . . . . . ee) Stability, voluntary nature, permissibility and legality . . . . . . . . . . . .

1

3 3 9 11 12 12 13 17 19 19 26 26 28 29 41

6. Examination as to the existence of habitual residence . . . . . . . . . . . . . . . . . . . . . 7. Effect of an interruption to habitual residence . . . . . . . . . . . . . . . . . . . . . 8. On more than one habitual residence . . . . 9. Consequences when habitual residence cannot be determined . . . . . . . . . . . . . . 10. Consequences when habitual residence does not exist . . . . . . . . . . . . . . . . . . . . . . 11. The time determining the existence of habitual residence . . . . . . . . . . . . . . . . a) General remarks . . . . . . . . . . . . . . . b) The principle of perpetuatio fori . . . . . . c) Legal consequences of the application of the principle of perpetuatio fori . . . . . . 12. Consequences of establishing habitual residence after the court has been seised . . . . . 13. Relocation of habitual residence from a Member State to a third country . . . . . . . 14. Relocation of habitual residence from a third country to a Member State . . . . . . . III. Other jurisdictions (Art. 7(2) Brussels IIter)

49 51 52 54 55 56 56 57 61 63 65 68 69

44

Bibliography: Andrae, Zur Abgrenzung des räumlichen Anwendungsbereichs von EheVO, MSÜ, KSÜ und autonomem IZPR/IPR, IPRax 2006, 82; Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in: Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020), p. 13; Baetge, Zum gewöhnlichen Aufenthalt bei Kindesentführungen, IPRax 2001, 573; Baetge, Kontinuierlicher, mehrfacher oder alternierender gewöhnlicher Aufenthalt bei Kindesentführungen, IPRax 2005, 335; Basedow, das Staatsangehörigkeitsprinzip in der Europäischen Union, IPRax 2011, 109; Bawadkji, Die Berücksichtigung des Kindeswohls im Zusammenhang mit der Scheidung (2012); Boele-Woelki, Brüssel II: Die Verordnung über die Zuständigkeit und die Anerkennung von Entscheidungen in Ehesachen, ZfRV 2001, 121; Boele-Woelki/Jänterä-Jareborg, Protecting childen against detrimental family environments under the 1996 Hague Convention and the Brussels IIteris regulation, in: Boele-Woelki/Einhorn/Girsberger/Symeonides, Convergence and divergence in private international law – Liber amicorum Kurt Siehr (2010), p. 125; Breuer, Gemeinsame elterliche Sorge – Geltung 54 See the discussion of jurisdiction agreements under Art. 3 Brussels IIter, supra. 55 See Ní Shúilleabháin (fn. 2), pp. 164–165 on the negative implications of using single-party nationality as a subsidiary connecting factor.

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Art. 7 Brussels IIter General jurisdiction für ausländische Staatsangehörige in Deutschland, FPR 2005, 74; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Bucher, Das Kindeswohl im Haager Entführungsabkommen, in FS Kropholler (2008), p. 263; Büren, Das auf die Regelung der elterlichen Sorge anwendbare Recht (2010); Christensen/Alvino, Auswirkungen der Brüssel IIa-Verordnung auf internationale Kindesentführungen, in FS Kay Nehm (2006), p. 41; Coester, Kooperation statt Konfrontation: Die Rückgabe entführter Kinder nach der Brüssel IIa-Verordnung, in FS Schlosser (2005), p. 135; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Dutta, Europäische Zuständigkeiten mit Kindeswohlvorbehalt, in FS Kropholler (2008), p. 281; Dutta/Schulz, Erste Meilensteine im europäischen Kindschaftsverfahrensrecht: Die Rechtsprechung des Europäischen Gerichtshofs zur Brüssel-IIa-Verordnung von C bis Mercredi, ZEuP 2012, 526; Finger, Internationale gerichtliche Zuständigkeiten in kindschaftsrechtlichen Streitverfahren nach Brüssel IIa, FamRBInt 2005, 13 und 36; Fleige, Die Zuständigkeit für Sorgerechtsentscheidungen und die Rückführung von Kindern nach Entführung nach europäischem IZVR, 2006; Gampp, Perpetuatio fori internationalis im Zivilprozess und im Verfahren der freiwilligen Gerichtsbarkeit (2010); Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in: Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022) p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die perpetuatio fori im Spannungsfeld von EuEheVO und Haager Kinderschutzabkommen, IPRax 2013, 441; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Heindler, Vorrang des Haager KSÜ vor der Brüssel IIa-VO, ÖJZ 2013, 527; HilbigLugani, Divergenz und Transparenz: Der Begriff des gewöhnlichen Aufenthalts der privat handelnden natürlichen Personen im jüngeren EuIPR und EuZPR, GPR 2014, 8; Hohloch, Feststellungsentscheidungen im Eltern-KindVerhältnis, IPRax 2010, 567; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (2008); Holzmann, Verfahren betreffend die elterliche Verantwortung nach der Brüssel IIa-VO, FPR 2010, 497; Kaller, Europaweite Durchsetzung von Obsorge- und Besuchsrecht, FamZ 2006, 37; Kaller, Zur Kindesentführung in der neuen Brüssel II-VO – ein Überblick über die Ergänzungen zum Haager Übereinkommen, FamZ 2006, 178; Klauser/Horn, Der Anwendungsbereich der Verordnung Brüssel IIa, iFamZ 2007, 168; Brüssel IIa-Verordnung in Kraft, ecolex 2004, 910; Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union (2006); Kropholler, Der gewöhnliche Aufenthalt des Kindes und das Aufenthaltsbestimmungsrecht, in FS Jayme (2004), p. 471; Kropholler, Europäisches Internationales Zivilverfahrensrecht ohne europäisches Kollisionsrecht – ein Torso. Das Beispiel der Kinderschutzmaßnahmen, in FS Schlosser (2005), p. 449; Loewe, Die Empfehlungen des Europarats zur Vereinheitlichung der Rechtsbegriffe „Wohnsitz“ und „Aufenthalt“, ÖJZ 1974, 144; Looschelders, Die Europäisierung des internationalen Verfahrensrechts für Entscheidungen über die elterliche Verantwortung, JR 2006, 45; Lowe, Gewöhnlicher Aufenthalt, internationale Kindesentführung und Brüssel II-Verordnung, FamZ 2006, 181; Lowe, Regulationg cross-border access to children, in FS Schwab (2005), 1153; Mankowski, Der gewöhnliche Aufenthalt eines verbrachten Kindes unter der Brüssel IIa-VO, GPR 2011, 209; Mayr, Neuigkeiten im Europäischen Zivilprozessrecht, Zak 2009, 223; Mosser, Internationale Kindesentführungen – eine differenzierte Betrachtung, juridikum 2006, 159; Motzer, Die Restzuständigkeiten deutscher Familiengerichte nach inländischem Verfahrensrecht, FamRBint 2007, 20; Nademleinsky, Die Stellung des Kindes bei der Entscheidung über Obsorge und Besuchsrecht im internationalen Vergleich, juridikum 2006, 147; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011/56, 85; Neumayr, Europäisches Zivilverfahrensrecht (Brüssel I/IIa ua), in: Eilmansberger/Herzig, Jahrbuch Europarecht 2008 (2008), 203; Niklas, Die europäische Zuständigkeitsordnung in Ehe- und Kindschaftsverfahren (2003); Pabst, Gerichtsstandsvereinbarungen im Sorgerechtsstreit?, in: Liber amicorum T. Rauscher (2005), p. 115; Pirrung, Auslegung der Brüssel IIa-Verordnung in Sorgerechtssachen – zum Urteil des EuGH in der Rechtssache C vom 27.11.2007, in FS Kropholler (2008), p. 399; Pirrung, Der gewöhnliche Aufenthalt des Kindes in internationalen Sorgerechtssachen, in FS Kühne (2009), 843; Pirrung, Gewöhnlicher Aufenthalt des Kindes bei internationalem Wanderleben und Voraussetzungen für die Zulässigkeit einstweiliger Maßnahmen in Sorgerechtssachen nach der EuEheVO, IPRax 2011, 50; Pirrung, Internationale Zuständigkeit in Sorgerechtssachen nach der Verordnung (EG) 2201/2003, in FS Schlosser (2005), p. 695; Pirrung, Brüche zwischen internationaler und europäischer Rechtsvereinheitlichung, Symposium für Ulrich Spellenberg (2006), 89; Pirrung, Zur perpetuatio fori in europäischen grenzüberschreitenden Sorgerechtssachen, in FS Kerameus (2009), p. 1037; Pirrung, Erste Erfahrungen mit dem Eilverfahren des EuGH in Sorgerechtssachen, in FS Spellenberg (2010), p. 467; Rathjen, Die Fortdauer der internationalen Zuständigkeit (perpetuatio fori internationalis) im Familienrecht – Überlegungen aus Anlass einer Ergänzung des FamFG-E, FF 2007, 27; Rausch, Elterliche Verantwortung – Verfahren mit Auslandsbezug vor und nach „Brüssel IIa“, FuR 2005, 53; Rauscher, Parental Responsibility Cases under the new Council Regulation „Brussels IIA“, EuLF 2005, I-37; Rutten, Perpetuatio fori in ouderlijk gesagskwesties, NIPR 2005, 11; Schulz, Das Haager Kindesentführungsübereinkommen und die Brüssel IIa-Verordnung, in FS Kropholler (2008), p. 435; Schulz, Internationale Regelungen zum Sorge- und Umgangsrecht, FPR 2004, 299; Schütz, Zwischenstaatliche Vereinbarungen, die für Familienrichter bedeutsam sein könnten, RZ 2005, 234; Schwimann, Das Haager Minderjährigenschutzabkommen und seine Anwendung in Österreich, JBl 1978, 233; Siehr, Das neue Haager Übereinkommen von 1996 über den Schutz von Kindern, RabelsZ 62 (1998) 465; Siehr, Kindesentführung und EuEheVO, IPRax 2012, 316; Siehr, Die Eheverordnung von 2003 und das MSA von 1961. „Reform“ des MSA durch Überlagerung durch die Eheverordnung, in FS Schwab (2005), p. 1267; Siehr, Zum persönlichen Anwendungsbereich des Haager Kindesentführungsübereinkommens von 1980 und der EuEhe-

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VO – „Kind“ oder „Nicht-Kind“ – das ist hier die Frage, IPRax 2010, 583; Simotta, Die internationale Zuständigkeit für Ehesachen nach der EheVO, in FS Geimer (2002), p. 1144; Simotta, Die internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung für die gemeinsamen Kinder der Ehegatten (Art. 3 f. EheVO), in FS Jelinek (2002), p. 291; Solomon, “Brüssel IIa” – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Spellenberg, Die Annexzuständigkeit nach Art. 3 EheVO, in FS Sonnenberger (2004), p. 679; Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel-Verordnung, IPRax 2001, 73.

I. Synopsis Art. 7(1) Brussels IIter lays down that the courts of the Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State. The connection to habitual residence corresponds to Art. 1 of the PIC and Art. 5 of the PCC. In contrast to this (and in contrast to Art. 4 of Brussels Ia), the residence of the defendant or respondent does not determine the matter. Even the nationality of the child by itself has no significance for determining which state has international jurisdiction (unlike Art. 3 of the PIC).1 Nationality is only significant, even if only in a very limited manner, in the context of Art. 10(1) Brussels IIter and Art. 12(4) Brussels IIter (see Art. 10 note 16 and 17 [Garber] as well as Art. 12 note 31 [Garber]) as well as for determining habitual residence (see Art. 7 note 37 [Garber]) (here as part of overarching considerations).2

1

Art. 7(2) Brussels IIter establishes the relationship of the provision on jurisdiction contained in Art. 7(1) Brussels IIter to Arts. 8 to 10 Brussels IIter.

2

II. The general rule for proceedings concerning parental responsibility – Art. 7(1) Brussels IIter 1. Synopsis and rationale Under Art. 7(1) Brussels IIter the courts of the state in which the child is habitually resident at the time the court is seised has international jurisdiction. This is to ensure (at least usually) that the court that is most familiar with the matter makes the decisions.3 The courts of the state in which the child’s habitual residence is located are usually the ones that are able to clarify the child’s family and social circumstances the quickest and easiest.4 These courts can act the quickest5 and can decide the matter based on their proximity to the matter and the evidence without the delays that would arise by taking evidence across borders, for example.6

1 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 1; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 1; Nademleinsky, EF-Z 2008, 158; Rausch, FuR 2005, 53, 56; OLG Hamm, IPRspr 2014/99. 2 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 1; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 3; cf. in contrast LGZ Wien 45 R 403/10p EFSlg 128.310 and LGZ Wien 42 R 154711z EFSlg 132.090, according to which nationality is irrelevant for jurisdiction under Article 8 of the Brussels IIa Regulation. 3 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 1; Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO notes 6/10 et seqq; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 1; cf. also Jasna Deticˇek v. Maurizio Sgueglia (C-403/09), ECLI:EU:C: 2009:810 and Child and Family Agency v. J. D. (C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 4 Coester-Waltjen, FamRZ 2005, 241, 242; Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1; in this sense also Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 6. 5 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1; Hausmann, Familienrecht2, F note 82; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 6. 6 Cf also Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/3; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 6.

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This provision on jurisdiction also serves to protect the child.7 The child can be heard by the court directly without having to make a potentially burdensome international journey to the court. The child can usually speak the language of the state in which it is habitually resident, which means that the child can be heard by the court without an interpreter having to be employed. Thus, when the courts of the state where he or she is habitually resident have jurisdiction, this considerably reduces the burden of the proceedings on the child.8

5

Furthermore, this facilitates any communication that may be necessary between the competent courts and the youth welfare office, the child and youth welfare authorities and other state agencies.9

6

Since the conflict of laws often takes the child’s habitual residence as the starting point, Art. 7 Brussels IIter creates a synchronisation of forum and law. Hence, taking the habitual residence of the child as the starting point also ensures the proximity of law to the matter.10 The courts of the state in which the child’s habitual residence is located are able to make a decision on the matter without having to apply foreign law. For this reason they can decide on the matter the quickest.

7

Fleige11 also gives the provision’s easy approach as the reason for this; however, determining habitual residence in practice can cause considerable difficulties.12

8

Art. 7 Brussels IIter is supplemented by Arts. 12 and 13 Brussels IIter. In exceptional cases and when it is in the child’s best interests, the provision allows for jurisdiction for the decision to be partly or wholly transferred to another court. In this way, if the child is absent from the state in which he or she is habitually resident, for example, jurisdiction may be transferred to another Member State in order to take account of the best interests of the child and the geographical and functional proximity of the state on a case-by-case basis. See the commentary on Arts. 12 and 13 Brussels IIter. 2. Normative contents

9

Art. 7 Brussels IIter only regulates international jurisdiction (“the courts of a Member State”).13 This is because the provision only takes habitual residence in a Member State of the Regulation as its starting point and not any particular place in a Member State. In the absence of an autonomous rule in EU law, geographical and functional jurisdiction are determined by national law14.

10

Nor is functional jurisdiction laid down autonomously in EU law so that in this regard the rules of national law are to be applied.15 3. Duty to provide access to justice

11

The Member State in which the child is habitually resident has a duty to provide access to justice.16 Thus, the courts of this state may not decline jurisdiction merely because the courts of another Mem7 Cf also OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. 8 Coester-Waltjen, FamRZ 2005, 241, 242; Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1; Garber in Garber/ Lugani, Handbuch zur Brüssel IIb-VO note 6/2; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/ 2003 note 4; Hausmann, Familienrecht2, F note 82. 9 Coester-Waltjen, FamRZ 2005, 241, 242; Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 5; Hausmann, Familienrecht2, F note 82; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 6; cf. also OLG Karlsruhe, BeckRS 2015, 19394. Cf. also – but in a different context – OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky), according to which the proximity of a court of a Member State whose child protection authorities had already been concerned with the family’s affairs may be in the best interests of the children. 10 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 1. 11 Fleige, Zuständigkeit, p. 210. 12 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 7. 13 Kaller, iFamZ 2006, 37, 39; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 1; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1; Weber in Mayr, EuZVR note 4.111. 14 Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 2; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 1; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 2; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1. 15 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 2; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1.

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ber State seem to be closer to the facts of the matter with respect to making a decision. In the case, the only other option is a transfer of jurisdiction under Art. 12 Brussels IIter. 4. Preconditions for application a) General remarks The conditions for applying Art. 7 Brussels IIter are that the general preconditions have been met. 12 Hence, the matter must fall within the temporal (see Arts. 100 and 105 Brussels IIter and the commentary), the territorial and personal (see Introduction note 57 et seq. [Magnus/Mankowski]) and the functional (see Art. 7 note 12 [Garber] and Art. 1 note 67 et seq. [Pintens] and Art. 2 note 26 et seq.[Pintens]) scope of the Regulation; furthermore, the matter must exhibit a cross-border connection (see Introduction notes 2 and 25 [Magnus/Mankowski]). However, legal relations do not need to exist that exhibit a connection between more than one Member State.17 The cross-border connection is already established by the connection to a third country. b) Proceedings concerning parental responsibility The proceedings must concern parental responsibility;18 for the definition of this see Art. 1(2) Brus- 13 sels IIter as well as Art. 2(2) points 7 to 10 Brussels IIter and the commentary on it. It is irrelevant whether the courts of a state are seised for the first time or whether a decision already handed down is to be amended or adjusted.19 In the case of amending a decision, too, international jurisdiction is redetermined according to Art. 7(1) Brussels IIter (on the exception under Art. 8 IIb, see the commentary at that place).20 The child’s status in procedural law is not determinative in proceedings.21 Thus, Art. 7(1) Brussels IIter is to be applied regardless of whether the child is the applicant or respondent or defendant or plaintiff. Nor is the child’s being party to the proceedings itself determinative.22 Thus, Art. 7(1) Brussels IIter also applies where the parents or only one of the parents brings proceedings concerning parental responsibility – such as a decision on access.23

14

If the application concerns more than one child, international jurisdiction is to be examined for each 15 child independently.24 It follows from the wording that the habitual residence of the child, and not of one of the children or of the children, determines the matter.25 If a Member State has international jurisdiction based on the habitual residence of one of the children, no ancillary jurisdiction exists for other children whose habitual residence is not in this state.26 To avoid diverging decisions, in this case a transfer of jurisdiction under Art. 12 Brussels IIter to a court that is better placed to assess the case should be considered;27 this only applies, however, if the preconditions pursuant to Art. 12 Brus16 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 11; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 7; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1. In general Geimer, WM 1976, 830, 835. 17 DU v. XB (C-393/18 PPU), ECLI:EU:C:2018:835. 18 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 12. 19 OLG Hamm, IPRspr 2014/99. 20 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 3; Hausmann, Familienrecht2, F note 86; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 53; W und V v. X (C-499/15), ECLI:EU:C:2017:118; AG Leverkusen, IPRax 2008, 274. 21 Cf Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1. 22 Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1. 23 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 13; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 1. 24 Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4; Schäuble in Althammer, Brüssel IIaVO, Art. 8 Brüssel IIa-VO note 2; cf. also Bianca Purrucker v. Guillermo Vallés Pérez (C-296/10), ECLI:EU:C: 2010:665. 25 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 3 and note 8. 26 Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 2. 27 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 8; Hausmann, Familienrecht2, F note 84; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 2.

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Art. 7 Brussels IIter General jurisdiction sels IIer have been met (see Art. 12 notes 15 et seq. [Garber] for details). It should be noted, however, that the transfer of jurisdiction only leads to jurisdiction in the same Member State; whether it is actually the same court that decides the matter is determined by national law. 16

In contrast to this, in C-296/10 Bianca Purrucker v. Guillermo Vallés Pérez,28 the Spanish government took the view that in the case of twins (only) one joint habitual residence can exist so that they would only gain habitual residence in another state if both of them were to establish their habitual residence in that state. That the habitual residence of siblings is to be determined coherently cannot be derived from the Regulation.29 This even applies in the case of twins. Thus, the Spanish government’s view is not convincing.30 c) Parental responsibility must concern a child

17

Parental responsibility must concern “a child”. The term “child” is to be understood pursuant to Art. 2(2) point 6 Brussels IIter as any person below the age of 18 years.31 This autonomous definition in EU law creates a scope for the Regulation that is uniform across all Member States.

18

Whether the child’s parents are married or not32 is just as immaterial for the application Brussels IIter as the child’s nationality or that of the parents33 or holders of parental responsibility. 5. The concept of habitual residence a) General remarks

19

The Regulation does not contain a statutory definition of the concept of “habitual residence”. The term is to be interpreted autonomously in EU law.34 This ensures that jurisdiction is determined uniformly in all Member States. Accordingly, recourse may not be made to national law.35 Although the term “habitual residence” is also used in Art. 3 Brussels IIter as well as in other Regulations and in conventions, the term should not be interpreted as basically correlating. The term “habitual residence” has different meanings depending on its function in the specific norm (cf. recital 23 on Regulation 2012/ 650).36 The ECJ ruled in C-523/0737 that its case-law on the term “habitual residence” in other areas of EU law38 may not be transferred directly to determining habitual residence within the meaning Brussels IIter. The case-law and scholarship on the interpretation of habitual residence in other legislation may only be taken into account if the purpose of this legislation is the best interests of the child. The criteria that apply to habitual residence for adults do not match, or only match in part, the characteristics of habitual residence for children.39 Thus, ECJ case-law on habitual residence in employ28 29 30 31 32 33 34

35 36 37 38 39

Bianca Purrucker v. Guillermo Vallés Pérez (C-296/10), ECLI:EU:C:2010:665. Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 3 n 5. Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 14. On the legal situation after the Brussels IIteris siehe Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIaVO note 15. Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 1; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 3. Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 6; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 3. Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 3; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 14; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 22; Rieck in Schulz/Hauß, Familienrecht3, Art. 8 EheVO 2003 notes 5 et seq; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 4; Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU: C:2010:829; OL/PQ (C-111/17 PPU), ECLI:EU:C:2017:436. A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 17; Simotta in Fasching/Konecny, Kommentar V/22, Art. 3 EuEheKindVO note 28. A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). The following decisions are cited: Pedro Magdalena Fernández v. Kommission der Europäischen Gemeinschaften (C-452/93), ECLI:EU:C:1994:332, Roberto Adanez-Vega v. Bundesanstalt für Arbeit (C-372/02), ECLI:EU:C: 2004:705, Szymon Kozłowski (C-66/08), ECLI:EU:C:2008:437. OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565.

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ment or social security law may not be drawn on to interpret Art. 7(1) Brussels IIter.40 Nor is the term “habitual residence” within the meaning of Art. 3 Brussels IIter congruent with the term “habitual residence” within the meaning of Art. 7(1) Brussels IIter.41 In contrast, the scholarship and caselaw on Art. 1 of the PIC and Art. 5 of the PCC are to be noted in interpreting “habitual residence” within the meaning of Art. 7 Brussels IIter because the PIC and PCC also follow the same goals as Art. 7 f. Brussels IIter.42 It should be noted that the term “habitual residence” in the provisions Brussels IIter that concern parental responsibility should be interpreted uniformly.43 Agreements which establish which place is to be legally classified as the habitual residence are not determinative.44

20

In interpreting the term “habitual residence”, the principles of the best interests of the child and geographical proximity should be taken into account in particular (cf. recital 20 on Brussels IIter).45

21

According to the Borrás Report46, habitual residence should be interpreted within the meaning of 22 ECJ case-law on habitual residence in employment and social security law. Hence, “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence” is definitive. This interpretation – and in particular its strong emphasis on the element of intent – is not convincing.47 In C-523/0748 the ECJ rightly rejected the view of the Borrás Report. It is difficult to prove the intent to establish habitual residence in a place;49 furthermore, the intention to reside somewhere long-term presupposes the unrestricted (legal) capacity of the person to decide his or her own residence. If this capacity does not exist, according to this view it would not be possible to establish habitual residence,50 whereby considerable gaps in legal protection could arise.51 For these reasons, it seems more reasonable (in accordance with the Council of Europe Recommendation on the Unification of Domicile and Habitual Residence of 18/01/197252) to determine53 habitual residence exclusively according to factual criteria. Subjective aspects can only be taken into account as part of overarching considerations (see Art. 7 note 25 [Garber]).

40 Cf also Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 26; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 4. 41 Misleading OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436: “Further, in accordance with the Court’s caselaw, the meaning of the concept of ‘habitual residence’ in Regulation No 2201/2003 must be uniform.” 42 Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 8; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 4; Solomon, FamRZ 2004, 1409, 1411; Winkler von Mohrenfels, FPR 2001, 189, 190; OLG Stuttgart FPR 2013, 223; see also Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4 and Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11. 43 OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. 44 Baetge, IPRax 2001, 573, 577; Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 18; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 46. 45 Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 4; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 22; cf. also Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4. See also Jasna Deticˇek v. Maurizio Sgueglia (C-403/09), ECLI:EU:C:2009:810; HR (C-512/ 17), ECLI:EU:C:2018:513; UD v. XB (C-393/18 PPU), ECLI:EU:C:2018:835. 46 Art. 7 note 32 [Garber]. 47 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 23. See also Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 notes 7 and 14; cf. also OLG Karlsruhe, NJW-RR 2015, 1415 and LG Stuttgart, NJW 2012, 2043. 48 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 49 Cf also Simotta in Fasching/Konecny, Kommentar V/22, Art. 3 EuEheKindVO note 31. 50 Cf also Simotta in Fasching/Konecny, Kommentar V/22, Art. 3 EuEheKindVO note 32. 51 See also Simotta in Fasching/Konecny, Kommentar V/22, Art. 3 EuEheKindVO notes 38 et seq. 52 The German version is printed in, ÖJZ 1974, 144 et seqq. 53 Geimer in Geimer/Schütze, EuZVR4, Art. 3 VO (EG) Nr 2201/2003 note 31; Kaller, iFamZ 2006 37, 39; Kress, Zuständigkeit, p. 108; Simotta in Fasching/Konecny, Kommentar V/22, Art. 3 EuEheKindVO notes 41 et seqq; Tödter, Europäisches Kindschaftsrecht, p. 39; see also LG Stuttgart, NJW 2012, 2043; OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky); HR (C-512/17), ECLI:EU:C:2018:513; OLG Karlsruhe, NJW-RR 2015, 1415 and Niklas, Zuständigkeitsordnung, p. 65.

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Art. 7 Brussels IIter General jurisdiction 24

In C-289/2054 on the habitual residence of spouses, the ECJ ruled that the term “habitual residence” is characterised in principle by two factors: 1. The intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, 2. A presence which is sufficiently stable in the Member State concerned.

25

The literature concludes from this that both aspects are to be given the same weighting, at least abstractly55, or that habitual residence is composed of two parts of one set of factual circumstances.56 The ECJ57 seems to have diverged here from its past rulings (at least concerning the habitual residence of spouses), according to which more weight should be attached to the factual criteria in determining habitual residence. In C-289/20 note 52, however, the ECJ states that the concept of “habitual residence” reflects essentially a question of fact and it is for the referring court to verify on the basis of all the factual circumstances specific to the present case, whether the Member State of the national court seised corresponds to the place where the applicant is habitually resident, within the meaning of Art. 3(1)(a) of Brussels IIbis. According to the explanation in C-289/20 note 52, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place seems to be of subordinate importance. b) Habitual residence as expression of a certain level of family and social integration on the part of the child aa) General remarks

26

The habitual residence is an expression of a certain level of family and social integration on the part of the child58 and constitutes his or her primary place of residence.59 The habitual residence of a child is not determined according to the habitual residence of the holder of parental responsibility;60 accordingly, habitual residence is not derived from that of the parent who is caring for the child;61 rather, it is to be determined independently. Hence, the child may also be habitually resident in a state in which neither parent or other holder of parental responsibility resides.62 It is also possible for the child to be habitually resident in a state against the will of the holder of parental responsibility.63

27

Although the child has his or her own habitual residence, the habitual residence of the person who determines where the child resides and with whom the child actually resides is not entirely insignificant.64 The social and family environment of an infant or young child are determined by the person 54 55 56 57 58

59 60 61

62 63 64

IB/FA (C-289/20), ECLI:EU:C:2021:955 = NJW 2021, 3771 (Mankowski). Berner, FamRZ 2022, 219 (EAnm). Mankowski, NJW 2021, 3775 (EAnm). See references in Garber in Gitschthaler, IFR Art. 8 Brüssel IIa-VO Rz. 20 ff. Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54; Rauscher in Rauscher, EuZPR/ EuIPR IV4, Art. 8 Brüssel IIa-VO note 11; OGH 1 Ob 136/13a EF-Z 2014/63 (Nademleinsky); OLG Bamberg, FamRZ 2018, 38; C v. M (C-376/14 PPU), ECLI:EU:C:2014:2268; OL v. PQ (C-111/17 PPU), ECLI:EU:C: 2017:436; HR (C-512/17), ECLI:EU:C:2018:513. Dörner in Saenger, ZPO9, Art. 8 EuEheVO notes 4 and 5; Kress, Zuständigkeit, p. 108; OLG Stuttgart, FamFR 2012, 288 (Finger) = NJW 2012, 2043; HR (C-512/17), ECLI:EU:C:2018:513. Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 6; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 28; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 11. Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 8; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 7; Hausmann, Familienrecht2, F note 87 as well as note 95; Frank in Gebauer/Wiedmann, Zivilrecht3, Art. 8 EuEheVO note 2; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 notes 7 and 16; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 9; Weber in Mayr, EuZVR note 4.187; OLG Hamm, BeckRS 2011, 2278 = FamFR 2011, 480 (Rieck). Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 notes 7 and 16; BGH, FamRZ 1997, 1070 = NJW 1997, 3024 = NJWE-FER 1997, 282; BGH, FamRZ 2000, 1426. Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 8; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 12; Weber in Mayr, EuZVR note 4.187; cf. also OGH 2 Ob 78/09y iFamZ 2009/252 (Fucik). Tödter, Europäisches Kindschaftsrecht, p. 39; cf. A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; HR (C-512/17), ECLI:EU:C: 2018:513; OLG Hamm, BeckRS 2011, 2278 = FamFR 2011, 480 (Rieck).

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with whom the child actually resides.65 In general, the environment of a child of young age is mostly a family environment that is determined by the person or persons whom the child is attached to, whom it lives with, those who actually look after the child and take care of it. In this case, the habitual residence of the person whom the child actually resides with is important in determining the child’s habitual residence. As the child grows older, the habitual residence of the person whom the child actually resides with loses importance66 and other factors from his or her own environment gain importance67 (such as friends.) bb) Taking account of actual and subjective aspects Habitual residence is to be determined as part of overarching considerations of all the actual circum- 28 stances.68 Weighting may differ from case to case.69 Although the factual aspects are paramount in determining habitual residence in any one case70 (even more so than they are in determining the habitual residence of spouses)71, subjective aspects, such as the reasons for residence, may also be taken into account as part of overarching considerations.72 They may be an indirect indication of habitual residence.73 The legal intent to make the place of residence into the primary place of residence or the focus of the living situation is not necessary, however.74 Accordingly, the intent to remain (“animus manendi”) is not a precondition for establishing habitual residence.75 Intent alone is never sufficient. If the habitual residence of the child according to objective criteria76 is located in a particular place, the intent to have habitual residence in another place is in no way sufficient.77 cc) Physical presence An important criterium for determining habitual residence is the physical presence of the child in a 29 Member State that (as the term “habitual” suggests) exhibits a certain duration, permanence and regularity.78 The physical presence of the child alone is not sufficient to be able to qualify this place as 65 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 6; see also Schäuble in Althammer, Brüssel IIaVO, Art. 8 Brüssel IIa-VO note 11; Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436; HR (C-512/17), ECLI:EU:C:2018:513. 66 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 28; cf. also Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; cf. also on this differentiation OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. 67 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 6. 68 OLG Stuttgart, NJOZ 2021, 393; Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. 69 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 4; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 7; cf. also OLG Bamberg, FamRZ 2018, 38. 70 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 24; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 6. 71 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 5; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 6. 72 Kress, Zuständigkeit, p. 108; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11. 73 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; HR (C-512/17) ECLI:EU:C:2018:513. 74 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 7; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 notes 7 and 14; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 10; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 6; OLG Karlsruhe, NJW-RR 2015, 1415; OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. 75 In part, the doctrine considers a natural will to lead to be a requirement (Baetege, IPRax 2001, 573, 576; Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 7). 76 Cf also OLG Bamberg, FamRZ 2016, 1270 (Mankowski) = FF 2016, 404 (Ring). 77 Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 10; cf. also Gruber in Heidel/Hüßtege/Mansel/ Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 8; cf. also OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017: 436. 78 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436; UD v. XB (C-393/ 18 PPU), ECLI:EU:C:2018:835; cf. also Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4.

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Art. 7 Brussels IIter General jurisdiction habitual residence.79 Otherwise, Art. 13 Brussels IIter, under which even residence by itself may have the effect of establishing jurisdiction, would be meaningless.80 The effect of this precondition is not, however, that habitual residence is ended or interrupted by merely temporary absence. (see Art. 7 note 47 [Garber]).81 30

Brussels IIter contain no definite minimum duration that must be given for habitual residence to be established.82 In practice it is assumed that residence becomes habitual residence after approximately six months.83 The period of six months may only serve as a rough guideline, however;84 after six months’ residence in a state, as a rule residence is to be classified as habitual, although this is not a fixed rule.85 In some cases, habitual residence may already be established after a shorter period or only after a longer period of time.86 Thus, residence that exceeds six months in length is not automatically classified as habitual residence.87 Conversely, if residence has not yet lasted six months, this does not mean that it necessarily constitutes habitual residence. This can also be concluded from Art. 8(1) Brussels IIter from which follows that habitual residence may be established before three months have expired.88

31

In certain cases the length of the child’s presence has no significance. Thus, a place should already be classified as habitual residence, where residence is already established, if it is planned as being of longer duration.89 The condition here is, though, that the child must actually be physically present in that state.90 See Art. 7 note 26 [Garber].

32

A child acquires upon birth habitual residence in the state in which the holder of parental responsibility with whom the child is to grow up is habitually resident.91 If the holder of parental responsibil-

79 80 81 82

83

84

85 86 87 88 89 90 91

A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; OLG Bamberg, FamRZ 2018, 38; Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 5; cf. also Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 10. Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 9. See also Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 25; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 9. Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 5; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11c; OLG Bamberg, FamRZ 2018, 38. A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; OLG Bamberg, FamRZ 2018, 38; Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 5; cf. also Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 10. LG Stuttgart, NJW 2012, 2043; BGH, FamRZ 1997, 1070 = NJW 1997, 3024 = NJWE-FER 1997, 282; OLG Karlsruhe, FamRZ 2010, 1577 (Romeyko); OLG Karlsruhe, FamRZ 2008, 2223 = NJW-RR 2008, 1682; OLG Stuttgart FPR 2013, 223; OLG Saarbrücken NZFam 2016, 528 (Breidenstein); OLG Karlsruhe, NJOZ 2018, 1203; cf. also Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 15; Hausmann, Familienrecht2, F note 92; crit. Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 5. Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 26; Hausmann, Familienrecht2, F note 92; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 36; Tödter, Europäisches Kindschaftsrecht, pp. 39 et seq; Weber in Mayr, EuZVR note 4.186; cf. also Baetege, IPRax 2001, 573, 575; see also Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 19, that the rule should not be applied in a “ clumsy “ manner. Hausmann, Familienrecht2, F note 92; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO notes 19 et seqq. Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 10; Tödter, Europäisches Kindschaftsrecht, p. 40; cf. also OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky). Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 20. Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 6; cf. Coester-Waltjen, FamRZ 2005, 241, 244 n 22. Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 16; BGH, NJW 1981, 520; Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; cf. also OLG Stuttgart, NJW 2012, 2043; OLG Bamberg, FamRZ 2018, 38; OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565. UD v. XB (C-393/18 PPU), ECLI:EU:C:2018:835. Hausmann, Familienrecht2, F note 93; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 33; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 10; Siehr, IPRax 2012, 316, 317; cf. also BGHZ 184, 617 f.; OLG Hamm, IPRspr 2011/249; OLG Saarbrücken, IPRspr 2015/245.

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ity with whom the child is to grow up initially plans to be resident at the child’s place of birth indefinitely, when the child is born he or she also has habitual residence at that place.92 Other aspects of social integration are not yet relevant for infants. The fact that a child lived with its parents in a particular Member State from its birth until its parents separated and both parents or the parent who actually provides parental care continue(s) to be resident there after the separation or that the child continues to be in regular contact with that parent is significant for determining habitual residence; the fact that the parent who actually provides parental care feels connected to another Member State which he or she comes from and which he or she maintains family and cultural ties with and considers returning to have less weight.93 Accordingly, the habitual residence of infants depends on where they are permanently located and cared for or where it is planned for them to be cared for. Whether the persons rendering care are the legal parents is irrelevant. Thus, if a child that is born to a surrogate mother is immediately taken to the state of residence of the biological father according to the will of all the parties, the child’s habitual residence will be in that state and not in the country of its birth.94

33

However, an infant’s habitual residence does not necessarily have to match that of its parents or holders of parental responsibility. In C-111/17 PPU, the ECJ95 expressly rejected such a general arrangement. In determining habitual residence in any particular case, the parents’ original intention to have the child grow up in a certain Member State cannot be given more weight that the fact that the child has been residing in another state uninterruptedly since its birth. The circumstances of the individual case determine the matter. In C-497/10 PPU96, the ECJ ruled that in determining habitual residence “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.”

34

In C-393/18 PPU97 the ECJ required the child to have been physically present in a Member State for it to be assumed that it was habitually resident in that Member State. Thus, if the child is itself not present in a certain Member State, decisive significance in determining the interpretation of the concept “habitual residence” may not be attached to the intention of the parent who actually cares for the child or to the habitual residence of both parents in that Member State, where such exists, at the expense of objective geographical considerations. Physical presence as a precondition for the establishment of habitual residence also applies when particular circumstances pertain – such as (1) the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and/or (2) the mother’s or the child’s rights have been breached.

35

Contrary to the view taken by the ECJ98 up till this judgment, the child’s being able in certain cases to establish habitual residence in a state in which it has never yet resided is accordingly ruled out. If the child is born while the mother is residing abroad (such as during a holiday or a stay in a specialist clinic), it does not share the habitual residence of the holder of parental responsibility with which it is due to grow up; rather, it is does not have any habitual residence. In the view of the ECJ, gaps in legal protection should not arise because the subsidiary provisions on jurisdiction (such as Arts. 13 and 14 of Brussels IIbis) apply.99

36

92 93 94 95 96 97 98

OLG Saarbrücken, FamRZ 2011, 1235; BayObLG, FamRZ 2001, 1543. HR (C-512/17), ECLI:EU:C:2018:513. BGHZ 221, 330 = FamRZ 2019, 892. OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436. Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829. UD v. XB (C-393/18 PPU), ECLI:EU:C:2018:835. Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 33; Weber in Mayr, EuZVR note 4.187. 99 UD v. XB (C-393/18 PPU), ECLI:EU:C:2018:835.

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Art. 7 Brussels IIter General jurisdiction 37

Where a child relocates lawfully, the child typically acquires new habitual residence in the new state100 without a minimum time period having to expire.101 This applies in particular if it follows from the particular circumstances of the case that the new residence is planned to be of longer duration and involve integration,102 such as is based on enrolling in nursery or school or taking up employment.103 On the other hand, registering with the police is only a weak indication of the existence of habitual residence.104 The intention to settle permanently with the child in another Member State can also be concluded if a flat in the new state105 is bought or rented.106 Another indication that habitual residence has been established may be the application for social housing with the relevant authorities. In these cases, it may be concluded from the objectively verifiable circumstances that the child will not only remain in this place temporarily but for the long term and will make this place its primary place of residence. In some cases the day of arrival may therefore already lead to establishing habitual residence.107

38

While, when the child relocates legally, a new habitual residence may be established earlier and even immediately without any time period having to expire,108 if he or she relocates illegally, a thorough examination of the circumstances should be made.109 Establishment of the child’s habitual residence is not prevented by the will of the holder of parental responsibility to the contrary.110 Where the child has been wrongfully removed, a new habitual residence in the new state will only come about after some time. The time period of one year in Art. 12(1) of the Hague Abduction Convention can serve as a guideline here. The child acquires his or her habitual residence in that state when the focus of his or her existence has actually been relocated there.111 However, if the child’s habitual residence has come about as the result of the wrongful removal or retention of the child, a change in jurisdiction is only possible if the preconditions laid down in Art. 9 Brussels IIter have been met.112

39

The question of change of jurisdiction is difficult to answer if the removal of the child only occurred based on a provisionally enforceable decision permitting the removal and this provisionally enforceable decision is later overturned on appeal. According to the ECJ113, the provisional nature of the removal should be taken into account here; this would argue against a new habitual residence having

100 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 28; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 5; Kaller, iFamZ 2006, 37, 39; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 56; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 10; OLG Stuttgart, IPRax 2015, 251; cf. also LG Augsburg, BeckRS 2018, 6653; More restrictive A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50), according to which a new habitual residence could be obtained after a very short period of time. 101 More restrictive: A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50), according to which a new habitual residence could be obtained after a very short period of time. 102 OLG Frankfurt, NJW-RR 2020, 260. 103 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 5. 104 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 44; see also Hausmann, Familienrecht2, F note 91; cf. also OLG Hamm, BeckRS 2011, 2278 = FamFR 2011, 480 (Rieck). 105 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); HR (C-512/17), ECLI:EU:C:2018:513. 106 UD v. XB (C-393/18 PPU), ECLI:EU:C:2018:835. 107 OLG Karlsruhe, FamRZ 2014, 1565 = NJOZ 2014, 1211; see also Hausmann, Familienrecht2, F note 92. 108 Hausmann, Familienrecht2, F note 92; OLG Karlsruhe, NJW-RR 2008, 1323 FamRZ 2009, 239; BGH, BGHZ 188, 270 = FamFR 2011, 139 = FamRZ 2011, 542 (Helms) = LMK 2011, 317719 (Gruber). 109 OLG Hamm, FamRZ 1989, 1109; OLG Hamm, FamRZ 1991, 1346; OLG Stuttgart, NJOZ 2021, 393; see however BGH, BGHZ 151, 63 = FamRZ 2002, 1182 (Henrich), according to which the fact that the child was brought to France without consent would not justify imposing particularly stringent requirements for the establishment of habitual residence; in this direction also OL v. PQ (C-111/17 PPU), ECLI:EU:C:2017:436 (“Consequently, the consent of the father or the absence of that consent, in the exercise of his rights of custody, to the child settling permanently in a place cannot be a consideration that is decisive for the determination of the ‘habitual residence’ of that child, within the meaning of Regulation No 2201/2003, which is consistent, it may be added, with the idea that that concept reflects essentially a question of fact.”). 110 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 8. 111 Cf BGH BGHZ 151, 63 = FamRZ 2002, 1182 (Henrich); OLG Karlsruhe, NJOZ 2018, 1203. 112 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 8. 113 C v. M (C-376/14 PPU), ECLI:EU:C:2014:2268.

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been established as a result of the removal. On the other hand, it may not be ruled out that the child may have adequately integrated and established habitual residence as a result of the removal.114 If the child is residing in a place merely temporarily (for example, as part of a journey, a holiday, regular weekend visits, a school or student exchange or internship) or is present only occasionally, he or she does not establish habitual residence in that state.115 If the family and other social relations to the previous primary place of residence are maintained and if returning to that state is intended, the focus will remain in that state.116

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dd) Further criteria Besides the child’s physical presence that must at least exhibit a certain duration, permanence and 41 regularity, further factors are to be taken into account in assessing whether residence in a Member State is an expression of the child’s integration into social and family surroundings.117 These include: 1. The grounds for this residence and for the family’s relocation,118 2. The child’s nationality; although only extremely limited significance is attached to nationality in determining habitual residence (even though the ECJ does mention it as a characteristic of habitual residence);119 this is because nationality does not allow conclusions to be drawn about social and geographical ties to a certain Member State; in case of doubt, nationality is only to be taken into account as part of overarching considerations;120 3. The place and circumstances in which the child was enrolled in school; if the child attends a daycare facility, nursery or school in a certain state, it can be concluded that the child is habitually resident in that state;121 if there is a discrepancy between the focus of the child’s family life and school life, (e.g., if he or she attends a boarding school in another state), in case of doubt the place where the focus of his or her family life is located may be classified as habitual residence;122 4. The languages spoken by the child;123 if the child can make him- or herself understood in a language spoken in the state in which he or she is residing, a particular connection may be assumed;124 this does not necessarily have to be the national language of that state; it is sufficient if the language is spoken in that part of the state in which the child resides (e.g., “China Town”).125

114 C v. M (C-376/14 PPU), ECLI:EU:C:2014:2268. 115 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); cf. also Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 6; Hausmann, Familienrecht2, F note 94; Pesendorfer in Fasching/Konecny, Kommentar V/ 22, Art. 8 EuEheKindVO note 38; Schütz, RZ 2005, 234; Weber in Mayr, EuZVR notes 4.183 and 4.186. 116 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 38; see also OLG Karlsruhe, BeckRS 2020, 25617 = FamRZ 2021, 124. 117 HR (C-512/17), ECLI:EU:C:2018:513; cf. also OGH 2 Ob 78/09y iFamZ 2009/252 (Fucik). 118 Cf. also OLG Stuttgart, FPR 2013, 223. 119 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 45; different opinion Mankowski, GPR 2011, 209, 210; Rauscher, LMK 2009, 282910; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11e; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 5 n 19; Siehr, IPRax 2012, 316, 317, that nationality should be recognised as a factor promoting the integration of the child; cf. also OLG Bamberg, FamRZ 2018, 38; according to a different opnion (Nademleinsky/Neumayr, IFR2 note 8.34; LGZ Wien 45 R 403/10p EFSlg 128.310; LGZ Wien 42 R 154711z EFSlg 132.090) nationality is completely irrelevant. 120 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 45. 121 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 122 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 6; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 20; Hausmann, Familienrecht2, F note 90; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 44; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54; cf. also OLG Hamm, FamRZ 2012, 143. 123 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 124 OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565. 125 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 31; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 44.

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Art. 7 Brussels IIter General jurisdiction 5. The child’s family and social ties; involvement in a religious community or participation in leisure or sports clubs may be a indication that habitual residence is located in that state;126 if the child is regularly resident and also integrated with respect to family and society in a certain state, the fact that the child and/or the parents maintain cultural or linguistic ties to another state does not preclude the assumption that the child has habitual residence in that state.127 42

Other steps towards integration (such as taking up employment or attempting to do so128) are also to be taken into account in determining habitual residence.129

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The fact that not all ties to the previous state of residence, including those of an administrative nature, have not yet been cut does not preclude the establishment of habitual residence in another state.130 ee) Stability, voluntary nature, permissibility and legality

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The primary place of residence must exhibit a certain degree of stability.131 Those concerning whom it is uncertain whether they will remain in a certain state (such as asylum seekers or refugees) lack a habitual residence or it will only come about slowly;132 asylum seekers and refugees may naturally also acquire habitual residence in a state.133 Furthermore, they are typically protected by Art. 13(2) Brussels IIter (see the commentary on Art. 13 Brussels IIter).

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On the other hand, the willingness to establish or maintain habitual residence is not a precondition for it,134 even if it should be conceded that unwillingness can slow down integration and thus delay the establishment of habitual residence.135

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Whether residence in a certain state is permitted or legal is also just as irrelevant. Hence, habitual residence may also come about if the child does not possess a residence permit under the legislation governing foreigners, his or her asylum application has already been rejected or he or she is not properly registered contrary to registration law.136

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Habitual residence may also be located in a state to which the child has been wrongfully brought or in which it is retained.137 The child’s integration may not be prevented by the will of the holders of parental responsibility (or that of one of them) to the contrary,138 unless the child is being hidden in that state.139 If the child has been removed to another state or is being retained in a state against the 126 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 127 HR (C-512/17), ECLI:EU:C:2018:513. 128 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 46. Different opinion Mankowski, GPR 2011, 210; Rauscher, LMK 2009, 282910; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11e; Siehr, IPRax 2012, 316, 317; crit. Lamont, CMLR 47 [2010] 243 et seq; Pirrung in FS Gunther Kühne, p. 843, 854 nationality is to be recognised as a factor promoting the integration of the child. 129 Cf also OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565 (Attendance of an integration course by the father where the child is staying). 130 OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565. 131 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 132 Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 18; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 41; OLG Koblenz, FamRZ 2017, 1229; OLG Koblenz, FamRZ 2016, 995; OLG Stuttgart, FamRZ 2014, 1567. 133 OLG Bamberg, FamRZ 2016, 1270 (Mankowski) = FF 2016, 404 (Ring). 134 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 48. 135 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 48. 136 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 49. 137 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 36; Schäuble in Althammer, Brüssel IIaVO, Art. 8 Brüssel IIa-VO note 12. 138 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 36; Schäuble in Althammer, Brüssel IIaVO, Art. 8 Brüssel IIa-VO note 12. 139 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 36; Schäuble in Althammer, Brüssel IIaVO, Art. 8 Brüssel IIa-VO note 12.

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will of the holders of parental responsibility (or that of one of them), a new habitual residence will only be established after “not a short period of time” and after corresponding social integration in the state to which he or she has been removed.140 The time period of one year in Art. 12(1) of the Hague Abduction Convention can serve as a guideline here, which is also referred to in Art. 9(b)(i) Brussels IIter.141 Habitual residence can no longer be denied if residence has been of longer duration and the child is socially integrated.

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6. Examination as to the existence of habitual residence Habitual residence is examined by the (national) courts of the seised state.142 The place is to be ascer- 49 tained by means of overarching consideration of all the actual circumstances. Subjective aspects (as explained in Art. 7 note 25 [Garber]) may also be taken into consideration. The weighting of the individual aspects may vary from case to case.143 The jurisdiction of a court for decisions concerning parental responsibility is to be examined in every individual case when proceedings are initiated at a court. This means that jurisdiction does not continue beyond the conclusion of the pending proceedings.144

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7. Effect of an interruption to habitual residence An interruption to habitual residence by a short or temporary absence (such as due to a journey, a holiday, regular weekend visits, a school or student exchange or internship) does not terminate habitual residence. If the child is residing in that place merely temporarily – or is present only occasionally, this does not establish habitual residence in that state.145 If the family and other social ties to the previous primary place of residence are maintained and if returning to that state is intended, the focus will remain in that state.

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8. On more than one habitual residence It is open to question whether a child may establish habitual residence in only one Member State or 52 in more than one Member State.146 The overwhelming view of the scholarship147 and case-law148 is that a child may only have one habitual residence in the context of Art. 7 Brussels IIter.149 The fact that in referring to habitual residence the Regulation only uses the singular can be adduced in support of this view (recitals 13, 16, 20, 21, 22, 25, 26, 27, 30, 46, 48, 50, 51, 75, 84 on Brussels IIter, Arts. 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 19, 22, 27, 39, 55, 75, 78, 80, 96 Brussels IIter as well as in Annex I).

140 Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO notes 29 et seqq; OLG Nürnburg, IPRspr 2010/242; OLG Hamm NJWE-FER 1997, 69 = NJW-RR 199, 6. 141 Hausmann, Familienrecht2, F note 98; different opinion Baetege, IPRax 2001, 572, 575. 142 A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); OL v. PQ (C-111/17 PPU), ECLI:EU:C: 2017:436; cf. also Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 4; Hausmann, Familienrecht2, F note 91; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54; OGH 2 Ob 78/09y iFamZ 2009/252 (Fucik). 143 Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 7. 144 E v. B (C-436/13), ECLI:EU:C:2014:2246. 145 Cf also Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829. 146 Affirmative Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 56; negatory Christensen/Alvino in FS Kay Nehm, p. 41, 47; Holzmann, FPR 2010, 498; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11; Rieck in Schulz/Hauß, Familienrecht3, Art. 8 EheVO 2003 note 6; Weber in Mayr, EuZVR note 4.188. 147 Holzmann, FPR 2010, 498; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11; Rieck in Schulz/Hauß, Familienrecht3, Art. 8 EheVO 2003 note 6; Weber in Mayr, EuZVR 4.188. 148 Cf A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 149 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 11; Rieck in Schulz/Hauß, Familienrecht3, Art. 8 EheVO 2003 note 6.

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Art. 7 Brussels IIter General jurisdiction Furthermore, competition between jurisdictions that would lead to forum shopping is ruled out.150 In addition to this, habitual residence is one of the decisive factors in determining which law is applicable so that if multiple habitual residences existed, this would raise the question which law would apply.151 In IB v. FA152 the ECJ also ruled with respect to Art. 3 of Brussels IIbis that a spouse who spends his or her time between two Member States may only have his or her habitual residence in one of these Member States. It is to be assumed that the ECJ would come to the same conclusion concerning parental responsibility. 53

Practical considerations can be adduced in support of the contrary view.153 In doubtful cases, a precise and time-intensive examination is not necessary.154 This considerably reduces the length of proceedings and thus serves the child’s best interests.155 In particular justified cases, a child should also be able to establish his or her habitual residence in several states – if a relation of proximity of the same kind exists to several states; for example in the case of double residence between more than one Member State.156 9. Consequences when habitual residence cannot be determined

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If it is not possible to determine the child’s habitual residence, under Art. 11(1) Brussels IIter the court has jurisdiction of the state in which the child is located (see the commentary on Art. 11 Brussels IIter). 10. Consequences when habitual residence does not exist

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If habitual residence of the child’s does not exist in a Member State, the court is to decline jurisdiction. A transfer of jurisdiction to a court of another Member State under Art. 12 Brussels IIter is not permissible because Art. 12 Brussels IIter presupposes the jurisdiction of the seised court (see the commentary on Art. 12 Brussels IIter). The court does have the option, however, of initiating a transfer of jurisdiction pursuant to Art. 13 Brussels IIter. See the commentary on Art. 13 Brussels IIter. 11. The time determining the existence of habitual residence a) General remarks

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The child must be habitually resident in the state whose courts have been seised at the time the court is seised.157 The time when the court is seised is determined by Art. 17 Brussels IIter.158 b) The principle of perpetuatio fori

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It follows from the phrase “at the time the court is seised” that the principle of perpetuatio fori applies within the scope Brussels IIter159 – in contrast to the scope of the PCC160 and the PIC161. Thus, if in150 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 54; Weber in Mayr, EuZVR note 4.188. 151 Weber in Mayr, EuZVR note 4.188. 152 IB v. FA (C-289/20), ECLI:EU:C:2021:955. 153 Cf also Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 54. 154 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 54. 155 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 54. 156 Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 40; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 23; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 56; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 54b; cf. also Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 4. 157 Cf Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; Valcheva v. Babanarakis (C-335/17), ECLI:EU:C:2018:359. 158 Nademleinsky/Neumayr, IFR2 note 8.35 n 84; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIaVO note 9; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 14; Weber in Mayr, EuZVR note 4.112; OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik); Barbara Mercredi v. Richard Chaffe (C-497/10 PPU), ECLI:EU:C:2010:829; Hausmann, Familienrecht2, F note 101.

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ternational jurisdiction is given at the time of Art. 17 Brussels IIter,162 the Member State also retains jurisdiction if the child relocates his or her habitual residence from Member State to another Member State during the proceedings.163 Nor does a change in residence during proceedings result in jurisdiction being withdrawn from higher instances.164 The principle of perpetuatio fori does not apply, however, if habitual residence is relocated to a contracting state of the PCC or PIC, in the scopes of which the principle of perpetuatio fori does not apply.165 In contrast to this, the Draft for the recast of the Brussels IIbis Regulation166, published on 30/06/ 58 2016, provided for the following supplement to the general rule on jurisdiction: “If a child moves from one Member State to another Member State legally and acquires a new habitual residence there, the authorities of the Member State of the new residence shall have jurisdiction”. This was to ensure that geographical proximity between the child’s habitual residence and the forum 59 would be maintained (recital 15 on the Draft) and that the support of child and youth welfare institutions would not be lost.167 According to recital 15 on the Draft, the provision was to apply regardless of whether proceedings were pending or not. This would have led to a breach of the principle of perpetuatio fori. In pending proceedings, however, parties may agree in the interests of the efficiency of justice that the courts of the Member State where proceedings are pending retain jurisdiction until a final decision has been given, provided that this is in the best interests of the child. This arrangement did not appear to be without its problems.168 In most cases changing jurisdiction during proceedings that are already pending is hardly efficient.169 This is especially the case when the proceedings are already in the advanced stages. The proceedings have to be conducted again, particularly because the procedures for conducting proceedings differ between the Member States. Differing assessments of the question of the legality of the relocation from the Member State of the previous habitual residence to the Member State of the current habitual residence would have led to conflicts in jurisdiction.170 It also seemed to be concerning that proceedings in the state first seised would have been terminated without the obligation being laid down to inform the authorities of the second state via Art. 15 (corresponding to Art. 14 of the Draft and Art. 12 Brussels IIter) or transfer the proceedings or hand them over.171 This arrangement would have led to proceedings, including those that were already at an advanced stage having to be abandoned without a decision on the matter; the pro159 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 9; Frank in Gebauer/Wiedmann, Zivilrecht3, Art. 8 EuEheVO note 5; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 notes 22 and 23; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 6; Nademleinsky/Neumayr, IFR2 note 8.76; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 55; OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik); 3 Ob 56/16f EF-Z 2916/136 (Nademleinsky); BGH BGHZ 184, 269 = FamRZ 2010, 720 (Stößer) = FR 2010, 182 (van Els) = JR 2011, 254 (Probst) = JuS 2010, 819 (Wellenhofer) = NJW 2010, 1351 (Peschel-Gutzeit); OLG München, FamRZ 2011, 1887; OLG Stuttgart, FamRZ 2013, 49; OLG Karlsruhe, BeckRS 2020, 25617 = FamRZ 2021, 124; RIS-Justiz RS0128460 ECLI:AT:OGH0002:2012:RS0128460; crit. Kress, Zuständigkeit, pp. 111 et seq. 160 Benicke in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Art. 5 KSÜ note 3; Wiedemann in MüKoFamFG II3, Art. 5 KSÜ note 18. 161 Benicke in Heidel/Hüßtege/Mansel/Noack, BGB I4, Art. 1 MSA note 3; Garber/Lugani, Zak 2022, 204; OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky) = FamRZ 2017/784; OLG Stuttgart FamFR 2012, 312 (Leipold) = FamRZ 2013, 49. 162 OGH RIS-Justiz RS0128460 ECLI:AT:OGH0002:2012:RS0128460. 163 Agreeing to the retention of the principle Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO notes 6/ 10 et seqq; Garber/Lugani, NJW, 2225, 2227 et seq.; Weller, IPRax 2017, 222, 223; crit. however Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 9. 164 OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky). 165 OLG Stuttgart FamFR 2012, 312 (Leipold) = FamRZ 2013, 49; OLG Frankfurt, NJW-RR 2020, 260. 166 COM(2016) 411 final. 167 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 34. 168 See also Garber in König/Mayr, EuZVR V 125 et seq; Weller, IPRax 2017, 222, 223; different opinion Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX pp. 13, 34 et seq. 169 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 34. 170 See also Garber in König/Mayr, EuZVR V 126. 171 Statement of the BRAK on the new version of the Brussels IIa regulation (Stellungnahme der BRAK zur Neufassung der Brüssel-IIa-Verordnung [EuEheVO]) 4, abrufbar unter http://www.brak.de/zur-rechtspolitik/

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Art. 7 Brussels IIter General jurisdiction ceedings in the Member State of the new habitual residence would have had to have been conducted from the very beginning – in the absence of any cross-border transfer, which is not possible due to the differing procedures in the Member States. This would cause the proceedings to have put more strain on the child and would have run contrary to the child’s best interests. Recital 15 on the Draft would not have been able to prevent this. The option of making a different agreement was not anchored in the normative part of the Draft Regulation (an agreement would only have been possible if the (additional)172 preconditions laid down in Art. 10 of the Draft had been fulfilled), and in practice an agreement would probably have failed because the party that was counting on an unfavourable outcome to proceedings would not have agreed to maintaining the jurisdiction. Based on the possibility of a transfer of jurisdiction, jurisdiction may be transferred to another Member State so that the particular circumstances of the case can be taken into account. Such a transfer might come into consideration, if proceedings are not that advanced, for example. 60

In its opinion, the European Parliament ultimately requested (even if it was without further rationale) that this addition should be struck out completely.173 In the version Brussels IIter that came into effect, the validity of the principle of perpetuatio fori is explicitly emphasised, in recital 21 Brussels IIter, “Where no proceedings in matters of parental responsibility are yet pending and the habitual residence of the child changes following a lawful relocation, jurisdiction should follow the child in order to maintain the proximity. For proceedings already pending, legal certainty and the efficiency of justice justify maintaining this jurisdiction until those proceedings have resulted in a final decision or have otherwise come to an end. The court before which proceedings are pending should, however, be entitled in certain circumstances to transfer jurisdiction to the Member State where the child is living following a lawful relocation.” c) Legal consequences of the application of the principle of perpetuatio fori

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Based on the validity of the principle of perpetuatio fori, provided that international jurisdiction is given at the time of Art. 17 Brussels IIter, the courts of that Member State also retain jurisdiction if the child relocates his or her habitual residence from one Member State to another Member State during the proceedings.174 Nor does a change in residence during proceedings result in jurisdiction being withdrawn from higher instances. The principle only applies within the same proceedings; later amendments to decisions are not included.175 This means that jurisdiction does not continue beyond the conclusion of the pending proceedings.176

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If proceedings are initiated in another Member State, the objection of lis pendens contained in Art. 20 Brussels IIter prevents the proceedings from being conducted (on this and on the exception to it, see Art. 20 Brussels IIter and the commentary).177 It should be noted that in its judgments on Arts. 7 f. Brussels IIter, the ECJ always makes reference to parental responsibility or to the holders of parental responsibility and does not split the matter between rights of custody on the one hand and rights of access on the other. Parental responsibility is therefore to be considered a holistic concept under national law, that is, without being fragmented into individual aspects. It follows from this that the court where proceedings on custody rights are pending also has jurisdiction over proceedings on regulating personal contact that were initiated after the child has moved away.178

172 173 174 175 176 177 178

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stellungnahmen-pdf/stellungnahmen-deutschland/2016/august/stellungnahme-der-brak-2016-28.pdf (15.8.2022). Thus, according to Art. 10 (3) Brussels IIter Regulation-E, it would have been necessary that an agreement or express recognition of jurisdiction during the proceedings had to be permissible under the law of the Member State concerned. 2016/0190 (CNS) 12. Agreeing to the retention of the principle Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO notes 6/ 10 et seqq; Garber/Lugani, NJW, 2225, 2227 et seq; Weller, IPRax 2017, 222, 223; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 9. Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 6. E v. B (C-436/13), ECLI:EU:C:2014:2246. Nademleinsky/Neumayr, IFR2 note 8.35. OGH 3 Ob 56/16f EF-Z 2016/136 (Nademleinsky); Haidmayer, EvBl 2015/115; cf. also Nademleinsky, EF-Z 2015/170 (EAnm).

Garber

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Art. 7 Brussels IIter

12. Consequences of establishing habitual residence after the court has been seised It is open to question what the consequences are when a child is not habitually resident in the state 63 whose courts have been seised at the time they are seised, but which establishes it during the course of proceedings (before the request for relief is denied due to lack of jurisdiction). Contrary to the wording, it is sufficient for the child to be habitually resident in the Member State whose courts have been seised at the time the court hands down its decision.179 This prevents an application from having to be refused due to lack of jurisdiction even though the preconditions are met at the time the decision is handed down. Otherwise, the court would have to dismiss the motion and the motion would have to be brought again in that state because habitual residence was now located in that state.180 Considerations of procedural economy argue in favour of this view, in particular.181 The situation is only different, however, if an application has already been lodged with the courts of a state having international jurisdiction.182 In this case, the court first seised is to decline jurisdiction;183 otherwise, this would run counter to the provision of Art. 20(2) Brussels IIter. This interpretation may, however, not lead to the examination of international jurisdiction being postponed to a later date because it it assumed that the child might develop habitual residence in that state.184

64

13. Relocation of habitual residence from a Member State to a third country If the child relocates his or her habitual residence to a third country, a distinction should be made between: (1) relocating to a state with which there is a bilateral or multilateral agreement (see Art. 7 note 62 [Garber]) or (2) relocating to another state (see Art. 7 note 63 [Garber]).

65

If the relocation is to a state with which a bilateral or multilateral agreement exists, the stipulation contained in that agreement is to be taken as the basis (provided is has precedence) and not Art. 8 Brussels IIter. Thus the provisions of the PIC or PCC apply when there is a change in habitual residence in a third country that is a contracting party to the PIC or PCC. Since the principle of perpetuatio fori does not apply, the court seised later is to decline jurisdiction.185 Its jurisdiction ceases.186

66

179 BGH BGHZ 184, 269 = FamRZ 2010, 720 (Stößer) = FR 2010, 182 (van Els) = JR 2011, 254 (Probst) = JuS 2010, 819 (Wellenhofer) = NJW 2010, 1351 (Peschel-Gutzeit); cf. Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 10; Geimer in Geimer/Schütze, EuZVR4, Art. 8 VO (EG) Nr 2201/2003 note 25; Gottwald in MünchKommFamFG3, Art. 8 EWG VO 2201/2003 note 6; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 4; Nademleinsky/Neumayr, IFR2 note 8.35; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 21; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 10; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 15; Solomon, FamRZ 2004, 1409, 1411; different opinion Rieck in Schulz/Hauß, Familienrecht3, Art. 8 EheVO 2003 note 12. 180 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 10; Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIaVO note 48. 181 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 21; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 55. 182 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 8 EheVO 2003 note 4; Nademleinsky/ Neumayr, IFR2 note 8.35; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note C 55. 183 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 10; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 8 Brüssel IIa-VO note 10; Solomon, FamRZ 2004, 1409, 1411. 184 Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 41. 185 Andrae, IPRax 2006, 82, 84 et seq; Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 6; Heiderhoff in MünchKommBGB8, Art. 8 Brüssel IIa-VO note 40; Nademleinsky, EF-Z 2011, 85, 87; Schäuble in Althammer, Brüssel IIa-VO, Art. 8 Brüssel IIa-VO note 14; different opinion Gruber in Heidel/Hüßtege/Mansel/Noack, NKBGB I4, EGBGB Art. 8 EheVO 2003 note 3. 186 BGH BGHZ 151, 63 = FamRZ 2002, 1182 (Henrich) = FPR 2002, 665 = LM MSA Nr 5 (Maurer); OLG Stuttgart FamFR 2012, 312 = FamRZ 2013, 49.

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights 67

If the child moves to a third country, however, with which there is no bilateral or multilateral agreement, the seised court retains jurisdiction under Art. 7(1) Brussels IIter.187 14. Relocation of habitual residence from a third country to a Member State

68

If the relocation is from a third country, the jurisdiction of the courts of the Member State in which the new habitual residence is established is based on Art. 7(1) Brussels IIter. Whether the jurisdiction of the court of the third country first seised continues is determined by national law.188 Whether and under what circumstances lis pendens is to be regarded in the third country is judged by the national law of the Member State.189

III. Other jurisdictions (Art. 7(2) Brussels IIter) 69

Art. 7(2) Brussels IIter lays down the relationship of the general jurisdiction under Art. 7(1) Brussels IIter to the particular jurisdictions under Arts. 8, 9 and 10 Brussels IIter. Art. 7(1) Brussels IIter is superseded by the particular provisions of Arts. 8 to 10 Brussels IIter.190

70

The list in Art. 7(2) Brussels IIter is not conclusive. Art. 12 Brussels IIter also establishes an exception to Art. 7(1) Brussels IIter191. In addition, it is possible to deviate from the general jurisdiction under Art. 13 and 150 Brussels IIter.

Article 8 Continuing jurisdiction in relation to access rights 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 7, retain jurisdiction, for three months following the move, to modify a decision on access rights given in that Member State before the child moved if the person granted access rights by the decision 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. I. Synopsis . . . . . . . . . . . . . . . . . . . . . .

1

II. Comparison with Brussels IIbis . . . . . . . .

3

III. Jurisdiction pursuant to Art. 8(1) Brussels IIter . . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . 2. Relationship to Art. 7(1) Brussels IIter . 3. Relationship to Art. 12 Brussels IIter . .

. . . .

. . . .

. . . .

. . . .

4 4 7 9

4. Rationale . . . . . . . . . . . . . . . . . . . . . . 5. Scope . . . . . . . . . . . . . . . . . . . . . . . . 6. Prerequisites for application . . . . . . . . . . . a) General remarks . . . . . . . . . . . . . . . b) Habitual residence of the child in the Member State of origin . . . . . . . . . . . c) New habitual residence of the child in the state to which it has moved . . . . . . . . .

10 18 22 22 23 24

187 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 13; Nademleinsky, EF-Z 2011, 85, 87; Weber in Mayr, EuZVR note 4.112; different opinion Heinrich, FamRZ 2002, 1184, 1185, according to which domestic law should be decisive as to whether or not there was perpetuatio fori; different opinion also Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 9. 188 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note17; Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 52. 189 Dilger in Geimer/Schütze, IRV Art. 8 VO Nr 2201/2003 note 17; Garber in Gitschthaler, Familienrecht, Art. 8 Brüssel IIa-VO note 52. 190 Fleige, Zuständigkeit, p. 121; Tödter, Europäisches Kindschaftsrecht, p. 32; cf. also CV/DU (C-85/18 PPU), EU:C:2018:220. 191 Dörner in Saenger, ZPO9, Art. 8 EuEheVO note 1.

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Chapter II: Jurisdiction in Matrimonial Matters etc. d) Moving lawfully to another Member State e) Concerning the holders of access rights . . f) Continued habitual residence of the holder of access rights in the Member State of origin . . . . . . . . . . . . . . . . . g) The role of the holder of access rights is not determinative for the proceedings . . .

25 30 31 33

Art. 8 Brussels IIter

h) Judgment in the previous Member State . 34 i) Application within three months of the move . . . . . . . . . . . . . . . . . . . . . . 38 7. Does the principle of perpetuatio fori apply? . 43 IV. “Recognition” of jurisdiction – Art. 8(2) Brussels IIter . . . . . . . . . . . . . . . . . . . 44

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020) 13; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Coester-Waltjen, Elternumzug (Relocation) und Kindeswohl, ZKJ 2013, 4; Dutta/Schulz, Erst Meilensteine im europäischen Kindschaftsverfahrensrecht: Die Rechtsprechung des Europäischen Gerichtshofs zur Brüssel-IIa-Verordnung von C bis Mercredi, ZEuP 2012, 526; Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die neue EheVO und die deutschen Ausführungsgesetze, IPRax 2005, 293; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Holzmann, Brüssel II a VO: Elterliche Verantwortung und internationale Kindesentführung (2008); Holzmann, Verfahren betreffend die elterliche Verantwortung nach der Brüssel IIa-VO, FPR 2010, 497; Lowe, Gewöhnlicher Aufenthalt, internationale Kindesentführung und Brüssel II-Verordnung, FamZ 2006, 181; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011, 85; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409.

I. Synopsis Art. 8(1) Brussels IIter provides for a particular jurisdiction to apply to amending a judgment concerning access that has already been handed down by a court. If certain prerequisites are met (see Art. 8 note 20 et seq. [Garber]), the courts of the Member State that handed down the judgment on access are also responsible for the amendment or adjustment of this judgment. This provision effects a retention of the jurisdiction of the courts of the Member State in which the child’s habitual residence was located before moving (see Art. 8 note 1 et seq. [Garber])1

1

Art. 8(2) Brussels IIter provides for the possibility of remedying the lack of international jurisdiction by the holder of access rights entering an appearance in the proceedings without objecting (see Art. 8 note 42 et seq. [Garber])

2

II. Comparison with Brussels IIbis Art. 8 Brussels IIter corresponds to Art. 9 of Brussels IIbis although the two provisions diverge from 3 each other in language. The heading of the provision reads “Continuing jurisdiction in relation to access rights” instead of “Continuing jurisdiction of the child’s former habitual residence.” The term “during a three-month period” was replaced with the phrase “for three months”; the phrase “for the purpose of modifying a judgment on access rights issued in that Member State” was replaced with the term “to modify a decision on access rights given in that Member State”, and the phrase “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” by the phrase “if the person granted access rights by the decision continues to have his or her habitual residence in the Member State of the child’s former habitual residence”. No chances to content are connected to the modifications to the language.2

1 Cf. W und V/X (Case Rs C-499/15), ECLI:EU:C:2017:118. 2 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/18.

Garber

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights

III. Jurisdiction pursuant to Art. 8(1) Brussels IIter 1. General remarks 4

According to Art. 8(1) Brussels IIter, the courts of the Member State that handed down the judgment concerning access also have jurisdiction for amendments or adjustments to this judgment, if certain prerequisites are met (see Art. 8 note 20 et seq. [Garber]). The provision leads to a further development of the principle of perpetuatio fori;3 the courts of the Member State that handed down the judgment concerning access retain jurisdiction for amendments or adjustments without the proceedings being pending at the time of moving.4 Neither the PIC5 nor the PCC6 contain a comparable rule. Art. 8(1) Brussels IIter corresponds in structure to Art. 5 Brussels IIter, which applies to matrimonial matters.7

5

Jurisdiction pursuant to Art. 8(1) Brussels IIter is restricted both temporally (see Art. 8 note 36 et seq. [Garber]) and functionally (see Art. 8 note 32 et seq. [Garber]).8 This is to guarantee that divergence from the basic rule laid down by 7(1) Brussels IIter only occurs in exceptional cases.

6

Art. 8(1) Brussels IIter only regulates international jurisdiction (“the courts of the Member State […] shall […] retain jurisdiction”). In the absence of an autonomous rule in EU law, geographical and functional jurisdiction is determined by the rules of domestic law.9 Since Art. 8(1) Brussels IIter only regulates international jurisdiction, it does not follow from the provision that the court that handed down the judgment concerning access is the one that actually makes the amendments or adjustments.10 If the domestic law of the Member State having jurisdiction pursuant to Art. 8 Brussels IIter does not provide for geographical jurisdiction for the making of amendments, according to one part of the scholarship11 the court that handed down the judgment that is to be amended should have jurisdiction as a further development of the law; this only applies if the domestic law does not contain a provision on geographical jurisdiction where international jurisdiction is given. 2. Relationship to Art. 7(1) Brussels IIter

7

Art. 8(1) Brussels IIter supercedes Art. 7(1) Brussels IIter as a lex specialis12. The preeminence of Art. 8 Brussels IIter is explicitly regulated in Art. 7(2) Brussels IIter. The exclusive character of the rule on jurisdiction is meant to prevent competition between jurisdictions.13 The holder of access rights may nevertheless make an application in the Member State in which the child’s new habitual residence is located to have the court’s arrangement concerning access amended or adjusted (see Art. 8 note 42 et seq. [Garber]) – as can be concluded from Art. 8(2) Brussels IIter; in this respect he or she has a right of selection.14

3 Cf. also Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 2; see also OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik). 4 OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik). 5 Schäuble in Althammer, Brüssel IIa VO Art. 9 Brüssel IIa VO note 1. 6 Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 1; Hausmann, Familienrecht2, F note 111; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 1; Schäuble in Althammer, Brüssel IIaVO, Art. 9 Brüssel IIa-VO note 1. 7 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 2. 8 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 1. 9 Hausmann, Familienrecht2, F note 124. 10 Geimer in Zöller3,4, Art. 9 VO (EG) Nr 2201/2003 note 13; Hausmann, Familienrecht2, F note 124; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 12. 11 Geimer in Zöller3,4, Art. 9 VO (EG) Nr 2201/2003 note 13; Hausmann, Familienrecht2, F note 124; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 16; in this direction also Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 1. 12 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 7; cf. also Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 8. 13 Hausmann, Familienrecht2, F note 124. 14 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 6.

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Art. 8 Brussels IIter

If proceedings to amend a judgment concerning access are already pending in the Member State in which the child’s habitual residence was located before moving pursuant to Art. 7(1) Brussels IIter, the court retains jurisdiction according to the principle of perpetuatio fori (see also Art. 7 note 53); Art. 8 Brussels IIter is not applicable in this case.15

8

3. Relationship to Art. 12 Brussels IIter The court having jurisdiction pursuant to Art. 8(1) Brussels IIter may arrange for a transfer of juris- 9 diction16 to the courts of another Member State on the basis of Art. 12 Brussels IIter even though – in contrast to Brussels IIbis (cf. Art. 15(4) subparagraph 2 and Art. 15(5) 3rd sentence of Brussels IIbis) – no explicit reference is made to this rule. Jurisdiction based on Art. 8(1) Brussels IIter therefore does not stand in the way of a transfer of jurisdiction. Art. 12(4)(a) Brussels IIter presumes that the child has a particular connection to the Member State in which the child acquired its habitual residence after the court was seised. See the commentary on Art. 12 Brussels IIter. 4. Rationale Art. 8(1) Brussels IIter allows for the court judgment concerning access in the Member State in which it what handed down to be adapted to the changes to the situation caused by the move. Otherwise, as a rule the Member State in which the child’s new habitual residence is located would have jurisdiction pursuant to Art. 7(1) Brussels IIter.17

10

The particular proximity to the matter of the courts in the Member State where habitual residence 11 was previously located may be adduced for that Member State retaining jurisdiction.18 During the time period laid down by Art. 8(1) Brussels IIter of three months from the move, the child will still have a strong connection to its Member State of origin; it will not yet have completely integrated or settled in the state it has moved to.19

12

Furthermore, the courts of the Member State that handed down the judgment are already familiar with the matter, so that as a rule they are the ones who are able to decide mostly quickly about making amendments to the existing arrangement concerning access (but see note 6, according to which another court than that which handed down the judgment may have jurisdiction).20 During the time period laid down by Art. 8(1) Brussels IIter of three months from the move, the courts of the Member State of origin have a better understanding of the circumstances than the courts of the state the child moved to, or the courts of the Member State of origin are able to establish what the circumstances are more quickly.21 Art. 8(1) Brussels IIter therefore also aids procedural economy. Swiftly adapting the existing court arrangement for access ensures the continuity of rights of access so that the jurisdiction corresponds to the best interests of the child.22

13

The fact that the courts of the Member State of origin are not required (provided the application is 14 made within three months from the move) to examine in which Member State the child’s habitual re15 Cf. also Heiderhoff in MünchKommBGB8, Art. 9 Brüssel IIa-VO note 1. 16 Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 8; Gruber in Heidel/Hüßtege/Mansel/ Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB, Art. 9 EheVO 2003 note 11; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 27. 17 Rieck in Schulz/Hauß, Familienrecht3, Art. 9 EheVO 2003 note 2. 18 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 10; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 1. 19 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 2; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB, Art. 9 EheVO 2003 note 1. 20 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 4. 21 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 1; cf. also Gruber in Heidel/Hüßtege/ Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 1. 22 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 10; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 5; Tödter, Europäisches Kindschaftsrecht, p. 44. Cf. also Hausmann, Familienrecht2, F note 112.

Garber

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights sidence is located, which can sometimes be a laborious exercise, also corresponds to the principle of procedural economy. If the child still has its habitual residence in the Member State of origin, the courts of this state have jurisdiction pursuant to Art. 7(1) Brussels IIter; if the child’s habitual residence is located in another Member State, the courts of the Member State of origin have jurisdiction pursuant to Art. 8(1) Brussels IIter. Thus the courts of the Member State of origin have jurisdiction either under Art. 7(1) or Art. 8(1) Brussels IIter so that the question in which Member State the child’s habitual residence is located becomes superfluous.23 15

Pursuant to Art. 2(1) of the PCC or, as the case may be, Arts. 15(1), 21(1) of the PCC, the court seised shall apply the domestic law of the state in which the forum is located based on Art. 8(1) Brussels IIter. This ensures that the original judgment and amendments of it are subject to the same rules of substantive law,24 which allows continuity to be safeguarded.

16

The fact that the international jurisdiction of the Member State of origin continues to apply under geographical and functional restrictions also serves to protect the holder of access rights.25 The holder of access rights seems to be particularly worthy of protection because he or she cannot exercise his or her right of access in the usual way due to the child’s moving. It therefore seems justified that he or she should be able to have the judgment concerning access amended or adjusted in the state whose courts handed down the judgment and not have to appeal to the courts of the state the child moved to, which may be far away. Taking legal action abroad typically involves more expense and time so that there is a risk that the holder of access rights will forgo having his or her rights of access re-arranged.

17

The holder of parental responsibility, who determines that the will child move and (typically) moves with the child, will usually try to bring about an arrangement concerning rights of access by mutual agreement before the child’s residence is (finally) relocated26 or he or she will appeal to the courts of the Member State of origin; otherwise he or she would have to conduct proceedings to amend or adjust the judgment concerning access in a Member State in which he or she no longer resides at a later date, which may lead to him or her incurring higher costs and spending more time. The provision also prevents a holder of parental responsibility – such as one of the parents – from quickly relocating the child’s habitual residence with the aim of causing a change to the rights of access in his or her favour.27 The provision therefore counteracts forum shopping.28 5. Scope

18

Art. 8 Brussels IIter only covers the rights of access as one aspect of parental responsibility.29 For the definition of rights of access see Art. 2(2) point 10 Brussels IIter and the commentary on it. Art. 8(1) Brussels IIter does not apply to all other areas of parental responsibility – such as custody or the placement of the child in institutional care30, 31. Neither can the provision be applied to actions for damages for costs incurred while exercising the rights of access.32 Based on this conscious restriction 23 Rauscher in Rauscher, EuZPR/EuIPR4, IV, Art. 9 Brüssel IIa-VO note 2 as well as note 12. 24 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 14. 25 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/15; Hausmann, Familienrecht2, F note 112; Nademleinsky, EF-Z 2008, 158; Rieck in Schulz/Hauß, Familienrecht3, Art. 9 EheVO 2003 note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 1; Tödter, Europäisches Kindschaftsrecht, p. 47; OLG Koblenz, NJW 2008, 238; OLG Frankfurt Report 2007, 854 = NJW 2008, 238. 26 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 1; Nademleinsky, EF-Z 2008, 158; Nademleinsky/Neumayr, IFR2 note 8.39; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 5. 27 Coester-Waltjen, FamRZ 2005, 241, 244; Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 1. 28 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 14; Hausmann, Familienrecht2, F note 112; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 4. 29 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 1; Frank in Gebauer/Wiedmann, Zivilrecht3, Art. 9 EuEheVO note 2; Kress, Zuständigkeit, p. 114; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 2; Weber in Mayr, EuZVR note 4.116. Cf. also W und V/X (Case C-499/15), ECLI:EU:C:2017:118. 30 Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 2; Gruber, IPRax 2005, 293, 297; Hausmann, Familienrecht2, F note 113; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 4; Solomon, FamRZ 2004, 1409, 1412.

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Art. 8 Brussels IIter

in scope, the provision may also not be applied analogously to the other areas of parental responsibility. With regard to all other aspects, international jurisdiction is determined as a rule (1) pursuant to an agreement on the choice of court under Art. 10 Brussels IIter, (2) pursuant to Art. 7(1) Brussels IIter if the child has already established habitual residence in the state it moved to, or (3) in the absence of any (ascertainable) habitual residence pursuant to Art. 11 Brussels IIter. During the first three months after the child’s move, the courts of the state to which the child has moved do not, however, have jurisdiction to amend or adjust judgments concerning access that has already been handed down.33 However, the courts of this state may order interim measures pursuant to Art. 15 Brussels IIter. See the commentary on Art. 15 Brussels IIter for the conditions.

19

The restriction in scope of Art. 8(1) Brussels IIter leads to friction with Art. 20(2) and (3) Brussels II- 20 ter: If the holder of parental responsibility who has moved with the child and established a new habitual residence with the child in another Member State applies for an amendment to rights of custody, the courts of the state to which they have moved have jurisdiction, while an amendment or adjustment to a judgment concerning access must be made by the courts of the Member State of origin.34 If the courts of the state to which they have moved are appealed to under Art. 7(1) Brussels IIter concerning a custody matter and if an amendment to a judgment concerning a court arrangement concerning access is applied for under Art. 8(1) Brussels IIter before the courts of the Member State of origin, Art. 20(2) Brussels IIter is to be applied because the custody matter and the amendment to the court judgment concerning access concern the same claim within the meaning of Art. 20(2) Brussels IIter (see the commentary on Art. 20 Brussels IIter).35 When applying Art. 20(2) Brussels IIter, the court that is seised later must firstly suspend the proceedings of its own motion based on the principle of priority. As long as proceedings are pending, the other proceedings may not be conducted, which may mean that gaps in legal protection may appear. Thus Art. 20(2) Brussels IIter should be interpreted teleologically so that it is possible for both the access proceedings and the custody proceedings to be conducted in parallel.36 Art. 8(1) Brussels IIter leads to a division of the jurisdiction concerning parental responsibility. In this case it seems reasonable to undertake a transfer of jurisdiction pursuant to Art. 12 Brussels IIter37. This ensures that the questions that arise in the proceedings are decided in a consistent manner.

21

6. Prerequisites for application a) General remarks The prerequisites for applying Art. 8(1) Brussels IIter are that (1) a judgment concerning rights of access is due to be amended (see Art. 8 note 32 et seq. [Garber]), (2) the child has had habitual residence in its Member State of origin (see Art. 8 note 21 et seq. [Garber]), (3) the child has established a new habitual residence in the state to which it has moved (but see also the restriction in Art. 8 note 22 [Garber]), 31 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 11; Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 5. 32 Different opinion Hausmann, Familienrecht2, F note 114. 33 Nademleinsky/Neumayr, IFR2 note 8.45; cf. also OLG Koblenz, NJW 2008, 238; OLG München, FamRZ 2011, 1887. 34 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 8 and note 9. 35 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 8 and note 9. 36 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 17; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/22; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 21; different opinion Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 8 as well as note 9; Hausmann, Familienrecht2, F note 125. 37 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 8.

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights (4) the child has moved to another Member State lawfully (see Art. 8 note 23 [Garber]), (5) the applicant or respondent is a holder of rights of access (see Art. 8 note 28 [Garber]), (6) the holder of rights of access continues to have his or her habitual residence in its Member State of origin (see Art. 8 note 29 [Garber]), (7) a judgment concerning rights of access already exists (see Art. 8 note 32 [Garber]), (8) the application is made within three months of the move (see Art. 8 note 36 [Garber]). b) Habitual residence of the child in the Member State of origin 23

The conditions for applying Art. 8(1) Brussels IIter are that the habitual residence of the child was located in the Member State whose courts have handed down the arrangement concerning access. Art. 8 Brussels IIter thus does not apply to amendments to court arrangements to access if the jurisdiction of the court seised is based on a different provision concerning jurisdiction.38 c) New habitual residence of the child in the state to which it has moved

24

According to the explicit wording of the provision, the child must have established its habitual residence in the new Member State.39 As a rule, the point in time when habitual residence in a Member State is given up corresponds to the point in time when a new habitual residence is established in another Member State.40 However, it is also conceivable that one habitual residence is given up without a new habitual residence being established.41 In the latter case, according to the explicit wording Art. 8(1) Brussels IIter is not to be applied.42 This restriction is not convincing because it puts the holder of access rights at a considerable disadvantage if the child does not establish an habitual residence in the state it has moved to.43 Furthermore, the restriction leads to the paradoxical result of the courts of the state the child has moved to having jurisdiction under Art. 11 Brussels IIter based purely on its presence although if it established habitual residence this Member State would not have jurisdiction.44 According to this, residence would lead to jurisdiction by itself while habitual residence in this Member State would stand in opposition to jurisdiction. Thus, Art. 8(1) Brussels IIter should be applied analogously if the child gives up its habitual residence without establishing a new habitual residence in another Member State.45 The interpretation taken here ensures that the courts of the Member State of origin do not have to examine whether the child has already established an habitual residence in the state it has moved to;46 examining this can sometimes be laborious. d) Moving lawfully to another Member State

25

The child must have moved from one Member State to another Member State lawfully.47 38 Cf. also Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 13; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 5. 39 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 20; Looschelders, JR 2006, 45, 46. 40 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 6. 41 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 6. 42 Likewise Commission, Practice Guide p. 30; Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/ 2003 note 9; Nademleinsky/Neumayr, IFR2 note 8.42. 43 Coester-Waltjen, FamRZ 2005, 241, 244; Verschraegen in König/Mayr, EuZVR I p. 96; cf. also Tödter, Europäisches Kindschaftsrecht, p. 46 f, which de lege ferenda requires a solution of this kind. 44 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 6; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 6. 45 Coester-Waltjen, FamRZ 2005, 241, 244 et seq.; Hausmann, Familienrecht2, F note 118; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 6; different opinion Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/2003 note 9; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 18. 46 Cf. also Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 12; OLG München 33 FamRZ 2011, 1887. 47 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 22; Solomon, FamRZ 2004, 1409, 1412; OLG München, FamRZ 2011, 1887; OLG Stuttgart, NJW 2012, 2043.

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The Regulation does not contain a definition of the term “move lawfully”. By this should be under- 26 stood relocating actual residence to another Member State; hence, it must involve physically changing location.48 It is not sufficient for the child to only be in another Member State for a short time – such as for a language exchange or holiday.49 Moving is thus only to be assumed if the previous habitual residence is intentionally given up.50 It is not necessary for the move to be recognisable to others – particularly by holders of access rights; in this regard factual aspects alone are relevant. A move is lawful if the child has not been wrongfully removed or retained (Art. 2(2) point 11 Brus- 27 sels IIter).51 For the interpretation of the term “wrongful removal or retention of a child” see the definition in Art. 2(2) point 11 Brussels IIter. According to this, “wrongful removal or retention” means the removal or retention of a child where: (a) such removal or retention is in breach of rights of custody acquired by decision, 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) 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. For details see Art. 2(2) point 11 Brussels IIter and the commentary on it. If the move is not lawful, Art. 9 Brussels IIter is applicable (see Art. 9 note 19). However, if in the event of wrongful abduction the holder of parental responsibility subsequently consents to the removal or retention of the child pursuant to Art. 9(a) Brussels IIter, the particular jurisdiction pursuant to Art. 9 Brussels IIter no longer pertains and Art. 8 Brussels IIter is to be applied analogously.52 It would not appear convincing that the holder of access rights should not be able to rely on Art. 8 Brussels IIter in this case, especially since he or she is at least as worthy of protection as he or she is in the case of a move that is originally lawful.

28

Art. 8 Brussels IIter only applies when the child has moved from one Member State to another Mem- 29 ber State. Accordingly, the scope of the provision does not cover jurisdiction when the child moves to a third country53 or from a third country to a Member State.54 In these cases the jurisdiction of the state whose courts handed down the judgment concerning access does not continue. If the child moves to a third country, the Member State in which it had its previous habitual residence does not have jurisdiction under Art. 7(1) Brussels IIter after habitual residence has been given up in this state – as long as proceedings are not pending in this state (see Art. 7 note 63; this especially does not apply if the child relocates its habitual residence to a contracting state of the PCC or PIC – neither treaty establishes the principle of perpetuatio fori); jurisdiction can only arise from other elements Brussels IIter (e.g., under Arts. 10 or 12 Brussels IIter) or from international treaties or domestic rules.55 If the child moves from a third country to a Member State, Art. 7(1) or Art. 11 Brussels IIter applies. e) Concerning the holders of access rights The scope of Art. 8 Brussels IIter is not limited to the parent who hold rights of access – contrary to the German wording of Brussels IIbis (now contrary to the German version of Art. 8 Brussels IIter in 48 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 4; Hausmann, Familienrecht2, F note 118; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 6; Weber in Mayr, EuZVR note 4.117. 49 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 6. 50 Cf. also OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky). 51 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 4; Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 7; Fleige, Zuständigkeit, pp. 228 et seq.; Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/ 2003 note 6; Geimer in Zöller3,4, Art. 9 VO (EG) Nr 2201/2003 note 2; Nademleinsky/Neumayr, IFR2 note 8.41; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 5; Weber in Mayr, EuZVR note 4.117. 52 Hausmann, Familienrecht2, F note 119; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 8. 53 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 3; Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/2003 note 7; Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 2 und note 4; Heiderhoff in MünchKommBGB8, Art. 9 Brüssel IIa-VO note 4; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 7. 54 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 3; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 7. 55 Hausmann, Familienrecht2, F note 117.

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights which the mistakes in translation have been corrected).56 Hence, all holders of access rights (such as grandparents or step-parents) are included in the scope of the provision. f) Continued habitual residence of the holder of access rights in the Member State of origin 31

According to the explicit wording of Art. 8(1) Brussels IIter, the holder of access rights must “continue” to have his or her habitual residence in the Member State in which the child’s habitual residence was located. According to this, the habitual residence of the holder of access rights must have already been located in this state before the child moved57 and still be located there at the point in time when the application for the amendment or adjustment is made. This is determined by the point in time when the application becomes pending pursuant to Art. 17 Brussels IIter.58 Otherwise the provision’s material justification to protect the holder of access rights by him or her appealing to the courts of the Member State in which his or her own habitual residence is located would not be realised.59 If the holder of access rights relocates his or her habitual residence to another Member State or to a third country after the judgment has been handed down, only the courts of the Member State in which the child’s new habitual residence is located have jurisdiction pursuant to Art. 7(1) Brussels IIter or – in the absence of an ascertainable habitual residence – the courts according to residence by itself pursuant to Art. 11 Brussels IIter.

32

It can be concluded from the term “continues” that the holder of access rights has to have been resident in this state continuously.60 However, if he or she has given up his or her habitual residence in the Member State whose courts handed down the judgment concerning access, Art. 8 Brussels IIter is not applicable; this also applies when the holder of access rights later re-establishes his or her habitual residence in this Member State.61 g) The role of the holder of access rights is not determinative for the proceedings

33

Whether the holder of access rights or holder of parental responsibility who determines that the child will move and (as a rule) moves with the child (this is usually a parent)requests the amendment or adjustment is irrelevant to the application of Art. 8(1) Brussels IIter.62 h) Judgment in the previous Member State

34

The prerequisites for applying Art. 8(1) Brussels IIter are that a judgment concerning access rights has already been handed down in the Member State of origin, which is now to be amended. An arrangement is to be made that deviates from the previously made court arrangement concerning access.63 A first-time court arrangement of access rights may not be based on jurisdiction under Art. 8

56 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/19 f. In this direction also Heiderhoff in MünchKommBGB8, Art. 9 Brüssel IIa-VO note 3. 57 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 8; Solomon, FamRZ 2004, 1409, 1412; crit Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 11. 58 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 29; Gruber in Heidel/Hüßtege/Mansel/ Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 6. 59 Cf Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 11. 60 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 8; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 30; Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/2003 note 11; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 6; Hausmann, Familienrecht2, F note 123; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 11; Solomon, FamRZ 2004, 1409, 1412; different opinion Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 22. 61 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 8. 62 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 31. 63 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 3; OLG München, FamRZ 2011, 1887; cf. also Hausmann, Familienrecht2, F note 115.

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Brussels IIter.64 If a judgment concerning access rights has not yet been made in the Member State of origin, the Member State in which the child’s habitual residence is located has jurisdiction pursuant to Art. 7(1) Brussels IIter. The term “judgment” is to be interpreted autonomously according to EU law. Whether a state 35 authority was constitutively involved in handing down this “judgment” so that it is potentially enforceable is determinative. Apart from court judgments, court-approved settlements – such as those under section 156(2) of the German FamFG – are also included.65 According to this, purely out-ofcourt settlements concerning access rights are not sufficient.66 However, the judgment concerning access rights does not have to be final and binding67 or (provisionally) enforceable.68 Neither does an agreement made before the court need to already have legal effect.69 Thus it also covers cases in which an agreement made before court does not yet have legal effect because a judgment on the court’s approval has not yet been handed down.70 Since the application of Art. 8(1) Brussels IIter requires that an arrangement concerning access has already been made in court, this provision does not apply if the courts of the Member State of origin are already seised of access proceedings and the child moves during the proceedings before a judgment concerning access rights has been handed down.71 In this case, the courts retain jurisdiction under the principle of perpetuatio fori (see Art. 7 note 53).72 They do not have jurisdiction for subsequent amendments to the judgment concerning access because they were able to consider the new point of the child’s moving in the (first) proceedings.73

36

Art. 8(1) Brussels IIter is, however, to be applied – contrary to the wording of the provision –, if the judgment in the Member State of origin is only handed down after the move, and the circumstance that the child has moved could not be taken into account in coming to the judgment for reasons of procedural law74 – such as due to a restriction in that state on the examination of questions of law in appeals proceedings.

37

64 Fleige, Zuständigkeit, p. 224; Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 2; Hausmann, Familienrecht2, F note 115; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 10; Rieck in Schulz/Hauß, Familienrecht3, Art. 9 EheVO 2003 note 2; Tödter, Europäisches Kindschaftsrecht, p. 45; OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik). 65 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 33; Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 2. 66 Cf Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 3; Geimer in Zöller3,4, Art. 9 VO (EG) Nr2201/2003 note 1; Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 2 und note 5; Gruber, IPRax 2005, 293, 297; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 3; Hausmann, Familienrecht2, F note 121; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note C 57; different opinion Rieck in Schulz/Hauß, Familienrecht3, Art. 9 EheVO 2003 note 5; different opinion on the draft regulation Busch, IPRax 2003, 218, 221. 67 Frank in Gebauer/Wiedmann, Zivilrecht3, Art. 9 EuEheVO note 2; Gruber, IPRax 2005, 293, 297; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 12. 68 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 12; different opinion Hausmann, Familienrecht2, F note 120. 69 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 12. 70 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 12. 71 Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 4; Hausmann, Familienrecht2, F note 120; Nademleinsky/Neumayr, IFR2 note 8.40; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 7; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 9; E/B (Case C-436/13), ECLI:EU:C:2014:2246. 72 Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note C 57; OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik). 73 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 9; OGH 3 Ob 213/07f iFamZ 2008/52 (Fucik); leaving the question unanswered OLG Köln, FamRZ 2017, 1514 (Menne) = NZI 2017, 855. 74 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 3; Hausmann, Familienrecht2, F note 120; in this direction also Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 9; on the other hand without differentiation Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 9.

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Art. 8 Brussels IIter Continuing jurisdiction in relation to access rights i) Application within three months of the move 38

Art. 8(1) Brussels IIter is only to be applied if the application to amend the judgment concerning access rights is made within three months from the child’s move. During the time period laid down by Art. 8(1) Brussels IIter the court must have been seised within the meaning of Art. 17 Brussels IIter.75

39

The time period begins from the relocation of the child’s residence, i.e., when the child physically moves away.76 Whether a new habitual residence has already been established in the state the child moves to is irrelevant (see note 22). The point in time in which the holder of access rights receives notice of the move is also insignificant.77 Thus the time period laid down in Art. 8(1) Brussels IIter may already have expired by this point in time78 so that the holder of access rights must request the amendment to the court arrangement concerning access in the Member State that has jurisdiction under Art. 7(1) Brussels IIter or Art. 13(1) Brussels IIter.

40

If the child has not yet given up its habitual residence in the Member State of origin despite having moved, continued jurisdiction is stipulated by Art. 7(1) Brussels IIter79. If it has been established that the application has been made within three months of the move, the examination whether the child has already given up its previous habitual residence – which can sometimes prove difficult – does not need to be carried out. In both case the Member State of origin has international jurisdiction.

41

In practice establishing the point in time of the move can be difficult because moving usually takes place in stages. Indications for determining this may include a long duration of residence within a certain period of time, the “move” of the child’s personal effects and the intention to move.80

42

Contrary to a minority opinion, it does not follow from the restriction that the application must be made within three months of the move81 that the proceedings must also be concluded and the judgment concerning amendment handed down within three months.82 Otherwise, the practical significance of the provision would be extremely small.83 7. Does the principle of perpetuatio fori apply?

43

It is contested whether the principle of perpetuatio fori applies when the international jurisdiction of the Member State is based on Art. 8(1) Brussels IIter. According to one part of the scholarship84 the principle does not apply because in contrast to Art. 7(1) Brussels IIter, Art. 8(1) is not based on the 75 Geimer in Zöller3,4, Art. 9 VO (EG) Nr 2201/2003 note 8; Hausmann, Familienrecht2, F note 122; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 14; Solomon, FamRZ 2004, 1409, 1412; OLG München, FamRZ 2011, 1887. 76 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 37; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 15; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 10; Tödter, Europäisches Kindschaftsrecht, p. 46. 77 OLG Koblenz OLG Report Frankfurt 2007, 854 = FamRZ 2008, 813 = FD-FamR 2007, 242717 = NJW 2008, 238. 78 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 15. 79 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 4. 80 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 15. 81 Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note C 57; probably likewise Rausch, FuR 2005, 53, 57. 82 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 12; Dörner in Saenger, ZPO9, Art. 9 EuEheVO note 9; Geimer in Geimer/Schütze, EuZVR4, Art. 9 VO (EG) Nr 2201/2003 note 14; Gruber, IPRax 2005, 293, 297; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 5; Hausmann, Familienrecht2, F note 122; Kress, Zuständigkeit, p. 116; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 17; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIaVO note 10; Solomon, FamRZ 2004, 1409, 1412; OLG München, FamRZ 2011, 1887. 83 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 5. 84 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 23; likewise Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note C 57; different opinion Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/23.

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point in time when the application is made. According to this, the court should decline jurisdiction if one of the prerequisites for jurisdiction pursuant to Art. 8(1) Brussels IIter lapses during the proceedings, such as because the holder of access rights relocates his or her habitual residence pursuant to Art. 8 Brussels IIter to another Member State during the proceedings. On this view, a transfer of jurisdiction under Art. 12 Brussels IIter is not admissible because the court no longer has jurisdiction.85 I do not find the view that the principle of perpetuatio fori should not apply to the scope of Art. 8(1) Brussels IIter convincing. Due to considerations for procedural economy and for the protection of the child, it should also apply to the scope of Art. 8(1) Brussels IIter. The principle of perpetuatio fori should also apply – especially for reasons of procedural economy – to the scope of Art. 9(1) Brussels IIter. Recital 21 2nd sentence Brussels IIter can be cited in support of this interpretation: According to this, legal certainty and efficiency in judicial matters would justify the retention of this jurisdiction in the case of proceedings that are already pending until a final and binding judgment has been handed down in these proceedings or until the proceedings have been concluded in some other way. Even though Recital 21 sentence 1 on Brussels IIter only refers to an amendment to habitual residence, Recital 21 Brussels IIter does not restrict the application of the principle of perpetuatio fori to Art. 7 Brussels IIter, so that Art. 8 Brussels IIter and all the other provisions on jurisdiction are also included. The justification given here for the retention of jurisdiction – legal certainty and efficiency – apply to all provisions on jurisdiction. Only this interpretation is also able to ensure that a transfer of jurisdiction may be carried out. For details see Art. 7 Brussels IIter note 55.

IV. “Recognition” of jurisdiction – Art. 8(2) Brussels IIter According to Art. 8(2) Brussels IIter, Art. 8(1) Brussels IIter is not to be applied if the holder of access 44 rights has recognised the jurisdiction of the courts of the Member State of the child’s new habitual residence by taking part in proceedings before these courts without contesting their jurisdiction. This formulation is unfortunate.86 What it intends to say is that the lack of international jurisdiction of the courts of the Member State in which the child has its new habitual residence is remedied by the holder of access rights entering an appearance in the proceedings without objecting.87 Thus, if the holder of access rights enters an appearance in the proceedings without objecting to the lack of international jurisdiction, this remedies the lack of jurisdiction. This seems appropriate because the holder of access rights is waiving the protection of his or her own rights;88 this does not impair the child’s interests because the state that has jurisdiction pursuant to 7(1) Brussels IIter has comprehensive jurisdiction; its power of review now also includes rights of access.89

45

Concerning the question under what conditions a person may enter an appearance in proceedings without objecting, regard should be given to the scholarship and case law concerning Art. 24 of Brussels I and Art. 26 of Brussels Ia.90

46

According to this, entering an appearance in the proceedings is to be understood as every kind of de- 47 fence which is directly aimed at rejecting or dismissing the proceedings to obtain legal protection if it is clear from the defensive actions that the respondent accepts the court’s competence to pass judgment. If the respondent questions the seised court’s activity in judging the case in its entirety, such as by making the defence of a lack of domestic jurisdiction (due to immunity on the basis of interna-

85 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 9 EuEheKindVO note 23. 86 Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 9; Rieck in Schulz/Hauß, Familienrecht3, Art. 9 EheVO 2003 note 8. 87 Kress, Zuständigkeit, pp. 116 f.; Solomon, FamRZ 2004, 1409, 1412; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 13. 88 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 9. 89 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 9. 90 Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 13; Rauscher, EuLF 2005, I-39; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 22.

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Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child tional law), this defence does not constitute entering an appearance in the proceedings even though it is aimed at having the action dismissed.91 48

The possibility of a lack of international jurisdiction being remedied by entering an appearance in the proceedings without objecting seems appropriate because the holder of access rights is merely waiving the protection of his or her own interests.92 When the respondent enters an appearance in the proceedings without objecting, only the courts of the Member State in which the child has its new habitual residence may gain jurisdiction so that the best interests of the child are also adequately taken into account.93

49

The provision applies by analogy if the holder of access rights applies for an amendment to the judgment concerning access rights himself or herself in the state in which the child’s new habitual residence is located.94

50

He or she is entitled to a right of selection between the courts of the previous and those of the new state of residence.95

51

The fact that the holder is requesting the enforcement of a court arrangement concerning access in the state that the child moved to does not, however, mean that he or she recognises the courts of this state as having jurisdiction with respect to the amendment to the judgment concerning access.96

52

Neither is making an application for forced return or an application for custody in the state the child moved to sufficient to count as recognition within the meaning of Art. 8(2) Brussels IIter97; rather, recognition must always relate to the matter of access.98

Article 9 Jurisdiction in cases of the wrongful removal or retention of a child Without prejudice to Article 10, in the case of the wrongful removal or retention of a 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 application for return has been lodged with the 91 Instead of many Simotta in Fasching/Konecny, Kommentar V/12, Art. 24 EuGVVO note 18. 92 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 9; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 45. 93 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 9; Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 45. 94 Commission, Practice Guide, p. 17; Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 9; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 9 EheVO 2003 note 7; Hausmann, Familienrecht2, F note 127; Schäuble in Althammer, Brüssel IIa-VO, Art. 9 Brüssel IIa-VO note 13. 95 Dilger in Geimer/Schütze, IRV Art. 9 VO Nr 2201/2003 note 9. 96 Hausmann, Familienrecht2, F note 127. 97 Hausmann, Familienrecht2, F note 127; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 22. 98 Garber in Gitschthaler, Familienrecht, Art. 9 Brüssel IIa-VO note 47; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 9 Brüssel IIa-VO note 22.

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(ii) (iii)

(iv) (v)

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competent authorities of the Member State to which the child has been removed or where the child is being retained; an application for return lodged by the holder of rights of custody has been withdrawn and no new application has been lodged within the time limit set in point (i); an application for return lodged by the holder of rights of custody was refused by a court of a Member State on grounds other than point (b) of Article 13 (1) or Article 13(2) of the 1980 Hague Convention and that decision is no longer subject to ordinary appeal; no court was seised as referred to in Article 29(3) and (5) in the Member State where the child was habitually resident immediately before the wrongful removal or retention; a decision on rights of custody that does not entail the return of the child has been given by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

I. 1. 2. 3.

General remarks . . . . . . . . . . . . . . . . Introduction and rationale . . . . . . . . . . Comparison with the PCC . . . . . . . . . . Relationship to other provisions on jurisdiction in the Regulation . . . . . . . . . . .

. . .

1 1 4

.

5

II. 1. 2. 3. 4. 5.

General conditions for application . . . . . Geographical scope . . . . . . . . . . . . . . Functional scope . . . . . . . . . . . . . . . . Temporal scope . . . . . . . . . . . . . . . . . Application of the HCA is not a condition Wrongful removal or retention . . . . . . .

. . . . . .

9 9 12 16 18 20

III. Change of jurisdiction . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . 2. Art. 9(a) Brussels IIter – Consent of all holders of rights of custody . . . . . . . . 3. Art. 9(b) Brussels IIter – a minimum of a qualified one-year residence . . . . . . . . a) General remarks . . . . . . . . . . . . .

. . 22 . . 22 . . 27 . . 37 . . 37

b) Minimum residence in the Member State to which the child has been removed of one year . . . . . . . . . . . . . . . . . . . . c) Successfully settled . . . . . . . . . . . . . . d) Additional conditions . . . . . . . . . . . . aa) No timely application for the child’s return . . . . . . . . . . . . . . . . . . . bb) Withdrawal of the application and no new application is made in time . . . cc) Final and binding rejection of an application for return for reasons other that those stated in Art. 13(1)(b) or Art. 13(2) of the HCA . . . . . . . . . dd) No court in the Member State of origin has been seised pursuant to Arts. 29(3) and (5) Brussels IIter . . . ee) Decisions on rights of custody handed down by the Member State of origin in which the child’s return was not ordered . . . . . . . . . . . . . . . 4. Examination as to jurisdiction . . . . . . . .

39 43 44 44 48

50 52

55 62

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020) 13; Baetge, Zum gewöhnlichen Aufenthalt bei Kindesentführungen, IPRax 2001, 573; Binder, EuGH zur Reichweite einer Schutzmaßnahme iSv Art. 20 VO Brüssel IIa, iFamZ 2010, 171; Breuer, Ehe- und Familiensachen in Europa (2008); Bucher, Das Kindeswohl im Haager Entführungsabkommen, FS Kropholler (2008), p. 263; Busch/Rölke, Europäisches Kinderschutzrecht mit offenen Fragen, FamRZ 2004, 1338; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Coester, Kooperation statt Konfrontation: Die Rückgabe entführter Kinder nach der Brüssel IIa Verordnung, in FS Schlosser (2005), p. 135; Coester-Waltjen, Multa non multum im internationalen Familienverfahrensrecht, in FS Geimer (2002) 139; Coester-Waltjen, Aktuelle Entwicklungen im Europäischen internationalen Familienverfahrensrecht, Jura 2004, 839; Coester-Waltjen, Die Berücksichtigung der Kinderinteressen in der neuen Verordnung Brüssel IIa, FamRZ 2005, 241; Dutta, Europäische Zuständigkeiten mit Kindeswohlvorbehalt, in FS Kropholler (2008), p. 281; Dutta/Scherpe, Die Durchsetzung von Rückführungsansprüchen nach dem Haager Kindesentführungsübereinkommen durch deutsche Gerichte, FamRZ 2006, 901; Eppler, Grenzüberschreitende Kindesentführung (2015); Fleige, Die Zuständigkeit für Sorgerechtsentscheidungen und die Rückführung von Kindern nach Entführungen nach Europäischem IZVR (2006); Finger, Internationale Kindesentführung – HKindEntÜ, VO Nr 2201/2003 und dt IntFamRVG, FuR 05, 443; Fucik, Kindesentführung und Sorgerecht. Die 5. Spezialkonferenz zum HKÜ, iFamZ 2007, 218; Fucik, Kindesentführungen: Letztes Wort zum letzten Wort des Ursprungstaates, Zak 2010, 267; Gruber, Die neue EheVO und die deutschen Ausführungsgesetze, IPRax 2005, 293; Gruber, Effektive Antworten des EuGH auf Fragen zur Kindesentführung, IPRax 2009, 413; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Helms, Internationales Verfahrensrecht für Familiensachen in der Europäischen Union, FamRZ 2002, 1593; Heß, Der Verordnungsvorschlag der französischen Ratspräsidentschaft über einen „Europäischen Be-

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Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child suchstitel“, IPRax 2000, 361; Holl, Funktion und Bestimmung des gewöhnlichen Aufenthalts bei internationalen Kindesentführungen (2001); Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (2008); Hoyer, Haager Minderjährigenschutzabkommen und Wechsel des gewöhnlichen Aufenthalts während des anhängigen Verfahrens, IPRax 1984, 164; Janzen/Gärtner, Rückführungsverweigerung bei vorläufiger Zustimmung und internationale Zuständigkeit im Fall von Kindesentführungen, IPRax 2011, 412; Kaller, Zur Kindesentführung in der neuen Brüssel II-VO, iFamZ 2006, 178; Keese, Die Kindesentführung durch einen Elternteil im europäischen und internationalen Zivilprozessrecht (2011); Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union (2006); Lowe, Negotiating the revised Brussels II regulation, IFL 2004, 205; Lowe, Regulating cross-border access to children, in FS Schwab (2005), p. 1153; Lowe, A Review oft he Application of Article 11 of the Revised Brussels II Regulation, IFL 2009, 27; Mähr, Zuständigkeiten im internationalen Kindschaftsrecht, RZ 1977, 152; Mankowski, Der gewöhnliche Aufenthalt eines verbrachten Kindes unter der Brüssel IIa-VO, GPR 2011, 209; Martiny, Kindesentziehung – „Brüssel II“ und die Staatsverträge, ERA-Forum 2003, 97; McEleavy, The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership, JPrivIntL 2005, 5; Miklau, Gemeinsame Obsorge, Kindesentführung und die VO Brüssel IIa – Wiedereinführung der väterlichen Gewalt durch die Hintertür? iFamZ 2010, 133; Mohs, Brüssel IIa – Die neue EGVerordnung zum internationalen Familienverfahrensrecht, FamPra.ch 2005, 39; Mosser, Internationale Kindesentführungen – eine differenzierte Betrachtung, Juridikum 2006, 159; Nademleinsky, Altes und Neues zur Kindesentführung, EF-Z 2010, 104; Pietsch, Die Widerrechtlichkeitsbescheinigung nach Art. 15 des Haager Übereinkommens über die zivilrechtlichen Aspekte internationaler Kindesentführung, FamRZ 2009, 1730; Pirrung, Haager Kinderschutzübereinkommen und Verordnungsentwurf „Brüssel IIa“, in FS Jayme (2004), p. 701; Rausch, Elterliche Verantwortung – Verfahren mit Auslandsbezug vor und nach „Brüssel IIa“, FuR 2005, 53; Rieck, Kindesentführung und die Konkurrenz zwischen dem HKÜ und der EheEuGVVO 2003 (Brüssel IIa), NJW 2008, 182; Roth/ Döring, Das Haager Abkommen über den Schutz von Kindern, JBl 1999, 758; Schulz, Internationale Regelungen zum Sorge- und Umgangsrecht, FamRZ 2003, 336; Schulz, Das Haager Kindesentführungsübereinkommen und die Brüssel IIa-Verordnung, in FS Kropholler (2008), p. 435; Schulz, Die Zeichnung des Haager Kinderschutz – Übereinkommens von 1996 und der Kompromiss zur Brüssel IIa-Verordnung, FamRZ 2003, 1351; Schütz, Vormundschafts- und pflegschaftsrechtliche Fragen im Verhältnis zwischen Österreich und der Bundesrepublik Deutschland unter besonderer Berücksichtigung von Unterhaltsfragen, ÖA 1982, 27; Schütz, Zwischenstaatliche Vereinbarungen, die für Familienrichter bedeutsam sein könnten, RZ 2005, 234; Schwimann, Das Haager Minderjährigenschutzabkommen und seine Anwendung in Österreich, JBl 1976, 233; Siehr, Die Eheverordnung von 2003 und das MSA von 1961, in FS Schwab (2005), p. 1267; Siehr, Zum persönlichen Anwendungsbereich des Haager Kindesentführungsübereinkommens von 1980 und der EuEheVO, IPRax 2010, 583; Siehr, Kindesentführung und EuEheVO, IPRax 2012, 316; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Tews, Abstammungsrecht, Adoption, Besuchsrecht, Fortpflanzungsmedizingesetz, Informationsrechte, Namensänderung, Obsorge, Kindesentführung, Internationale Abkommen (2008); Tödter, Europäisches Kindschaftsrecht nach der Verordnung (EG) Nr 2201/2003, 2010; Völker, Die wesentlichen Aussagen des BVerfG zum Haager Kindesentführungsübereinkommen – zugleich ein Überblick über die Neuerungen im HKÜ-Verfahren aufgrund der Brüssel IIa-Verordnung, FamRZ 10, 157; Vomberg/Nehls, Rechtsfragen der internationalen Kindesentführung (2002); Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel II-Verordnung, IPRax 2001, 73; Weitzel, 10 Jahre Kindesentführungsübereinkommen, DAVorm 2000, 1059; Winkler von Mohrenfels, Der Kindeswille im Rahmen des Haager Kinderentführungsübereinkommens, in FS Geimer (2002), p. 1527.

I. General remarks 1. Introduction and rationale 1

Art. 9 Brussels IIter regulates international jurisdiction in the event of the wrongful removal or retention of a child. This provision corresponds to Art. 7(1) of the PCC, but also exhibits significant differences in its details (see Art. 9 note 3 [Garber]).

2

If a child is wrongfully removed or retained, it may lose its habitual residence in the state in which it was located before it was illegally removed (afterwards: Member State of origin) and establish a new habitual residence in the state to which it was wrongfully removed or in which it was retained (afterwards: Member State to which it was removed).1 The integration of the child in the Member State to which it was removed, and thus the establishment of habitual residence, cannot be prevented either 1 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 1; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/ 2003 note 4; Povse/Alpago (Case C-211/10 PPU), ECLI:EU:C:2010:400.

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by the opposition of the holder of parental responsibility who (also) has rights of custody2 or by the opposition of the child3. A new habitual residence comes about namely when the child has been integrated into its new social and family environment (see Art. 7 note 23 [Garber] for details). Even though the requirements made for the child’s integration in the case of wrongful removal or retention are stricter than those for a lawfully change of residence, and thus changing habitual residence can only take place after a not inconsiderable amount of time has passed (see Art. 7 note 35 [Garber])4, illegally removing the child does not by itself prevent a change to habitual residence. In order not to privilege the abductor with respect to the law on jurisdiction5, and in order to protect 3 the holder of parental responsibility whose rights of custody have been breached by the wrongful abduction,6 Art. 9 Brussels IIter stipulates the jurisdiction of the courts of the Member State of origin (whereby it deviates from Art. 7 Brussels IIter), even if the child acquires habitual residence in the Member State to which it was removed.7 The Member State to which it was removed only gains jurisdiction once the conditions stated in Art. 9(a) or (b) Brussels IIter have been met. Art. 9 Brussels IIter therefore brings about the continuation of the jurisdiction of the Member State of origin.8 The extended jurisdiction of the Member State of origin is supposed to reduce the motivation to abduct children illegally within the Member States Brussels IIter, and in particular to prevent someone who wrongfully removes or retains a child from obtaining a change of jurisdiction to his or her advantage by acting illegally.9 This provision supplements Arts. 12 and 13 of the HCA, which merely regulate international jurisdiction for returning the child and do not regulate international jurisdiction for decisions on rights of custody,10 and thereby improves their effectiveness.11 The courts of the Member State of origin may decide on rights of custody based on the provision concerning jurisdiction in Art. 9 Brussels IIter. If the courts of the Member State to which the child has been removed refuses the order to return the child pursuant to the HCA, this judgment of refusal, irrespective of whether it was final or still contestable, may be replaced by a later judgment, which is handed down in proceedings on rights of custody by the court of the Member State of origin (also cf. recital 48 on Brussels IIter). 2. Comparison with the PCC As explained, Art. 9 Brussels IIter corresponds extensively to Art. 7 of the PCC. Art. 7 of the PCC 4 prevents changes to international jurisdiction from made when a child has been wrongfully removed or retained; a change in jurisdiction is only possible if the child has gained habitual residence in another state and a) every holder of rights of custody, institution or other agency has acquiesced in the removal or retention, or b) the child has been resident in the other state for at least one year after the 2 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 5. 3 Baetege, IPRax 2001, 573; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 3. 4 Cf. also Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 5; OLG Nürnberg, IPRspr 2010 Nr 242; OLG Stuttgart, FamRZ 1997, 52; OLG Hamm, NJW-RR 1997, 5. 5 Hausmann, Familienrecht2, F note 129 as well as 133; Heiderhoff in MünchKommBGB8, Art. 10 Brüssel IIaVO note 2. 6 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 1; Hausmann, Familienrecht2, F note 129; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 1; SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021: 7 Cf. also Coester-Waltjen, FamRZ 2005, 241, 245; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 9; Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 4; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 59. 8 Cf. also SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 9 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 3; Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 1; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 1; Heiderhoff in MünchKommBGB8, Art. 10 Brüssel IIa-VO note 2; Hausmann, Familienrecht2, F note 129; Kress, Zuständigkeit, p. 150; Solomon, FamRZ 2004, 1409, 1417. 10 Hausmann, Familienrecht2, F note 130 Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 2. 11 Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 3; cf. also OGH 6 Ob 181/ 09z EF-Z 2010/27 = ZfRV-LS 2010/13 = IPRax 2010/40.

Garber

159

Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child holder of custody rights, institution or other agency knew of its whereabouts or should have known about them, no applications made during this period to return the child are still pending and the child has settled into its new environment. Within the scope Brussels IIter, changing jurisdiction by means of Art. 9(b)(i) to (v) Brussels IIter is made more difficult within the European Union with respect to Art. 7 of the PCC12. 3. Relationship to other provisions on jurisdiction in the Regulation 5

As a lex specialis this provision takes precedence over the general rule on provision in Art. 7(1) Brussels IIter and is thus to be applied with priority.13 Another competing jurisdiction would counter the objective of Art. 9 Brussels IIter.

6

According to its explicit wording, Art. 9 Brussels IIter applies subject to a choice of court agreement pursuant to Art. 10 Brussels IIter. Hence, in the event that a child is illegally removed, the parties also have the option of agreeing to use the courts of another Member State. An agreement on the choice of court according to which the courts of the Member State to which the child has been removed have jurisdiction is also not excluded. Since the holder of parental responsibility having rights of custody who has not consented to the removal or retention of the child must collaborate in a choice of court agreement,14 he or she appears to be adequately protected.15 The child is also protected because under Art. Brussels IIter the exercise of the jurisdiction of the state agreed must be in accordance with the best interests of the child.16 See the commentary on Art. 10 Brussels IIter.

7

In the case of the illegal removal of a child, it is open to question whether it is possible to transfer jurisdiction to a court of the Member State to which the child was removed under Art. 12 Brussels IIter.17 In order to ensure a certain degree of flexibility in exercising jurisdiction in this case as well so that the child’s interests are taken into account as well as possible, transferring jurisdiction within the scope of Art. 9 Brussels IIter is as a rule also permitted. Transferring jurisdiction to the courts of the state to which the child was abducted may, however, only take place in absolutely exceptional cases in order to ensure that the provision’s rationale – to ensure the jurisdiction of the Member State of origin so as not to privilege the abductor with respect to the law on jurisdiction – is not contradicted.18 However, the question has not yet been answered by the ECJ. The Landesgericht Korneuburg (Austria) lodged on 9.2.2022 a request for a preliminary ruling (TT/AK (Case C-87/22): Must Art. 15 of Brussels IIbis (is equivalent to Art. 12 Brussels IIter) be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, 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, may request such a court to assume jurisdiction even in the case 12 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 2 Hausmann, Familienrecht2, F note 152; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 4, 8 and 25. Cf. also Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 59. 13 Coester-Waltjen, Jura 2004, 839, 842; Coester-Waltjen, FamRZ 2005, 241, 244; Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 5; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 4; Hausmann, Familienrecht2, F note 129; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 9; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 11; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 1; CV/DU (Case C-85/18) EU:C:2018:220. 14 Art. 10 Brussels IIter: “[…] the parties, as well as any other holder of parental responsibility have agreed freely upon the jurisdiction, at the latest at the time the court is seised; or b. expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction […]”. 15 Cf. also Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 13. 16 Fleige, Zuständigkeit, p. 297; OGH 5 Ob 173/09s iFamZ 2010/38. 17 So High Court of Justice FLR 2 (2009) 1231; OGH 5 Ob 173/09 EF-Z 2010/58 (Nademleinsky); crit Schulz in FS Jan Kropholler, p. 435, 438 ff.; for a restrictive application Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 13. 18 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 1; different opinion Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 32; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 17; Schulz in FS Jan Kropholler, p. 435, 444, according to which a transfer of jurisdiction should not be made in the case of an illegal transfer or detention.

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where that other Member State has become the place of habitual residence of the child following wrongful removal? In contrast to this, Art. 13 Brussels IIter applies without prejudice to Art. 9 Brussels IIter. This pre- 8 vents in the case of the wrongful removal or retention of a child a request by the Member State to which the child has been wrongfully removed or in which it has been wrongfully retained from being ruled out. A Member State without jurisdiction may not make a request. See the commentary on Arts. 12 and 13 Brussels IIter.

II. General conditions for application 1. Geographical scope Art. 9 Brussels IIter only applies in relations between the Member States.19 According to this, both the Member State of origin and the Member State to which the child has been removed must be Member States Brussels IIter, that is, the child must have been abducted from a Member State and after the abduction have established a new habitual residence in another Member State.20

9

If the child has been abducted from a Member State and taken to a third country, Art. 9 Brussels IIter does not apply.21 In this case, the jurisdiction of the courts of the Member State of origin may arise from Art. 7 of the PCC, which requires that the child has been abducted and brought to another contracting state of the PCC that is not a Member State Brussels IIter and the child has also already established habitual residence in this state. The PIC – or at the most the PIC in conjunction with Art. 14 Brussels IIter – may also act as the domestic law for determining international jurisdiction.22

10

In the case of abduction from a third country to a Member State, the courts of this Member State will have jurisdiction pursuant to Art. 7(1) Brussels IIter if the child has established its habitual residence there; Art. 9 Brussels IIter is not applicable in this case either.23

11

2. Functional scope Art. 9 Brussels IIter not only lays down the international jurisdiction for judgments concerning parental responsibility, that is concerning judgments concerning rights of custody and access, while international jurisdiction for orders to return the child also within the scope Brussels IIter continues to arise from Arts. 12 and 13 of the HCA in conjunction with Arts. 22 et seq. Brussels IIter.24 Thus the jurisdiction of the courts in the Member State to which the child has been removed to decide upon the child’s return pursuant to Arts. 12 and 13 of the HCA affected by Art. 9 Brussels IIter.25

12

Thus, the holder of parental responsibility is not prevented from also making an application for rights of custody under Art. 9 Brussels IIter before the courts of the Member State of origin as well as an application for the child’s return in the new state of residence.

13

Besides carrying out the proceedings for the return of the child according to Arts. 22 et seq. Brussels IIter in conjunction with Arts. 12 and 13 of the HCA26, the courts in the Member State to which the child has been removed also have jurisdiction for application for visiting rights under Art. 21 of

14

19 Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 6; Hausmann, Familienrecht2, F note 136; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 14; LGZ Wien 44 R 638/06h EFSlg 114.844; SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 20 Hausmann, Familienrecht2, F note 136; SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 21 Hausmann, Familienrecht2, F note 136; SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 22 Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 6. 23 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 2; Hausmann, Familienrecht2, F note 136; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 7. 24 C/M (Case C-376/14), ECLI:EU:C:2014:2268; cf. also Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 2. 25 Hausmann, Familienrecht2, F note 153. 26 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 8; Solomon, FamRZ 2004, 1409, 1417.

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Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child the HCA27 as well as regulating the exercise of visiting rights during pending proceedings on return (Art. 7(f) of the HCA)28. If the conditions of Art. 20 Brussels IIter are met, they may also pass interim measures.29 The courts may not, however, transfer interim rights of custody to the holder of parental responsibility who is also the abductor; this would contradict returning the child.30 15

It should be noted that concerning the return of the child within the relations of the EU Member States to each other, Art. 29(6) Brussels IIter is superimposed on the HCA; thus the courts of the child’s previous resident state also have international jurisdiction for a decision on returning him or her. 3. Temporal scope

16

Art. 9 Brussels IIter is to be applied if at the point in time when the child’s residence in the Member State to which it has been removed consolidates into an habitual residence proceedings are not yet pending in the Member State of origin; that is, Art. 9 Brussels IIter is only to be applied if in applying Art. 7(1) Brussels IIter the Member State to which the child has been removed would have international jurisdiction.

17

As long as the child has not established habitual residence in the Member State to which it has been removed after wrongful removal or retention, the courts of the Member State of origin have jurisdiction under Art. 7(1) Brussels IIter.31 If the child’s residence in the Member State to which it has been removed consolidates into habitual residence while the proceedings before the courts of the Member State of origin are pending, the courts of the Member State of origin retain jurisdiction according to the principle of perpetuatio fori.32 4. Application of the HCA is not a condition

18

Even if Art. 9 Brussels IIter supplements Arts. 12 and 13 of the HCA in order to improve their effectiveness, according to the prevailing opinion33, the provision is not restricted to the cases to which the HCA applies. Hence, the rule also particularly covers such cases in which the child has reached 16 years of age.34

19

Since the provision refers to the HCA and to the rules in Arts. 22 et seq. Brussels IIter, conflict between them comes about when the child has reached 16 years of age. The legislators of the Directive have in this respect brought about an interconnection with the HCA, which, however, does not apply to children who have reached 16 years of age. For this reason the reference to the HCA in Art. 9 Brus27 Holzmann, Brüssel IIa-VO p. 171; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 11. 28 Bucher in FS Jan Kropholler, p. 263, 275; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 11. 29 Hausmann, Familienrecht2, F note 134; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 12; Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 5. 30 Deticˇek/Sgueglia (Case C-403/09), ECLI:EU:C:2009:810; Purrucker/Vallés Pérez (Case C-256/09), ECLI:EU:C: 2010:437. 31 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 8; Fleige, Zuständigkeit, p. 290; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 3. 32 Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 3; Hausmann, Familienrecht2, F note 138; Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 4; OLG Stuttgart, FamRZ 2014, 1930; different opinion Breuer, Ehe- und Familiensachen note 245. 33 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 1 Brüssel IIa-VO note 64; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 1; Hausmann, Familienrecht2, F note 154; Heiderhoff in MünchKommBGB8, Art. 10 Brüssel IIa-VO note 1; Nademleinsky, EF-Z 2010, 105; Rausch, FuR 2005, 53, 57; Siehr, IPRax 2010, 583, 585; different opinion Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 7; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 8 EuEheKindVO note 65; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 59; Rieck, NJW 2008, 182, 183; OGH 6 Ob 181/09z, IPRax 2010, 551. 34 Cf. for example Tödter, Kindschaftsrecht, p. 159; different opinion Pirrung in Staudinger, BGB: Brüssel IIaVO, Art. 10 Brüssel IIa-VO note C 59.

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sels IIter must be interpreted teleologically: the holder of parental responsibility who has rights of custody must make the application for return with the courts in the new state of residence, that is, in the Member State to which the child has been removed, and if necessary on the basis of that state’s domestic law.35 An application for return made in the Member State to which the child has been removed is sufficient if it has jurisdiction under Art. 15 Brussels IIter and appropriate national procedures are in place in this case for returning the child;36 otherwise an application to another Member State that has jurisdiction is sufficient.37 5. Wrongful removal or retention Art. 9 Brussels IIter requires that the child has been wrongfully removed from the Member State in which it had its habitual residence to another Member State or has been wrongfully retained there.38 For the interpretation of the term “wrongful removal or retention of a child” see the statutory definition in Art. 2(2) point 11 Brussels IIter.

20

If the removal or retention is not wrongful, the general rules on jurisdiction in Arts. 7(1) and 8 Brussels IIter apply.39

21

III. Change of jurisdiction 1. General remarks A change in international jurisdiction may only be effected if the child acquires its habitual residence in the Member State to which it has been removed and in addition the conditions of Art. 9(a) or (b) Brussels IIter have been met. Thus, the child’s being habitually resident in the Member State to which it has been removed is not sufficient by itself.40

22

If the child is habitually resident in the Member State to which it has been removed and the conditions of Art. 9(a) or (b) Brussels IIter have been met, international jurisdiction for judgments in the area of parental responsibility passes to the courts of the Member State to which the child has been removed. At the same time, the courts in the state of origin lose jurisdiction for such judgments to the extent that the principle of perpetuatio fori does not apply.

23

If the child has not established habitual residence in the Member State to which it has been removed 24 and/or the conditions of Art. 10(a) or (b) Brussels IIter have not been fulfilled, the courts of the Member State of origin retain international jurisdiction for judgment concerning questions of parental responsibility. Brussels IIter prevents jurisdiction from continuing in an unlimited manner; this would not be reconcilable with one of the basic objectives of the Regulation – namely, to act in the interests of the child by giving precedence to the criterium of geographical proximity for this purpose.41

25

To ensure that jurisdiction does not lapse prematurely, the conditions are to be interpreted strictly.42

26

35 Hausmann, Familienrecht2, F note 154. 36 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 22; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 5 n 391. 37 Crit. Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 23. 38 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 8a; Mercredi/Chaffe (Case C-497/10 PPU), ECLI:EU:C:2010:829. 39 Hausmann, Familienrecht2, F note 132. 40 Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 7. 41 SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 42 Povse/Alpago (C-211/10 PPU), ECLI:EU:C:2010:400; cf. also Hausmann, Familienrecht2, F note 138; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 10.

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Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child 2. Art. 9(a) Brussels IIter – Consent of all holders of rights of custody 27

Following Art. 13(1)(a) of the HCA, the jurisdiction of the Member State to which the child has been removed is established if each person, institution or other body having rights of custody has acquiesced to the removal or retention. If consent is given, the jurisdiction of the Member State of origin under Art. 9 Brussels IIter and the courts of the Member State to which the child has been removed gain international jurisdiction under Art. 7 Brussels IIter. If consent is not given by just one person, institution or other body having rights of custody, the courts of the state of origin retain their jurisdiction43 if the conditions of Art. 9(b) Brussels IIter are not met (see Art. 9 note 36 et seq. [Garber])

28

The reason for the provision is that subsequent consent by each person, institution and other body having rights of custody to the change of location brought about by the abduction of the child robs it of this character;44 a material justification for the Member State of origin retaining jurisdiction can no longer be given.

29

It is open to question whether the consent of the holders of rights of custody is sufficient or whether the circle of those entitled to consent should be expanded beyond the holders of rights of custody to all holders of parental responsibility. It should be accepted45, along with the prevailing opinion, that the circle of persons who must give their consent should in principle be interpreted widely. However, it follows from the use of the word “wrongful” that an existing portion of parental responsibility must be violated. A person whose lawful portion of parental responsibility has not been violated by the wrongful removal or retention therefore does not have to consent.46

30

Apart from the persons having rights of custody, the institutions and other bodies having rights of custody must also consent. Institutions which only perform a supervisory function are not included; their consent is not necessary.47

31

The wording of Art. 9 Brussels IIter deviates from the wording of Art. 13(1)(a) of the HCA; according to Art. 13(1)(a) of the HCA, “the person […], having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced to this”. Even if, in contrast to Art. 13(1)(a) of the HCA, Art. 9(a) Brussels IIter does not explicitly mention subsequent acquiescence alongside consent, this is included as a sub-category of consent.48

32

It is sufficient for the person, institution or other body to subsequently consent to the removal or retention or to subsequently acquiesce to the removal or retention.49 In the case of prior consent, as a rule the removal or retention could not become wrongful and Art. 9 Brussels IIter would therefore not apply.50

33

Consent must refer to a long-term change of residence. In contrast, consent to a change of residence that is limited to a certain time is not sufficient.51

34

Consent must be clear, unambiguous and unconditional,52 although implied consent is sufficient.53 If consent is implied, it must be clearly identifiable as consent from the perspective of an objective observer.54 Implied consent may also be assumed if the holder of rights of custody who has knowl43 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 14. 44 Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 15; Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 7. 45 Gottwald in MünchKommFamFG3, Art. 9 EWG VO 2201/2003 note 8; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 19; different opinion Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 15. 46 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 19. 47 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 18. 48 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 13; Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 11. 49 Hausmann, Familienrecht2, F note 139. 50 Dilger in Geimer/Schütze, IRV Art. 10 VO Nr 2201/2003 note 13; Hausmann, Familienrecht2, F note 139. 51 Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 11; see also regarding the HCA OLG Saarbrücken, FamRZ 2011, 1235; OLG Rostock, NJOZ 2004, 1112.

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edge of the material and legal situation consciously does not act55 and it may be concluded from the objective observer’s perspective beyond doubt that this constitutes acquiescence in the removal or retention. Mere inaction in itself is insufficient.56 As stated, consent may not be subject to conditions;57 thus consent to provisional residence subject to making an application for return later is insufficient.58 Promised consent is just as insufficient.59

35

The burden of proof that consent was given is borne by the person who removed the child to another country.60

36

3. Art. 9(b) Brussels IIter – a minimum of a qualified one-year residence a) General remarks If even only one person, institution or other body having rights of custody has not given consent under (a), it is sufficient under (b) – in accordance with Art. 7(1)(b) of the PCC and following Art. 12(1) and (2) of the HCA –, that (1) 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 (2) the child is settled in its new environment andand additionally one of the conditions given in Art. 9(b)(i) – (v) Brussels IIter is met; common to these further conditions is that the holder of rights of custody has not brought or successfully brought return proceedings within the time period of a year.

37

Art. 9(b) Brussels IIter ensures that the Member State of origin only retains jurisdiction for decisions on rights of custody for the length of time that the Member State to which the child has been removed should not exercise them based on the particular circumstances of the wrongful removal or retention of the child.61 As a rule this is only the case while it is still possible to conduct return proceedings under the HCA.

38

b) Minimum residence in the Member State to which the child has been removed of one year The child must have resided in the Member State to which it has been removed for a period of at least 39 one year after the person, institution or other body having rights of custody has had or should have had knowledge of its whereabouts. According to the explicit wording of the provision, the period of a year does not begin with the illegal removal of the child but only begins to run once the holder of rights of custody gains knowledge of the child’s new whereabouts or was liable to have knowledge. For this reason the period begins

52 Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 16; OLG Düsseldorf, FamRZ 2011, 1237. 53 Hausmann, Familienrecht2, F note 139; Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 16; OLG Karlsruhe, FamRZ 2006, 1699; OLG Stuttgart, IPRax 2019, 4345. 54 Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 11; OLG Karlsruhe, NJW-RR 2006, 1590; OLG Nürnberg, FamRZ 2009, 240. 55 Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 8. 56 Hausmann, Familienrecht2, F note 139; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 60. 57 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 20. 58 Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 16; OGH 1 Ob 256/09t iFamZ 2010/133; 5 Ob 17/08y iFamZ 2008/110 = EZ-Z 2008/93. 59 Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 11, OLG Karlsruhe, NJW-RR 2006, 1592. 60 Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 9; OLG Stuttgart, FamRZ 2009, 2017; cf. also SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 61 Heiderhoff in MünchKommBGB8, Art. 10 Brüssel IIa-VO note 8.

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40

Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child again with every change of residence.62 However, short interruptions, such as for holidays, are irrelevant.63 41

If the child is removed to another Member State with the initial consent of the holder of rights of custody and if this person later does not agree to the child continuing to remain in that state, the period of a year only begins once the disagreement has been voiced.64 If the child is then illegally retained, as a rule the point in time is to be taken at which the holder of rights of custody gains knowledge of this. He or she will usually have known for a while where the child is residing but not that the child is not coming back.65

42

It is not necessary for the child to have habitually resided in the state to which it has been removed during the entire period of the year; rather, in this respect residence by itself 66 that has consolidated into habitual residence is sufficient.67 Knowledge of the child’s whereabouts or the fact that they should be known is determinative. It is not sufficient that only the state of residence but not the place of residence is known or should have been known.68 Knowledge means that the person, institution or other body having rights of custody has positive knowledge of the essential circumstances of the child’s whereabouts;69 “should know” means that the person, institution or other body having rights of custody should have known the child’s whereabouts given an appropriate level of attention; ordinary negligence is immaterial. Investigations of a detective nature are in no way necessary.70 c) Successfully settled

43

The child must have settled into its new environment, that is, it must have integrated into the family, social and cultural environment of the state to which it has been removed.71 As a rule this condition is already fulfilled by the establishment of habitual residence in the Member State to which the child has been removed.72 The child who has settled in a state has its habitual residence in this state.73 Thus the requirement of “being settled” typically bears no additional meaning.74 d) Additional conditions aa) No timely application for the child’s return

44

Jurisdiction passes pursuant to Art. 9(b)(i) Brussels IIter to the Member State to which the child has been removed if, within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child no application for the child’s return has been lodged with the competent authorities of the Member State to which it has been removed. This provision matches the child’s interests. He or she has had his or her residence, which has consolidated into habitual residence in the Member State to which it has been removed for a long time; the fact that the courts of the state in which the child now resides make the decisions corresponds to the postulate of geographical proximity. This provision corresponds to Art. 12(2) of the HCA. According to this, the child’s re62 63 64 65 66 67 68 69 70 71 72 73 74

Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 17. Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 9. Hausmann, Familienrecht2, F note 141. Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 10. Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 11. Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 11; Hausmann, Familienrecht2, F note 141; Solomon, FamRZ 2004, 1409, 1417. Hausmann, Familienrecht2, F note 141; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 61. Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 24. Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 10 Brüssel IIa-VO note 24. Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 14. Coester-Waltjen in FS Reinhold Geimer, p. 139, 148; Gottwald in MünchKommFamFG3, Art. 10 EWG VO 2201/2003 note 10; Solomon, FamRZ 2004, 1409, 1417. Conversely, it is possible that the child establishes habitual residence without having settled in. The habitual residence may already be established on the day of arrival. (Kaller-Pröll in Fasching/Konecny, Kommentar V/ 22, Art. 10 EuEheKindVO note 17). different opinion Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note C 61.

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turn is no longer to be ordered if it has settled in the state of residence and the period of one year for the application has expired. In this case the jurisdiction of the Member State of origin comes to an end. The condition for the provision is that the holder of rights of custody must take action. Thus, passive 45 conduct on the part of the holder of rights of custody is sanctioned75 in that he or she loses the right to claim the jurisdiction of the courts in the state of origin with respect to the decision on rights of custody. Instead, the holder of rights of custody must now attempt to implement his or her right under Art. 7(1) Brussels IIter under more difficult conditions before the courts of the Member State to which the child has been removed.76 In order to prevent a change in jurisdiction the holder of rights of custody must make an application 46 for the child’s return with the competent authorities of the Member State to which it has been removed within one year after he or she has had or should have had knowledge of the child’s whereabouts. Knowledge is deemed to exist if the whereabouts are positively known; “should know” exists if the whereabouts are not known through gross negligence; ordinary negligence is immaterial.77 In contrast to the PCC, it is sufficient for the jurisdiction of the Member State to continue if the application is made to the Central Authority of the Member State of origin because the applicant cannot influence how long it will take to be conveyed from the Central Authority to the court and he or she cannot be presumed to be able to ascertain which court will be competent in the foreign Member State to which the child has been removed.

47

bb) Withdrawal of the application and no new application is made in time Jurisdiction passes to the Member State to which the child has been removed pursuant to 48 Art. 9(b)(ii) Brussels IIter if an application to return the child made by the holder of rights of custody is withdrawn and no new application is made within the meaning of Art. 9(b)(i) Brussels IIter (see Art. 9 note 43 et seq. [Garber]) within the period of a year. Passive conduct on the part of the holder of rights of custody is sanctioned in this case, too.78 Whoever makes an application for return on time but then withdraws it and does not renew it within the period of a year, loses the opportunity to claim the jurisdiction of the courts in the Member State of origin under Art. 9(b)(ii) Brussels IIter. It can be implicitly concluded from Art. 9 (b)(ii) Brussels IIter that the withdrawal of an application for return may not be simply seen as subsequent acquiescence in the removal or retention.79

49

cc) Final and binding rejection of an application for return for reasons other that those stated in Art. 13(1)(b) or Art. 13(2) of the HCA Jurisdiction passes to the Member State to which the child has been removed pursuant to Art. 9(b)(iii) Brussels IIter if an application to return the child made by the holder of rights of custody is refused by a court of a Member State for reasons other that those stated in Art. 13(1)(b) or Art. 13(2) of the HCA and that decision is no longer subject to ordinary appeal. This provision supplements Art. 9(b)(iv) Brussels IIter. For example, this concerns refusals pursuant to Arts. 12 and 20 of the HCA.80

50

The term “ordinary appeal” is to be interpreted autonomously according to EU law. According to the 51 case law of the ECJ81 the term “ordinary appeal” is to be understood as any appeal by means of which the decision may be amended or overturned and which must be lodged within a certain time period, 75 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 5; Hausmann, Familienrecht2, F note 144; cf. also SS/MCP (Case C-603/20 PPU), ECLI:EU:C:2021:231. 76 Hausmann, Familienrecht2, F note 145. 77 Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 18. 78 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 5; Hausmann, Familienrecht2, F note 144. 79 Nademleinsky in Gitschthaler, Familienrecht Art. 10 Brüssel IIa-VO note 13. 80 Heiderhoff in MünchKommBGB8, Art. 10 Brüssel IIa-VO note 11. 81 Industrial Diamond Supplies/Luigi Riva (Case C-43/77), ECLI:EU:C:1977:188.

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Art. 9 Brussels IIter Jurisdiction in cases of the wrongful removal or retention of a child which itself begins to run from the time of the decision. In addition, the remedy must be a usual part of the proceedings so that all parties should reasonably expect it to be lodged.82 In contrast, legal remedies that are not part of the courts system but which are suitable for breaking the formal legal effectiveness of a decision do not constitute ordinary appeals but rather extraordinary appeals. Whether the appeal has a suspensive effect or not is just as irrelevant to the qualification of an appeal as ordinary as the question whether the appeal according to autonomous law is limited to an examination of purely legal questions or whether determinations of the facts may also be undertaken. dd) No court in the Member State of origin has been seised pursuant to Arts. 29(3) and (5) Brussels IIter 52

Jurisdiction passes to the Member State to which the child has been removed pursuant to Art. 9(b)(iv) if no court has been seised as referred to in Art. 29(3) and (5) Brussels IIter in the Member State where the child was habitually resident immediately before the wrongful removal or retention. The fact that the courts in the Member State to which the child has been removed have refused the return of the child does not (in contrast to Art. 7(1) of the PCC) by itself result in the jurisdiction of the Member State of origin for the decision on rights of custody coming to an end. If the courts in the Member State to which the child has been removed have refused the child’s return pursuant to Art. 13(1)(b) and Art. 13(2) of the HCA, Art. 29 Brussels IIter applies. The courts of the Member State of origin may conduct custody proceedings that are already pending or those that can become pending within three months. If this deadline of three months expires without proceedings becoming pending, the jurisdiction of the Member State of origin comes to an end.

53

By virtue of the rule of Art. 9(b)(iv) Brussels IIter, the position of the courts of the Member State of origin is strengthened.83 They cannot have their jurisdiction removed as the result of judgments made by courts from the new state of residence; the courts of the Member State of origin have the last word – as long as the party concerned is not passive.

54

It also follows from this provision that when the courts in the Member State to which the child has been removed have not refused the child’s return, (comprehensive) jurisdiction may not pass to the courts of the Member State to which the child has been removed. ee) Decisions on rights of custody handed down by the Member State of origin in which the child’s return was not ordered

55

The jurisdiction of the Member State of origin comes to an end under Art. 9(b)(iv) Brussels IIter once the courts in the Member State of origin have refused the return of the child in a decision on rights of custody. In this case, the courts of the Member State to which the child has been removed will have jurisdiction for future decisions on rights of custody.

56

The condition of the provision is that a decision on rights of custody has been handed down by the courts of the child’s previous state of residence; it is necessary here that the courts in the Member State of origin handed down the decision. In contrast, decisions handed down by courts of the state to which the child has been removed, in which returning the child was rejected, are not sufficient here.84

57

The decision must have been handed down in proceedings over the substance of the matter on the basis of a comprehensive examination of all the circumstances of the case. However, if the return of the child is merely refused by a court of the Member State of origin in an provisional decision, e.g., in an interim order, this does not trigger a change of jurisdiction in favour of the courts of the new state of residence.85 Otherwise there would be the risk that the competent court in the Member State of origin would take over jurisdiction for a final decision by means of the provisional decision in fa82 83 84 85

Industrial Diamond Supplies/Luigi Riva (Case C-43/77), ECLI:EU:C:1977:188. Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 10 EheVO 2003 note 6. Hausmann, Familienrecht2, F note 146. Povse/Alpago (Case C-211/10 PPU), ECLI:EU:C:2010:400; cf. also Dörner in Saenger, ZPO9, Art. 10 EuEheVO note 18; Hausmann, Familienrecht2, F note 147; Schulz in FS Jan Kropholler, p. 435, 442.

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vour of the person who wrongfully removed or retained the child and would not order a provisional judgment for that reason, which would not be in the child’s interests.86 Besides the fact that the decision must have been handed down in proceedings over the substance of the matter on the basis of a comprehensive examination of all the circumstances of the case, the decision may not contestable.87

58

The reasons why the return was not ordered are immaterial.88

59

It follows implicitly from this provision that jurisdiction does not change if the courts of the Member 60 State of origin order the child’s return. This creates a long-term discrepancy between residence and jurisdiction, however. Neither does a transfer of jurisdiction occur if the courts in the Member State of origin do not initially even hand down a decision on rights of custody but wait for the child to be returned.

61

4. Examination as to jurisdiction The court seised is to examine its own jurisdiction under Art. 18 Brussels IIter – regardless of whether a court of the Member State of origin or a court of the Member State to which the child has been removed is concerned.

62

If the courts of the Member State to which the child has been removed are seised, they are to examine their jurisdiction. If proceedings have been initiated in the Member State to which the child has been removed although the conditions for a change in jurisdiction have not been met, pursuant to Art. 18 Brussels IIter the court is to declare that it does not have jurisdiction. If it is thus the courts of the Member State of origin that have jurisdiction, a lack of jurisdiction is to be declared;89 a mere interruption pursuant to Art. 20(2) Brussels IIter does not come into question. However, this does not alter the fact that the court in the Member State of origin that continues to be competent under Art. 9 Brussels IIter must also suspend its proceedings according to Art. 20(2) Brussels IIter if the court in the state to which the child has been removed (which does not have jurisdiction pursuant to Art. 9 Brussels IIter) has been seised first.90

63

In examining whether the general and particular conditions of Art. 9 Brussels IIter for a change to in- 64 ternational jurisdiction have been met, the courts of the Member State of origin are not bound by the decisions of the courts of the Member State to which the child has been removed.91

Article 10 Choice of court 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility where the following conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that: (i) at least one of the holders of parental responsibility is habitually resident in that Member State; (ii) that Member State is the former habitual residence of the child; or (iii) the child is a national of that Member State; 86 87 88 89

Povse/Alpago (Case C-211/10 PPU), ECLI:EU:C:2010:400. Hausmann, Familienrecht2, F note 147. Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 21. Kaller-Pröll in Fasching/Konecny, Kommentar V/22, Art. 10 EuEheKindVO note 9; Nademleinsky in Gitschthaler, Familienrecht, Art. 10 Brüssel IIa-VO note 5; OGH 5 Ob 173/09 s iFamZ 2010/38. 90 OLG Hamm, IPRspr 05 Nr 204. 91 Mercredi/Chaffe (Case C-497/10 PPU), ECLI:EU:C:2010:829; cf. also Schäuble in Althammer, Brüssel IIa-VO, Art. 10 Brüssel IIa-VO note 3.

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Art. 10 Brussels IIter Choice of court (b) the parties, as well as any other holder of parental responsibility have: (i) agreed freely upon the jurisdiction, at the latest at the time the court is seised; or (ii) expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and (c) the exercise of jurisdiction is in the best interests of the child. 2. A choice of court agreement pursuant to point (b) of paragraph 1 shall be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. Persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised. In the absence of their opposition, their agreement shall be regarded as implicit. 3. Unless otherwise agreed by the parties, the jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the decision given in those proceedings is no longer subject to ordinary appeal; or (b) the proceedings have come to an end for another reason. 4. The jurisdiction conferred in point (b)(ii) of paragraph 1 shall be exclusive. I. General remarks . . . . . . . . . . . . . . . . . 1 1. Synopsis . . . . . . . . . . . . . . . . . . . . . . 1 2. Comparison with Art. 12 of Brussels IIbis . 4 a) Amendment of the heading . . . . . . . . . 4 b) Lapse of international interconnected jurisdiction . . . . . . . . . . . . . . . . . . 5 c) Further amendments . . . . . . . . . . . . . 7 3. Comparison with Art. 25 of Brussels Ia and Art. 4 of Regulation (EC) No. 4/2009 . . . . . 8 4. Object and limits of a choice of court agreement . . . . . . . . . . . . . . . . . . . . . 9 5. Relationship of Art. 10 Brussels IIter to the other provisions on jurisdiction . . . . . . . . 11 6. Examination of jurisdiction . . . . . . . . . . 14 II. 1. 2. 3.

Preconditions for the agreement General remarks . . . . . . . . . . Falling within scope . . . . . . . . Substantial connection . . . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

15 15 16 17

4. Agreement or acceptance . . . . . . . . . . . a) General remarks . . . . . . . . . . . . . . b) Persons concerned . . . . . . . . . . . . . c) Agreement . . . . . . . . . . . . . . . . . . d) Express acceptance of jurisdiction . . . . aa) General remarks . . . . . . . . . . . . bb) Form of acceptance . . . . . . . . . . cc) Instructing the parties . . . . . . . . dd) Time of acceptance . . . . . . . . . . ee) Consequences of non-acceptance . . 5. Safeguarding the best interests of the child 6. Formal requirements . . . . . . . . . . . . . IV. Duration of validity . . . . . . . . . . . . . . 1. Duration of validity of the agreement . . . 2. Duration of validity of acceptance . . . . .

. . . . . . . . . . . . . . .

20 20 21 24 26 26 27 30 31 34 36 45 48 48 55

V. Effects . . . . . . . . . . . . . . . . . . . . . . . 56 VI. Validity of the principle of perpetuatio fori . 59

Bibliography: Andrae, Zur Abgrenzung des räumlichen Anwendungsbereichs von EheVO, MSA, KSÜ und autonomem IZPR/IPR, IPRax 2006, 82; Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020), p. 13; Basedow, Das Staatsangehörigkeitsprinzip in der Europäischen Union, IPRax 2011, 109; Bauer, Neues internationales Verfahrensrecht im Licht der Kindesentführungsfälle, IPRax 2002, 179; Bauer, Wechsel des gewöhnlichen Aufenthalts und perpetuatio fori im Sorgerechtsverfahren, IPRax 2002, 135; Boele-Woelki, Brüssel II: Die Verordnung über die Zuständigkeit und die Anerkennung von Entscheidungen in Ehesachen, ZfRV 2001, 121; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Busch, Schutzmaßnahmen für Kinder und der Begriff der „elterlichen Verantwortung“ im internationalen und europäischen Recht – Anmerkungen zur Ausweitung der Brüssel II-Verordnung, IPRax 2003, 218; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Dutta, Europäische Zuständigkeiten mit Kindeswohlvorbehalt, in FS Kropholler (2008), p. 281; Dutta/Schulz, Erste Meilensteine im europäischen Kindschaftsverfahrensrecht: Die Rechtsprechung des Europäischen Gerichtshofs zur Brüssel IIa-Verordnung von C bis Mercredi, ZEuP 2012, 526; Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/ Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Zur Konkurrenz zwischen einem selbstständigen Sorgerechtsverfahren und einem Verbundverfahren nach der EheVO, IPRax 2004, 507; Gruber, Die Neufassung der Eu-

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EheVO, IPRax 2020, 393; Hau, Das System der Entscheidungszuständigkeit im europäischen Eheverfahrensrecht, FamRZ 2000, 1333; Helms, Internationales Verfahrensrecht für Familiensachen in der Europäischen Union, FamRZ 2002, 1593; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (2008); Klauser/Horn, Brüssel IIa-Verordnung in Kraft, ecolex 2004, 910; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011, 85; Neumayr, Europäisches Zivilverfahrensrecht (Brüssel I/IIa ua), in Eilmansberger/Herzig, Jahrbuch Europarecht (2008) 203; Niklas, Die europäische Zuständigkeitsordnung in Ehe- und Kindschaftsverfahren (2003); Pirrung, Haager Kinderschutzübereinkommen und Verordnungsentwurf „Brüssel IIa“, in FS Jayme (2004), p. 701; Pirrung, Internationale Zuständigkeit in Sorgerechtssachen nach der Verordnung (EG) Nr 2201/ 2003, in FS Schlosser (2005), p. 695; Puszkajler, Das internationale Scheidungs- und Sorgerecht nach Inkrafttreten der Brüssel II-Verordnung, IPRax 2001, 81; Schack, Das neue internationale Eheverfahrensrecht in Europa, RabelsZ 65 (2001) 615; Schütz, Zwischenstaatliche Vereinbarungen, die für Familienrichter bedeutsam sein könnten, RZ 2005, 234; Siehr, Das neue Haager Übereinkommen von 1996 über den Schutz von Kindern, RabelsZ 62 (1998) 465; Simotta, Die internationale Zuständigkeit für Ehesachen nach der EheVO, in FS Geimer (2002), p. 1144; Simotta, Die internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung für die gemeinsamen Kinder der Ehegatten (Art. 3 f. EheVO), in FS Jelinek (2002), p. 291; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Spellenberg, Die Annexzuständigkeit nach Art. 3 EheVO, in FS Sonnenberger (2004), p. 679; Teixeira de Sousa, Ausgewählte Probleme aus dem Anwendungsbereich der Verordnung (EG) Nr 2201/2003 und des Haager Übereinkommens vom 19.10.1996 über den Schutz von Kindern, FamRZ 2005, 1612; Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel-Verordnung, IPRax 2001, 73.

I. General remarks 1. Synopsis Brussels IIter takes account of the intention of the parties (even if only to a limited extent) and in Art. 10 Brussels IIter allows the jurisdiction of a Member State to be established by means of a choice-of-court agreement. This grants the parties as well as the holders of parental responsibility a certain amount of flexibility in determining which Member State has jurisdiction.1 The Commission2 included a comparable provision in the draft to Art. 12 of Brussels IIbis that the provision “is intended to promote consensus between the parties, even if only with regard to the court that is to deal with the matter”. Within the scope Brussels IIter, agreeing a prorogation is limited to proceedings on parental responsibility; in matrimonial matters no modification of courts through choice-of-court agreements is provided for.

1

Even with respect to proceedings concerning parental responsibility, the possibilities for agreeing a prorogation are limited: the parties may only choose the Member State, or between the Member States, to which the child shows a particular connection. Furthermore, the exercise of jurisdiction must be in the best interests of the child; in this regard, the agreement is subject to being checked by the court.3 This is to ensure that the decision is made by the courts of a Member State that appear to be particularly suitable in that particular case to make the decision on parental responsibility.4 In contrast to this, the court may not examine within the scope of Art. 25 of Brussels Ia whether the courtof-choice agreement is in the parties’ best interests or whether the parties’ interest in the choice of court agreed is justified.5

2

It is immaterial whether the proceedings are initiated upon request or ex officio.6 Choice-of-court agreements are still to be observed in proceedings that are initiated ex officio.

3

1 COM (2002) 222 final 10. 2 COM (2002) 222 final 10; see also Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 1; Hausmann, Familienrecht2, F note 194. 3 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/28. 4 Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 1. 5 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 6; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/28; Simotta in Fasching/Konecny, Kommentar V/12, Art. 23 EuGVVO note 26; different opinion OGH – 1 Ob 240/02d, ecolex 2003, 912 = EvBl 2004/20 = JBl 2004, 187 (Klicka). 6 Different opinion Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 19, according to which the provision should not apply to proceedings initiated ex officio.

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Art. 10 Brussels IIter Choice of court 2. Comparison with Art. 12 of Brussels IIbis a) Amendment of the heading 4

The heading of Art. 10 Brussels IIter has been amended (“Choice of court” in place of “Prorogation of jurisdiction”). b) Lapse of international interconnected jurisdiction

5

Art. 12 of Brussels IIbis allowed (1) the international jurisdiction to be established of the Member State in which matrimonial proceedings were also pending (“international interconnected or ancillary jurisdiction”, Art. 12(1) and (2) of Brussels IIbis)7 as well as the establishment of the international jurisdiction of that Member State to which the child had a close relationship (Art. 12(3) and (4) of Brussels IIbis). Art. 12(1) and (3) of Brussels IIbis were not related by priority. If the preconditions of Art. 12(1) and (3) of Brussels IIbis were met, the parties were able to either agree on the international jurisdiction of the Member State in which the matrimonial proceedings were pending or on the court of the Member State to which the child had a close relationship.

6

The preconditions for such an agreement are uniformly regulated in paragraph (1) of Art. 10 Brussels IIter.8 No differentiation is made between the individual types of proceedings. Within the scope Brussels IIter, too, the parties may choose the jurisdiction of the Member State in which the matrimonial proceedings are pending if that the preconditions of Art. 10(1) Brussels IIter have been met. The fact that an agreement is still possible in favour of the Member State in which proceedings concerning divorce, legal separation or marriage annulment between the parents are pending even though Art. 12(1) of Brussels IIbis has been struck out also follows from recital 23 on Brussels IIter in which this case is expressly stated.9 c) Further amendments

7

In comparison to Art. 12 of Brussels IIbis, Art. 10 Brussels IIter exhibits the following amendments: – The catalogue of examples in which a of the child to that Member State exists is expanded by a further example (see Art. 10 note 16 [Garber]); – The time when the agreement or acceptance of jurisdiction must be made is redefined (see Art. 10 note 30 [Garber]); – The form in which the agreement has to be concluded is redefined (see Art. 10 note 16 [Garber]); – Art. 12(4) of Brussels IIbis is not included in the recast (see Art. 10 note 42 [Garber]) and – The effects of a prorogation agreement are laid down for the first time (see Art. 10 note 53 [Garber]). 3. Comparison with Art. 25 of Brussels Ia and Art. 4 of Regulation (EC) No. 4/2009

8

Art. 10 Brussels IIter deviates substantially from the concept of Art. 25 of Brussels Ia and Art. 4 of Regulation (EC) No. 4/2009, which allow a choice-of-court agreement within the scope of Brussels Ila and Regulation (EC) No. 4/2009 respectively. A precondition of the jurisdiction accepted by the parties under Art. 10 Brussels IIter is that the exercise of jurisdiction is in the best interests of the

7 The requirement that the application for parental responsibility be joined with an application for divorce, legal separation or marriage annulment did not mean that the matrimonial matter and parental responsibility were or had to be decided in a formal set of proceedings. Whether the proceedings could be joined was determined by national law. Therefore, different courts or authorities of a state could have jurisdiction to decide on the matrimonial matter and to decide on parental responsibility. See Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 25. 8 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 37; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/29. 9 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/30.

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child; in this regard it is subject to being checked by the court.10 Within the scope of Art. 25 of Brussels Ila, the court may neither examine whether the court of choice agreement is in the parties’ best interests or whether the parties’ interest in the choice of court agreed is justified.11 4. Object and limits of a choice of court agreement Art. 10 Brussels IIter refers to all aspects of parental responsibility within the meaning of Art. 2 point 7 Brussels IIter,12 especially rights of custody and rights of access13 (see the definition in Art. 2 points 9 and 10 Brussels IIter). Thus, its scope is not limited to certain aspects of parental responsibility.

9

The Regulation only allows the parties to agree upon the international jurisdiction of a particular Member State.14 The geographical or functional jurisdiction of a particular court of a Member State may not be agreed on the basis of Art. 10 Brussels IIter.15 Geographical and functional jurisdiction and the preconditions for a choice-of-court agreement concerning geographical and functional jurisdiction being permissible are determined solely by national law.16

10

5. Relationship of Art. 10 Brussels IIter to the other provisions on jurisdiction The effects of a choice-of-court agreement should be differentiated from its relationship to the Regulation’s other provisions on jurisdiction.

11

Jurisdiction under Art. 10(1)(b)(ii) Brussels IIter is exclusive. Thus, this jurisdiction supersedes the 12 other provisions on jurisdiction in the Regulation.17 Competition between jurisdictions is to be avoided in order to prevent forum shopping. In the case of double lis pendens, Art. 20(4) and (5) Brussels IIter (similarly to Art. 31(2) of Brussels Ia) provides for a breach of this principle of priority: where a court of a Member State on which an acceptance of jurisdiction as referred to in Art. 10 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance. Thus, the court to which exclusive jurisdiction was transferred by virtue of the acceptance of jurisdiction under Art. 10 Brussels IIter first checks its own jurisdiction, and does so independently of the chronological order in which the courts of the various Member States were seised.18 It follows from the corollary that an agreement pursuant to Art. 10(1)(b)(i) Brussels IIter merely establishes a jurisdiction of choice. In this case the plaintiff or applicant is responsible for choosing between the provisions on jurisdiction that come into question. However, the parties may give the agreement exclusive effect through wording to this effect. It is questionable whether or not the prior10 Garber in König/Mayr, EuZVR V 127; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 2. 11 Simotta, in Fasching/Konecny, Kommentar V/12, Art. 23 EuGVVO note 26; different opinion OGH – 1 Ob 240/02d, ecolex 2003, 912 = EvBl 2004/20 = JBl 2004, 187 (Klicka). 12 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 10; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 16; OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915. 13 OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915. 14 Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 9; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 1; Weber in Mayr, EuZVR note 4.139. 15 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 9; Geimer in Geimer/Schütze, EuZVR4, Art. 12 VO (EG) Nr 2201/2003 note 1; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 5; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 1. 16 Cf. also Geimer in Geimer/Schütze, EuZVR4, Art. 12 VO (EG) Nr 2201/2003 note 29; Traar in Fasching/Konecny Kommentar V/22, Art. 12 EuEheKindVO note 1; Weber in Mayr, EuZVR note 4.139. 17 Cf. to the predecessor regulation Hausmann, Familienrecht2, F note 196; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 3; AG Steinfurt, IPRspr 2008/150; OLG Saarbrücken FamFR 2011, 262 = FamRZ 2011, 1514 = FF 2011, 326; different opinion Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 72, according to which this is a concurrent jurisdiction. 18 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/67.

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Art. 10 Brussels IIter Choice of court ity principle applies in the case of jurisdiction based on a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter. Art. 20 of Brussels Iter is formulated in a contradictory way. On the one hand, the rule of jurisdiction is to be applied if a court has exclusive jurisdiction “by virtue of an acceptance of jurisdiction”, on the other hand, the duty of the other courts to stay proceedings applies until “the court seised on the basis of the agreement or acceptance” has declared itself not to have jurisdiction, whereby, according to the structural classification and definition of Art. 10(1)(b)(i) Brussels IIter, the term “agreement” – as the counterpart to “acceptance” – refers to an agreement on jurisdiction according to Art. 10(1)(b)(i) Brussels IIter.19 It seems sensible to apply the principle of priority also in the case of a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter, provided that it has an exclusive character. This ensures that the pre-litigation choice of court agreement can be enforced in the event of a dispute if a party disregards the exclusive choice of court agreement and first brings an action before a derogated court.20 6. Examination of jurisdiction 14

The seised court is obliged to examine jurisdiction of its own motion under Art. 18 Brussels IIter at every stage in the proceedings. The applicant must invoke Art. 10 Brussels IIter in the document that institutes proceedings. If he or she does not invoke a jurisdiction under Art. 10 Brussels IIter, if the child’s habitual residence is not in that state and if there are no indications in the application for jurisdiction pursuant to any other provision of the Regulation, the court is to decline jurisdiction without giving the other parties the opportunity to make appearance without objecting to jurisdiction.21

II. Preconditions for the agreement 1. General remarks 15

The preconditions for establishing jurisdiction by agreement are that: – It falls within the scope of the Regulation, and the proceedings must concern parental responsibility in particular, – A substantial connection of the child to that Member State exists, – the parties as well as all other holders of parental responsibility (a) agreed freely upon the jurisdiction, at the latest at the time the court is seised or (b) expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction, – the exercise of jurisdiction is in accordance with the best interests of the child and – The formal requirements of Art. 10(2) Brussels IIter have been fulfilled. 2. Falling within scope

16

A precondition for the provision to be applied is that the proceedings must fall within the scope of the Regulation.22 In particular, proceedings concerning parental responsibility within the meaning of Art. 1(1)(b) Brussels IIter must exist.23 3. Substantial connection

17

The child must have a substantial connection to that state. In Art. 10(1) Brussels IIter, examples24 are given of circumstances that may (it is disputed whether they must be “particular”) establish such a 19 20 21 22 23 24

Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 15. Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/33. Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/33. See also Commission, Practice Guide p. 22.

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connection. Such a connection may be given in accordance with Art. 12(3) of Brussels IIbis by virtue of the fact that – At least25 one of the holders of parental responsibility is habitually resident in that state26 or – That the child is a national of that state;27 if the child is a national of several states, all nationalities are relevant;28 an examination of which nationality has priority (is effective) is not carried out;29 should the substantial connection only be based on the child’s nationality, a particular examination is required;30 the reason for this is that the principle of jurisdiction by the country of origin has mostly been relegated;31 – This Member State is the child’s previous habitual residence; in contrast to Brussels IIbis, this circumstance is given in Brussels IIter as an example of a close connection;32 this circumstance was already mentioned in the literature33 on Brussels IIbis as a potential variant for the creation of a close connection, so that the outcome is that the two Regulations do not differ with respect to content. This expansion is a sensible one because it is gives the parties and the courts more scope to carry out the proceedings before the court most familiar with the matter in each particular case.34 Since the list of grounds in Art. 10(1) Brussels IIter is not conclusive, other criteria that create a substantial connection between the child and that state may also exist on a case-by-case basis. These include: (1) The parents’ common nationality, if the child has also made a connection to the state concerned,35 (2) Larger amounts of property that are located in this state,36 (3) The habitual residence in this state of other persons to whom the child is attached, such as the grandparents,37 other relatives or the parent without parental responsibility38 or (4) The circumstance that certain steps are to be taken in this state – such as medical treatment requiring the consent of a court of curatorship,39 25 In the new version, the phrase “at least” is added here; there is no difference to the Brussels IIbis Regulation. 26 Nademleinsky/Neumayr, IFR2, note 8.21 n 105; cf. crit. Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 81, according to which it appeared doubtful to focus only on the holder of parental responsibility in order to prove the child’s bond to a state; therefore, special attention should be paid here to the best interests of the child. 27 OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 80; Nademleinsky/Neumayr, IFR2, note 8.21 n 105. 28 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 80; Geimer in Geimer/Schütze, EuZVR4, Art. 12 VO (EG) Nr 2201/2003 note 27. 29 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 80; Geimer in Geimer/Schütze, EuZVR4, Art. 12 VO (EG) Nr 2201/2003 note 27; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 13 n 511. 30 Fleige, Zuständigkeit p. 255 considers nationality alone to be insufficient to establish such a bond; different opinion OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915. 31 Cf. also Fleige, Zuständigkeit pp. 255 et seq and Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 20. 32 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/35. 33 Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 81; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 20. 34 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX pp. 13, 37 et seq; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/35. 35 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 81; Schäuble in Althammer, Brüssel IIaVO, Art. 12 Brüssel IIa-VO note 20. 36 Gottwald in MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 12. 37 Fleige, Zuständigkeit p. 255; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 81; Schäuble in Althammer, Art. 12 Brüssel IIa-VO note 20. 38 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 81; Gottwald in MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 12; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 20. 39 Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 55.

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Art. 10 Brussels IIter Choice of court (5) The circumstance that the child has frequently resided in this state,40 (6) The intention of all parties to have the child grow up in this state.41 19

The connection is to be examined in every individual case and may be denied even if one of the grounds given in Art. 10(1) Brussels IIter exists42 – such as because the child has lived elsewhere for many years even though it is a national of the state whose courts are to be seised.43 4. Agreement or acceptance a) General remarks

20

Pursuant to Art. 10 Brussels IIter, the parties as well as all other holders of parental responsibility must have: – Agreed freely upon the jurisdiction, at the latest at the time the court is seised or – Expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction. b) Persons concerned

21

According to the wording of Art. 12(1)(b) of Brussels IIbis, jurisdiction had to have been accepted “by the spouses and by the holders of parental responsibility”44. Contrary to the misleading wording of the German version (which reads “or”), this is not a matter of an alternative. Rather, both the spouses and the holders of parental responsibility had to accept the jurisdiction.45 A precondition of Art. 12(3) of Brussels IIbis is that all parties to the proceedings accept the jurisdiction. In contrast to Art. 12(1) of Brussels IIbis, not all the parties of parental responsibility had to consent but only the parties to the proceedings. Under the recast both the parties as well as all other holders of parental responsibility must agree or accept jurisdiction. The term “holders of parental responsibility” should be interpreted broadly and also includes those to whom only parts of parental responsibility have been transferred (e.g., the right to determine residence, care and upbringing, administration of property).46

22

All those who are classified as parties to the proceedings under national law count as parties (cf. recital 23 on Brussels IIter).47 Not only the parents but also all natural and juridical persons may be parties to such proceedings.48 The public prosecutor or state agencies that are involved ipso jure may also be parties in accordance with national law.49 40 Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 21. 41 Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 81. 42 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/36; Schäuble in Althammer, Brüssel IIa-VO Art. 12 Brüssel IIa-VO note 21; see however OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915, according to which “(a) substantial bond of the child to the Federal Republic of Germany already exists because the child has German nationality”, although the child was not proficient in the German language. Leaving the question open Geimer in Geimer/Schütze, EuZVR4, Art. 12 EuEheVO note 15; Gruber in Heidel/ Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 13. 43 Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 21. 44 Emphasis by the author. 45 On the Brüssel IIa-VO Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 18; Gruber in Heidel/ Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 5; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 75; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 29; Weber in Mayr, EuZVR note 4.148; cf. also Commission, Practice Guide p. 21; probably different OGH 5 Ob – 173/09s EF-Z 2010/58 (Nademleinsky) = IPRax 2011/45 (Janzen/Gärtner 412) = iFamZ 2010/38. 46 On the Brüssel IIa-VO Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 40; Weber in Mayr, EuZVR note 4.148. 47 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/39. 48 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB, Art. 12 EheVO 2003 note 15; Hausmann, Familienrecht2, F note 215. 49 Alessandro Saponaro und Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265; cf. also Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 22.

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It is open to question whether under national law the child may be a party within the meaning of Art. 10 Brussels IIter. According to the understanding put forward here, there seems to be a stronger argument according to the rules Brussels IIter for the child not being able to be a party within the meaning of this provision but for his or her interests being conclusively taken into account through the possibility of carrying out a transfer of jurisdiction ex officio as well as through the examination of the best interests of the child.50 Therefore, the child’s consent is not required;51 this even applies if he or she is party to the proceedings under national law. His or her interests are sufficiently safeguarded by taking the best interests of the child into account.

23

c) Agreement Under Art. 10(1)(b)(i) Brussels IIter, the parties as well as all other holders of parental responsibility 24 may conclude an agreement concerning the international jurisdiction of the courts of a particular Member State. The word “freely” is misleading because Art. 10(4) Brussels IIter gives formal requirements, and in addition certain preconditions have to be met in order to agree on the jurisdiction of that court. According to recital 23 on Brussels IIter, the term “freely” means that this agreement or acceptance was based on an informed and free choice of the parties concerned and not a result of one party taking advantage of the predicament or weak position of the other party. Despite its procedural nature, the choice-of-court agreement may be contested on grounds of substantive law and revoking it due to an absence of intent (fraud, error, compulsion) may be requested. The latest possible time by which the agreement must be made is the time when the court is seised. This time is determined by Art. 17 Brussels IIter.

25

d) Express acceptance of jurisdiction aa) General remarks Under Art. 10(1)(b)(ii) Brussels IIter, it is sufficient if the parties as well as all other holders of par- 26 ental responsibility expressly accept the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction. In contrast to Art. 12(3) of Brussels IIbis52, all the holders of parental responsibility must accept the jurisdiction and not only the parties to the proceedings. bb) Form of acceptance Under Brussels IIbis it was sufficient if all the parties to the proceedings had expressly or otherwise in an unequivocal manner clearly accepted the jurisdiction of the court at the time when the court was seised. The option of accepting the court’s jurisdiction in another unequivocal manner no longer exists within the scope Brussels IIter.

27

A precondition for acceptance is that the parties and the holders of parental responsibility are informed of the proceedings taking place before these courts. If one of the parties is absent, the document instituting the proceedings has not be served and he or she is not informed of the proceedings, it cannot be assumed that he or she has accepted this jurisdiction.53 Nor can the intent of the holder of parental responsibility be concluded from the conduct of a representative appointed by the court in the holder of parental responsibility’s absence.54

28

Making an appearance in proceedings without objecting to jurisdiction does not constitute acceptance of jurisdiction. Concerning the scope of Art. 3(2) of Brussels II, the overwhelming opinion was

29

50 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 5; different opinion Heiderhoff, IPRax 2013, 214 et seq. 51 Fleige, Zuständigkeit p. 257. 52 Fleige, Zuständigkeit p. 256; Gottwald in MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 13; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 33. 53 Vasilka Ivanova Gogova/lia Dimitrov Iliev (Case C-215/15), ECLI:EU:C:2015:710. 54 Vasilka Ivanova Gogova/lia Dimitrov Iliev (Case C-215/15), ECLI:EU:C:2015:710.

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Art. 10 Brussels IIter Choice of court that making an appearance in proceedings without objecting to jurisdiction did also constitute acceptance that would establish the jurisdiction of that Member State.55 This conception could not be transferred to Brussels IIbis56, nor does it apply to Brussels IIter. Although the Commission’s suggestion to expressly regulate that “the appearance of a holder of parental responsibility before the court cannot be considered by itself as acceptance of the court’s jurisdiction”57 was not included in the final version of Brussels IIbis, the wording of Art. 12(1) of Brussels IIbis did diverge from that of Art. 3(2) of Brussels II. Acceptance had to be explicit or otherwise in an unequivocal manner which rendered this suggestion superfluous.58 It could be concluded from the wording that higher requirements were to be made of an acceptance regarding jurisdiction that they were to making an appearance without objecting to jurisdiction.59 In the scope of Brussels IIbis, too, making an appearance in proceedings without objecting to jurisdiction does not constitute an explicit acceptance of jurisdiction. cc) Instructing the parties 30

For the parties’ protection it is expressly laid down that the court must ensure that all the parties are informed of their right not to accept the jurisdiction.60 The duty to instruct them exists regardless of whether the party is represented by a lawyer or notary or not.61 dd) Time of acceptance

31

Acceptance does not need to be made when the court is seised. Rather, it is sufficient for it to be made during the course of proceedings.

32

In the scope of Brussels IIbis, according to the wording of Art. 12(1)(b) of Brussels IIbis, the jurisdiction had to be accepted at the time when the court was seised. Based on this unequivocal wording, acceptance had to have been made at the time when the court was seised within the meaning of Art. 16 of Brussels IIbis (corresponding to Art. 17 Brussels IIter).62 In Art. 16 of Brussels IIbis, the Regulation defined the time when the court is seised autonomously in EU law. This definition also had to apply to Art. 12 of Brussels IIbis,63 particularly as in other provisions (such as Art. 9(2) of Brussels IIbis) different wording was chosen.64 The Practice Guide65 could also be adduced in support of this conception, according to which “the judge [should] determine whether, at the time the court is seised, all holders of parental responsibility accept the jurisdiction of the divorce court formally or by unequivocal conduct”.66 Furthermore, this early point in time corresponded to the concept of the Regulation; the parties were to agree in advance67 and the jurisdiction with regards to the best interests of the child was to be clarified at soon as possible.68 In this way no difficulties came about in differentiating be55 Niklas, Zuständigkeitsordnung p. 140; Neumayr, in IZVR Kap 41 Art. 3 EheGVVO (previous version) note 3; Schlosser, EU-ZPR2, Art. 3 EuEheVO (previous version) note 3; Sumampouw, in Liber Amicorum Kurt Siehr p. 729, 734; Vogel, MDR 2000, 1045, 1048; different opinion BGH, FamRZ 2005, 1540 = NJW 2005, 3424. 56 Frank in Gebauer/Wiedmann, Zivilrecht3, Art. 12 EuEheVO note 2; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 46; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 23; Weber in Mayr, EuZVR note 4.144; different opinion Rieck in Schulz/Hauß, Familienrecht3, Art. 12 EheVO 2003 note 1 n 2; see also Fleige, Zuständigkeit p. 246. 57 COM (2002) 222 final. 58 Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 21. 59 Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 21; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 12. 60 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/45. 61 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/45. 62 L/M (Case C-656/13), ECLI:EU:C:2014:2364; cf. also Tödter, Kindschaftsrecht p. 52. 63 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 52; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 28. 64 Cf. also Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 52; Rieck in Schulz/Hauß, Familienrecht3, Art. 12 EheVO 2003 note 4. 65 Commission, Practice Guide p. 21. 66 Emphasis by the author. 67 Cf. also Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 75. 68 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 52; Tödter, Kindschaftsrecht p. 52.

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tween an appearance in proceedings without objecting to jurisdiction that was not permissible and an implied agreement on jurisdiction that was permissible.69 In C-656/1370 the ECJ also ruled that “the clear wording of [Art. 12(3) of Brussels IIbis]… read in light of Art. 16 [Brussels IIter], thus requires the existence to be shown of an agreement, express or at least unequivocal, on the prorogation of jurisdiction between all the parties to the proceedings, at the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen”. Parts of the scholarship71 and case-law72 rejected this understanding; on this view the jurisdiction could also be accepted later in the proceedings (after the court had been seised). The wording of Art. 12(1)(b) of Brussels IIbis was given to justify this, according to which acceptance could be made “otherwise in an unequivocal manner”. This phrase would only have made sense if the parties had been able to agree on jurisdiction after the court had been seised.73 In my view, this understanding is not convincing due to the express wording of the provision. The objection that the phrase “otherwise in an unequivocal manner” would otherwise not have a scope of its own is also not convincing because acceptance could also be made at the time the courts were seised not only expressly but also otherwise in an unequivocal manner74 – such as by means of a joint application75. Brussels IIter now allows for acceptance during the course of the proceedings. This possibility is contained in the Regulation directly; in contrast to the draft, no recourse to national law is required.76 The Regulation does not contain any restrictions to a certain instance, which means that jurisdiction may also be accepted in a higher instance. For reasons of procedural economy, it makes sense for the court to press for the declaration to be made as soon as possible otherwise the risk might arise that jurisdiction is not established due it not having been accepted, and proceedings in advanced stages would have to be abandoned without a decision on the matter having been made.

33

ee) Consequences of non-acceptance Where someone who must consent to jurisdiction does not accept the jurisdiction, the Regulation 34 provides no way to replace consent to jurisdiction under Art. 10 Brussels IIter that has not been given.77 This even applies when the court considers the jurisdiction to be in the best interests of the child.78 A precondition for acceptance is that the respondent is informed of the proceedings taking place before these courts.79 If a respondent is absent, to whom the document instituting the proceedings has not be served and he or she is not informed of the proceedings, it cannot be assumed that he or she has accepted this jurisdiction.80 Where there is no jurisdiction, neither may a transfer of jurisdiction pursuant to Art. 12 Brussels IIter 35 be carried out.

69 Cf. also Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 52; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 28. 70 L/M (Case C-656/13), ECLI:EU:C:2014:2364. 71 Fleige, Zuständigkeit p. 245; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 10; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 24; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 27; Weber in Mayr, EuZVR note 4.144. 72 OLG Düsseldorf, BeckRS 2009, 89470. 73 Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 28; in this direction also Hausmann, Familienrecht2, F note 204. 74 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 53. 75 Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 9. 76 COM (2016) 411 final 42: “[…] The courts of a Member State shall also have jurisdiction in relation to parental responsibility […] where the following conditions are met: […] the jurisdiction […] has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the latest at the time the court is seised or, where the law of that Member State so provides, during those proceedings […].” 77 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/48. 78 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/48. 79 Vasilka Ivanova Gogova/lia Dimitrov Iliev (Case C-215/15), ECLI:EU:C:2015:710. 80 Vasilka Ivanova Gogova/lia Dimitrov Iliev (Case C-215/15), ECLI:EU:C:2015:710.

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Art. 10 Brussels IIter Choice of court 5. Safeguarding the best interests of the child 36

The exercise of jurisdiction must be in accord with the best interests of the child. This precondition is to be examined by the courts, which means that in this regard an agreement made between the parties is subject to the supervision of the courts. If the application concerns more than one child, the compatibility of the jurisdiction with the best interests of the child is to be examined for each child independently.81

37

This restriction seems to make sense because the parties’ agreement or acceptance of jurisdiction is not necessarily orientated towards the child’s best interests.82 Checks by the courts prevent a court from being chosen that has little relation to the child so that an undue strain is placed upon it.

38

The courts of the Member State agreed upon must be at least as suitable as the competent court to decide the matter.83

39

The term “the best interests of the child” is be interpreted autonomously in EU law, following Art. 10 of the PCC.84 Considerations that are solely concerned with the law of jurisdictions are determinative.85 The court, therefore, only has to pose the question whether it is compatible with the best interests of the child when the courts of a state which is not the child’s habitual residence decide the matter;86 aspects of the law of jurisdictions are determinative here.87 Matters to be taken into consideration include the distance of the court from the child’s habitual residence and the question whether the child can easily travel to it88 in order to be heard as part of the proceedings. The language of the court is also relevant in this context.89 If the child does not speak the language of the court and if an interpreter must be used, as a rule this is not in the best interests of the child (particularly because this lengthens the duration of proceedings).90 If, however, the child speaks the language of the court agreed under Art. 10 Brussels IIter, this can shorten proceedings and reduce the burden.

40

Furthermore, factors that ensure that the proceedings can be carried out quickly are crucial, such as: – Ascertaining the social circumstances sufficiently quickly,91

81 Borrás-Report note 26; Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 10; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 61; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/49. 82 On the Brussels IIbis Coester-Waltjen, FamRZ 2005, 241, 243; Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 62; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 14; crit. Rieck in Schulz/Hauß, Familienrecht3, Art. 12 EheVO 2003 note 6 n 19; tends to argue differently Dilger in Geimer/ Schütze, IRV Art. 12 VO Nr 2201/2003 note 24; Niklas, Zuständigkeitsordnung p. 141; cf. also OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915. 83 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 9; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 35; Weber in Mayr, EuZVR note 4.142. 84 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 64; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 25; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 35. 85 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 9; Rieck in Schulz/ Hauß, Familienrecht3, Art. 12 EheVO 2003 note 6; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 35. 86 Rieck in Schulz/Hauß, Familienrecht3, Art. 12 EheVO 2003 note 6. 87 Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 24; Hausmann, Familienrecht2, F note 205; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 13. 88 Hausmann, Familienrecht2, F note 206; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 13; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 26. 89 Gottwald in MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 6; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 13; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 26. 90 Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 13; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 9; Hausmann, Familienrecht2, F note 206; Kammergericht FD-FamR, 2006, 196439 (Born) = FamRZ 2006, 1318 = FGPrax 2006, 261 = NJW 2006, 503; anders OLG Düsseldorf, BeckRS 2009, 89470 = FamRZ 2010, 915. 91 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 66; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/53; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 13; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 26.

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– The subject-matter of the proceedings exhibits a particular proximity to the courts of the Member State agreed upon,92 such as because the proceedings only concern property located in that state or because the applicant is habitually resident in that state and the applicant’s personal suitability in particular must be examined as part of the proceedings.93 In C-565/1694 the ECJ ruled that in the case of a judicial authorisation to renounce an inheritance, the circumstances that: – The deceased had his or her last residence in the Member State the court of which has been seised, – the estate is situated there, – the liabilities under the succession exist there, and – in the absence of matters that might demonstrate that the prorogation of jurisdiction was liable to have a prejudicial impact on the child’s position, leads to the conclusion that the prorogation of jurisdiction is in the best interests of the child.

41

No examination according to substantive law is to be undertaken.95 Therefore, whether the law to be 42 applied by the court seised pursuant to Art. 10 Brussels IIter serves the best interests of the child or not does not determine the matter.96 Otherwise a comprehensive examination of all the aspects of the child’s interests affected by jurisdiction would have to be conducted. This examination of jurisdiction would be completely overloaded with details and the uniform application Brussels IIter across the EU would also be jeopardised. Thus, it is not ensuring that a decision is made in the best interests of the child that is determinative but ensuring that the proceedings are orientated towards the best interests of the child.97 In my view, checking whether the courts of another Member State possess particular expertise or competence in making the decision or whether they are able or willing to hand down such a decision should not determine the matter.98 This would contradict the principles of mutual trust and the equal value of justice systems.

43

Art. 12(4) of Brussels IIbis regulated in the form of a rebuttable presumption99 that where “the child 44 has his or her habitual residence in the territory of a third state which is not a contracting party to the [PCC]… it 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”, which was to be assumed if war or civil war was raging in that state or revolutionary conflict100 or if the administration of justice had effectively come to a standstill. This provision was not included in the recast. The reason for this is probably to avoid friction with third countries. In order to safeguard the best interests of the child, it is the status of the child in the state whose jurisdiction is being claimed that should be examined and not the child’s status or the situation which the child is exposed to in another state. To take account of the child’s interests it would have been sensible to have created a forum necessitatis.

92 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 66; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/53; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 37. 93 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 66; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 37. 94 Alessandro Saponaro und Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265. 95 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 67; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/55; Geimer in Geimer/Schütze, EuZVR4, Art. 12 EuEheVO note 25. Cf. also Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 96 On the Brussels IIbis Regulation see Rieck in Schulz/Hauß, Familienrecht3, Art. 12 EheVO 2003 note 4; cf. also Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 13. 97 Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 13. 98 Different opinion Dörner in Saenger, ZPO9, Art. 12 EuEheVO note 13. 99 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 90; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/56; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 12 Brüssel IIa-VO note 27. 100 Garber in Gitschthaler, Familienrecht, Art. 12 Brüssel IIa-VO note 90; cf. also Hausmann, Familienrecht2, F note 207; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 24.

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Art. 10 Brussels IIter Choice of court 6. Formal requirements 45

Within the scope of Brussels IIbis, a prorogation agreement could be made informally, the consequence of which was, however, that an agreement made before the proceedings had been initiated, was unanimously considered not binding but freely revocable.101

46

Art. 10(2) Brussels IIter contains formal requirements. Choice-of-court agreements are to be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law102 and procedure. Electronic communications which provide a durable record of the agreement are equivalent to writing.

47

Persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised. In the absence of their opposition, their agreement is regarded as implicit. This mostly corresponds to the case-law of the ECJ103 with respect to the organs who represent the interests of the child and who must also consent. It is sufficient that there is no explicit opposition. According to the ECJ, in this case this party’s agreement may be implicitly assumed if no objection is raised, and the precondition that the jurisdiction must have been accepted by all the parties to the proceedings in an unequivocal manner at the time when the court was seised may be considered fulfilled.

IV. Duration of validity 1. Duration of validity of the agreement 48

It should follow from the newly introduced requirement for the agreement to be made in writing (see Art. 10 note 44 [Garber]) of Art. 10(2) Brussels IIter that an agreement that observes this formal requirement can no longer be freely revoked.104

49

Art. 10(3) Brussels IIter stipulates that, unless otherwise agreed by the parties, under certain circumstances an agreed or accepted jurisdiction ceases. According to recital 24 on Brussels IIter, this is in order to respect the requirement of proximity for any new proceedings in the future.105

50

Under Art. 10(3)(a) Brussels IIter, unless otherwise agreed by the parties, the jurisdiction ceases if the decision given in those proceedings is no longer subject to ordinary appeal106. The term “ordinary appeal” is to be understood autonomously in EU law and includes any appeal by means of which the decision may be amended or overturned and which must be lodged within a certain time period, which itself begins to run from the time of the decision.107 In contrast, legal remedies that are not part of the courts system but which are suitable for breaking the formal legal effectiveness of a decision do not constitute ordinary appeals but rather extraordinary appeals.108

51

Whether the appeal has suspensive effect or not is just as irrelevant to the classification of an appeal as ordinary as the question whether the appeal according to autonomous law is limited to an examination of purely legal questions or whether determinations of the facts may also be undertaken.109 101 See also Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 14, 39; Gottwald in: MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 13; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO note 27. 102 Cf. also recital 23, last sentence, of the Brussels IIter Regulation: “The acceptance of jurisdiction in the course of the proceedings should be recorded by the court in accordance with national law and procedure.” 103 Alessandro Saponaro und Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265. 104 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 39; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/58. 105 Cf. also E/B (Case C-436/13) ECLI:EU:C:2014:2246. 106 Cf. also E/B (Case C-436/13) ECLI:EU:C:2014:2246. 107 Cf on the Brussels Ia Regulation Garber in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art. 51 EuGVVO note 13 wfr. 108 Cf on the Brussels Ia Regulations Garber in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art. 51 EuGVVO note 14 wfr. 109 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/63; cf on the Brussels Ia Regulations Garber in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art. 51 EuGVVO note 15 wfr.

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In contrast to Brussels Ia, the Regulation contains no special provisions for Ireland and Cyprus, which do not distinguish between ordinary and extraordinary appeals.110

52

It is also immaterial whether the proceedings are ended with a decision that grants or dismisses the motion.111

53

Art. 10(3)(b) Brussels IIter puts the ending of proceedings by the motion being granted or dismissed on the same level as their being ended in another manner, such as by withdrawal of the application concerning parental responsibility.112

54

2. Duration of validity of acceptance In the accurate view of the ECJ113, acceptance ceases when the final and binding decision has been handed down in the proceedings in question and thus it does not have effect beyond the final and binding conclusion of those proceedings. Whether the parties to the proceedings accepted the jurisdiction and whether the jurisdiction was in the best interests of the child must be examined again in new proceedings.114

55

V. Effects Art. 10(4) Brussels IIter differentiates with respect to the effects of a prorogation agreement (as outlined in Art. 10 note 10 [Garber]).

56

Jurisdiction in accordance with Art. 10(1)(b)(ii) Brussels IIter is exclusive. This jurisdiction super- 57 sedes the other provisions on jurisdiction in the Regulation115. Competition between jurisdictions is to be avoided in order to prevent forum shopping. In the case of double lis pendens, Art. 20(4) and (5) Brussels IIter (similarly to Art. 31(2) of Brussels Ila) provide for a breach of this principle of priority: Where a court of a Member State on which an acceptance of jurisdiction as referred to in Art. 10 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance. Thus, the court to which exclusive jurisdiction was transferred by virtue of the acceptance of jurisdiction pursuant to Art. 10 Brussels IIter first checks its own jurisdiction, and does so independently of the chronological order in which the courts of the various Member States were seised.116 It follows from the corollary that an agreement under Art. 10(1)(b)(i) Brussels IIter merely establishes a choice of jurisdiction. In this case, the plaintiff or applicant is responsible for choosing between the provisions on jurisdiction that come into question. However, the parties may give the agreement exclusive effect through wording to this effect. It is questionable whether or not the priority principle applies in the case of jurisdiction based on a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter. Art. 20 of Brussels Iter is formulated in a contradictory way. On the one hand, the rule of jurisdiction is to be applied if a court has exclusive jurisdiction “by virtue of an acceptance of jurisdiction”, on the other hand, the duty of the other courts to stay proceedings applies until “the court seised on the basis of the agreement or acceptance” has declared itself not to have jurisdiction, whereby, according to the structural classification and definition of Art. 10(1)(b)(i) Brussels IIter, the 110 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/64. 111 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/65; Hausmann, Familienrecht2, F note 209; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 16. 112 Commission, Practice Guide p. 22; Gottwald in MünchKommFamFG3, Art. 12 EWG VO 2201/2003 note 8. 113 E/B (Case C-436/13), ECLI:EU:C:2014:2246; cf. also L/M (Case C-656/13), ECLI:EU:C:2014:2364. 114 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 12 EheVO 2003 note 15. 115 Garber/Lugani, Zak 2022, 204. Cf. on the predecessor regulation Hausmann, Familienrecht2, F note 196; Heiderhoff in MünchKommBGB8, Art. 12 Brüssel IIa-VO note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note 3; AG Steinfurt, IPRspr 2008/150; OLG Saarbrücken, FamFR 2011, 262 = FamRZ 2011, 1514 = FF 2011, 326; different opinion Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 12 Brüssel IIa-VO note C 72, according to which this is a concurrent jurisdiction. 116 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/67.

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58

Art. 11 Brussels IIter Jurisdiction based on presence of the child term “agreement” – as the counterpart to “acceptance” – refers to an agreement on jurisdiction according to Art. 10(1)(b)(i) Brussels IIter.117 It seems sensible to apply the principle of priority also in the case of a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter, provided that it has an exclusive character. This ensures that the pre-litigation choice of court agreement can be enforced in the event of a dispute if a party disregards the exclusive choice of court agreement and first brings an action before a derogated court.118

VI. Validity of the principle of perpetuatio fori 59

It is open to question what consequences the lapse of any other of the preconditions for jurisdiction pursuant to Art. 10 Brussels IIter during proceedings has. The Regulation does not contain any explicit rule. According to one part of the scholarship on Art. 12 of Brussels IIa, the principle of perpetuatio fori should not apply to prorogation agreements in principle.119 Hence, the court may come to the conclusion that its jurisdiction (based on Art. 12 of Brussels IIa) is not in the best interests of the child while the proceedings are still continuing. Another (in my opinion, accurate) view has it that the principle of perpetuatio fori should also apply within the scope of Art. 12 of Brussels IIa.120 In my view, this also applies to the scope of Art. 10 Brussels IIter. Recital 21 sentence 2 on Brussels IIter can be cited in support of this interpretation: According to this, for proceedings already pending, legal certainty and the efficiency of justice would justify maintaining this jurisdiction until those proceedings have resulted in a final decision or the proceedings have otherwise come to an end. Even though recital 21 sentence 1 on Brussels IIter only refers to changes to habitual residence, recital 21 on Brussels IIter does not restrict the application of the principle of perpetuatio fori to Art. 7 Brussels IIter, which means that Art. 10 Brussels IIter and all other provisions on jurisdiction are also included. The justification given in it for the retention of jurisdiction (legal certainty and efficiency) applies to all provisions on jurisdiction. Only this interpretation is also able to ensure that a transfer of jurisdiction may be carried out pursuant to Art. 12 Brussels IIter.

Article 11 Jurisdiction based on presence of the child 1. Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of Article 10, the courts of the Member State where the child is present shall have jurisdiction. 2. The jurisdiction under paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their Member State of habitual residence. I. Synopsis . . . . . . . . . . . . . . . . . . . . . . II. Comparison with Brussels IIbis . . . . . . . . III. Jurisdiction based on the presence of the child 11(1) Brussels IIter . . . . . . . . . . . 1. Synopsis and rationale . . . . . . . . . . . . 2. Normative contents . . . . . . . . . . . . . . 3. Preconditions for application . . . . . . . . a. General remarks . . . . . . . . . . . . . . b) No jurisdiction of a Member State under Arts. 7 to 10 12 or 13 Brussels IIter . . . .

. . . . .

1 3 5 5 8 9 9

. 11

aa) General remarks . . . . . . . . . . . . . bb) Relationship to Art. 7 Brussels IIter . . cc) Relationship to Arts. 8 and 9 Brussels IIter . . . . . . . . . . . . . . . . . dd) Relationship to Art. 10 Brussels IIter . ee) Examination of jurisdiction . . . . . . c) The presence of the child . . . . . . . . . . d) Habitual residence cannot be ascertained . IV. Refugees and displaced persons – Art. 11(2) Brussels IIter . . . . . . . . . . . . . . . . . . .

11 13 14 15 20 22 25 28

117 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. 118 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. 119 Bauer, IPRax 2002, 135, 139; Traar in Fasching/Konecny, Kommentar V/22, Art. 12 EuEheKindVO notes 18 and 20. 120 Dilger in Geimer/Schütze, IRV Art. 12 VO Nr 2201/2003 note 27; Schack, RabelsZ 65 (2001) 615, 624.

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Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020) 13; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Garber, Flüchtlinge und die Brüssel IIa-VO, in Liber Amicorum Edwin Gitschthaler (2020) 77; Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (2008); Kaller, Europaweite Durchsetzung von Obsorge- und Besuchsrecht, FamZ 2006, 37; Loewe, Die Empfehlungen des Europarates zur Vereinheitlichung der Rechtsbegriffe „Wohnsitz“ und „Aufenthalt“, ÖJZ 1974, 144; Lowe, Gewöhnlicher Aufenthalt, internationale Kindesentführung und Brüssel II-Verordnung, FamZ 2006, 181; Lukits, Die Obsorge für unbegleitete minderjährige Asylwerber (Teil 1): Internationale Zuständigkeit, EF-Z 2016, 298; Siehr, Das neue Haager Übereinkommen von 1996 über den Schutz von Kindern, RabelsZ 62 (1998) 465; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409.

I. Synopsis Art. 11(1) Brussels IIter contains a provision which is a subsidiary catch-all jurisdiction1 with respect 1 to the Regulation’s other provisions on jurisdiction (Arts. 7 to 10, 12 and 13 Brussels IIter), which for considerations of protection also applies to refugee children or children who are internationally displaced because of disturbances occurring in their Member State of habitual residence under 11(2) Brussels IIter. However, the provision has priority over national provisions of jurisdiction, which are to be applied if the preconditions laid down in Art. 14 Brussels IIter are met.2 Art. 11 Brussels IIter corresponds in content to Art. 6 of the PCC.3 In contrast to the PCC, subsidiary jurisdiction does not already apply if the child’s habitual residence is not ascertainable but only if in addition no other Member State of the Regulation has jurisdiction under Arts. 7 to 10, 12 or 13 Brussels IIter (see Art. 11 note 10 [Garber]).

2

II. Comparison with Brussels IIbis Art. 11 Brussels IIter corresponds to Art. 13 of Brussels IIbis. In comparison to Art. 13 of Brussels IIbis, Art. 11 Brussels IIter exhibits few changes in language. The heading of the provision reads “Jurisdiction based on presence of the child” instead of “Jurisdiction based on the child’s presence”; the introduction to Art. 11(1) Brussels IIter “Where the habitual residence of a child” is replaced by the introduction “Where a child’s habitual residence”. Furthermore, the reference to Art. 12 of Brussels IIbis (now Art. 10 Brussels IIter) was adjusted. No chances to content are associated with this.

3

Art. 11(2) Brussels IIter is recast. “Disturbances occurring in their Member State of habitual resi- 4 dence” is added. No alteration to content is associated with this; see Art. 11 note 32 [Garber].

1 Coester-Waltjen, Jura 2004, 839, 841; Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 1; Dörner in Saenger, ZPO9, Art. 13 EuEheVO note 1; Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 1; Hausmann, Familienrecht2, note F 221; Rieck in Schulz/Hauß, Familienrecht3, Art. 13 EheVO 2003 note 1; Solomon, FamRZ 2004, 1409, 1413; Weber in Mayr, EuZVR note 4.158; A (C-523/07) ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung, 50). 2 Hausmann, Familienrecht2, note F 222. 3 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 1; Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 2; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 1.

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III. Jurisdiction based on the presence of the child 11(1) Brussels IIter 1. Synopsis and rationale 5

Under Art. 11(1) Brussels IIter, the simple presence of the child in a Member State is sufficient to establish its international jurisdiction. This is to avoid4 gaps in legal protection. If no Member State has international jurisdiction pursuant to Arts. 7 to 105, Arts. 12 and 13 Brussels IIter, the courts of the Member State in which the child is present are to have jurisdiction for decisions concerning parental responsibility. In the case national legislation is not to be responsible for the decision whether a state has international jurisdiction or not via Art. 14 Brussels IIter, which refers to national law.

6

The child’s mere physical presence in the state of the court establishes jurisdiction.6 Further criteria besides mere physical presence, such as residence for a certain period of time7 are not required for presence within the meaning of Art. 11 Brussels IIter. This ensures that the requirements for international jurisdiction are kept low – for the child’s protection.

7

To protect the child mere temporary presence is also sufficient.8 For example, jurisdiction pursuant to Art. 11 Brussels IIter may exist within the context of an onward journey or when changing planes.9 The child must, however, still be present in that state at the time the courts are seised (Art. 17 Brussels IIter), which means that being present for a very short time is usually not sufficient.10 See Art. 11 note 22 and 23 [Garber] for the question whether the child must be present in the state of the court during the entire proceedings. 2. Normative contents

8

Art. 11(1) Brussels IIter only regulates international jurisdiction (“the courts of the Member State […] shall […] retain jurisdiction”);11 substantive and geographical jurisdiction as well as functional jurisdiction is determined under national law.12 3. Preconditions for application a. General remarks

9

10

The preconditions for the provision are that: (1) no other Member State of the Regulation has international jurisdiction under Arts. 7 to 10,13 Arts. 12 or 13 Brussels IIter (see Art. 11 note 10 [Garber]), (2) the child is present (see Art. 11 note 20 [Garber]) in that Member State at the time when the court of a Member State (see Art. 11 note 21 [Garber]) is seised and (3) the child’s habitual residence is not ascertainable (see Art. 11 note 24 [Garber]). These preconditions are cumulative and it is compulsory that they are all met.14 4 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 3; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 69. 5 On the correlation with Art. 10 Brussels IIter, see Art. 11 note 14 (Garber). 6 Dörner in Saenger, ZPO9, Art. 13 EuEheVO note 2; Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIaVO note 4; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 2; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 19. 7 See also Council of Europe Recommendation point 8 from 18.1.1972; on this Loewe, ÖJZ 1974, 144. 8 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 5; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 20; different opinion Holzmann, Brüssel IIa-VO note 141; Weber in Mayr, EuZVR note 4.160. 9 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 20; different opinion Holzmann, Brüssel IIa-VO note 141; Weber in Mayr, EuZVR note 4.160. 10 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 5. 11 Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 3. 12 Hausmann, Familienrecht2, note F 221; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 3. 13 On the correlation with Art. 10 Brussels IIter see Art. 11 note 14 (Garber).

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b) No jurisdiction of a Member State under Arts. 7 to 10 12 or 13 Brussels IIter aa) General remarks As the Commission’s explanatory memorandum15 explicitly states, Art. 11 Brussels IIter is a subsidiary regulation which is only to be applied when no jurisdiction of a Member State is given under Arts. 7 to 10,16 Arts. 12 or 13 Brussels IIter.17

11

However, the provision has priority over national provisions of jurisdiction, which are to be applied if the preconditions laid down in Art. 14 Brussels IIter are met.18

12

bb) Relationship to Art. 7 Brussels IIter Art. 7 Brussels IIter supersedes the provision in Art. 11 Brussels IIter. This can be concluded from 13 Art. 7(2) Brussels IIter; the priority of Art. 7(1) Brussels IIter with respect to Art. 11 Brussels IIter arises from the provision. The priority also matches the nature of the Art. 11 Brussels IIter as a substitute forum that should only apply subsidiarily.19 If the child is habitually resident in a Member State, under Art. 7(1) Brussels IIter the courts of that state are competent (at least in principle).20 cc) Relationship to Arts. 8 and 9 Brussels IIter Even though Art. 11 Brussels IIter does not explicitly refer to Arts. 8 and 9 Brussels IIter, Arts. 8 and 14 9 Brussels IIter in their respective scopes supersede Art. 11 Brussels IIter.21 Where a court of a Member State has jurisdiction under Arts. 8 and 9 Brussels IIter, the courts of another Member State may not base their jurisdiction on Art. 11 Brussels IIter. After the preconditions for 8 and 9 Brussels IIter have lapsed, in the case of moving or abduction the new residence will have typically consolidated into a new habitual residence, which means that the courts of the Member State will have jurisdiction under Art. 7(1) Brussels IIter;22 otherwise, provided that international jurisdiction does not arise from a provision on jurisdiction that is to be applied in priority, Art. 11 Brussels IIter is to be applied. dd) Relationship to Art. 10 Brussels IIter According to the wording, a precondition for the application of Art. 11 Brussels IIter is that “jurisdiction cannot be determined on the basis of Art. 10 Brussels IIter.” With respect to distinguishing Art. 10 from Art. 11 Brussels IIter, the following three cases should be differentiated: (1) The court named in Art. 10 Brussels IIter is seised before the court named in Art. 11 Brussels IIter (see note 15), (2) The court named in Art. 11 Brussels IIter is seised although an agreement has been made pursuant to Art. 10 Brussels IIter (see note 16). (3) The court named in Art. 11 Brussels IIter is seised before the court named in Art. 10 Brussels IIter (see note 17). 14 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 7. 15 COM (2002) 222 final 10. 16 On the correlation with Art. 10 Brussels IIter see Art. 11 note 14 (Garber). 17 Geimer, in Geimer/Schütze, EuZVR4, Art. 13 VO (EG) Nr. 2201/2003 note 1; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 2; Hausmann, Familienrecht2, note F 222; Heiderhoff in MünchKommBGB8, Art. 13 Brüssel IIa-VO note 1; see however Rieck in Schulz/Hauß, Familienrecht3, Art. 13 EheVO 2003 note 1. 18 Hausmann, Familienrecht2, note F 222. 19 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 3. 20 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 10. 21 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 1; Weber in Mayr, EuZVR note 4.158. 22 Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 3.

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15

Art. 11 Brussels IIter Jurisdiction based on presence of the child 16

Case (1) does not cause any difficulties. If proceedings are already pending at the court competent under Art. 10 Brussels IIter, the court seised under Art. 11 Brussels IIter is to apply Art. 20(2) Brussels IIter23. The court seised on the basis of Art. 11 Brussels IIter is to suspend proceedings pursuant to Art. 20(2) Brussels IIter and to await the results of the examination of jurisdiction.24 See the commentary on Art. 20 Brussels IIter.

17

In case (2), it is open to question whether Art. 11 Brussels IIter does not apply if the parties have only made an agreement pursuant to Art. 10 of IIb but the court agreed on has not yet been seised. It was correctly held25 that a mere agreement was not sufficient in the scope of the previous Regulation; the parties were able to revoke the agreement pursuant to Art. 10 of Brussels IIbis at any time, meaning that this would have threatened to result in conflicts of competence if an agreement by itself had been sufficient to rule out the application of Art. 11 of Brussels IIbis. Since the execution of jurisdiction had to be in the best interests of the child (this also applies to Brussels IIter), the court seised under Art. 13 of Brussels IIbis (corresponding to Art. 11 Brussels IIter) was also to examine whether this precondition had been met; the result was not binding on the court seised later. This created the risk of a conflict of competence if the court seised under Art. 13 Brussels IIter affirmed that it was compatible with the child’s best interests, while the court seised under Art. 12 Brussels IIter found that it was not. According to the recast, revoking an agreement is no longer permissible (see Art. 10 Brussels IIter note 43), which means that in this regard the risk of conflicts of competence has been eliminated. It is still possible, however, for the question whether jurisdiction is in the child’s best interests to be assessed in different ways so that the risk of conflicts or competence also exist in the scope Brussels IIter. Nevertheless is in the scope Brussels IIter an agreement sufficient for declining jurisdiction. The wording of Art. 11 Brussels IIter supports this view. In addition, the provisions on lis pendens would otherwise be thwarted. Although it is questionable whether or not the priority principle applies in the case of jurisdiction based on a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter. Art. 20 of Brussels Iter is formulated in a contradictory way. On the one hand, the rule of jurisdiction is to be applied if a court has exclusive jurisdiction “by virtue of an acceptance of jurisdiction”, on the other hand, the duty of the other courts to stay proceedings applies until “the court seised on the basis of the agreement or acceptance” has declared itself not to have jurisdiction, whereby, according to the structural classification and definition of Art. 10(1)(b)(i) Brussels IIter, the term “agreement” – as the counterpart to “acceptance” – refers to an agreement on jurisdiction according to Art. 10(1)(b)(i) Brussels IIter.26 It seems sensible to apply the principle of priority also in the case of a choice of court agreement according to Art. 10(1)(b)(i) Brussels IIter, provided that it has an exclusive character. This ensures that the pre-litigation choice of court agreement can be enforced in the event of a dispute if a party disregards the exclusive choice of court agreement and first brings an action before a derogated court.27

18

In case (3), in which the court seised under Art. 11 Brussels IIter is seised before the court seised under Art. 10 Brussels IIter, Art. 20(4) and (5) Brussels IIter applies.

19

As a result, Art. 11 Brussels IIter is only superseded by the seisure of the court agreed on or by that court instituting proceedings of its own motion. The time when the decision of the court seised pursuant to Art. 10 Brussels IIter concerning jurisdiction becomes unappealable should probably be tak-

23 Precautionary agreements on jurisdiction do not enjoy priority in the case of lis pendens, as is clear from the wording of Art. 20 (5) Brussels IIter – the provision only speaks of a court to which exclusive jurisdiction has been conferred by recognition – in interaction with Art. 10 (1) (b), (4) Brussels IIter (Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX pp. 39 et seq.; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. 24 Cf. on Brussels IIbis Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 7; Pesendorfer in Fasching/ Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 13. 25 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 3; Hausmann, Familienrecht2, note F 225; differentiating Pirrung in Staudinger, BGB: Brüssel IIaVO, Art. 13 Brüssel IIa-VO note C 84 subject to the qualification that the jurisdictional agreement was “clearly set out”; in the negative. 26 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68. 27 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/68.

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en as the basis here. The precondition is that proceedings are not already pending at the court seised under Art. 11 Brussels IIter; in this case, Art. 11 Brussels IIter takes precedence. ee) Examination of jurisdiction The courts of a state whose jurisdiction are due to be based on Art. 11 Brussels IIter, are to examine within the context of Art. 18 Brussels IIter whether another Member State has international jurisdiction pursuant to Arts. 7 to 10, 12 or 13 Brussels IIter (see note 10).28 For the relationship to Art. 10 Brussels IIter see note 14. If another Member State has international jurisdiction, the court must decline jurisdiction of its own motion. In this case, Art. 12 Brussels IIter is not to be applied because according to the provision stated a transfer of jurisdiction presupposes that the Member State in which the court seised is located has international jurisdiction (see Art. 12 note 18).29

20

If proceedings concerning the parental responsibility of a child are already pending before a court of another Member State regarding the same claim, a court of another Member State seised later pursuant to Art. 11 Brussels IIter is to apply Art. 20(2) Brussels IIter.30 The proceedings are to be suspended until the jurisdiction of the court first seised is clarified (see the commentary on Art. 20 Brussels IIter).

21

c) The presence of the child Since the simple presence of the child establishes jurisdiction, the child must be present in a Member State of the Regulation – the state, the courts of which are due to be concerned with the case; i.e. the physical presence of the child in the Member State, the courts of which are seised, is necessary (also see note 5).31

22

In contrast to Art. 7(1) Brussels IIter, it is not explicitly stipulated that the child is to be present in the Member State, the courts of which are concerned with the case at the time when the court is seised. It can be concluded from the differing wording that the child must be present in that Member State during the entire proceedings.32 If habitual residence is relocated to another state, jurisdiction under Art. 11 Brussels IIter ceases. On this view, the principle of perpetuatio fori does not apply within the scope of Art. 11 Brussels IIter. Reference is also made to Art. 6 of the PCC as grounds. Since the principle of perpetuatio fori does not apply within the scope of the PCC, however, whether jurisdiction lapses within the scope of Art. 11 Brussels IIter cannot be derived from the parallel provision.33 Another (in my opinion, accurate) view34 has it that the principle of perpetuatio fori should also apply to Art. 11 Brussels IIter. For details see Art. 7 Brussels IIter note 53. If one follows this

23

28 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 3; Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 16; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 2; Hausmann, Familienrecht2, note F 222. 29 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 3. 30 Cf. also Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 3. 31 Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 2; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 10; Tödter, Europäisches Kindschaftsrecht p. 58. 32 Dörner in Saenger, ZPO9, Art. 13 EuEheVO note 4; Fleige, Zuständigkeit p. 262; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note C 84; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 21; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 8; cf. however Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 6, according to whose opinion jurisdiction does not cease if the child establishes a new habitual residence after the commencement of proceedings; in his opinion, jurisdiction should be transferred here according to Art. 12 Brussels IIter (different for this case Hausmann, Familienrecht2, note F 226); differenzierend Heiderhoff in MünchKommBGB8, Art. 13 Brüssel IIa-VO notes 8 et seq. 33 Cf. also the reference by Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 5. 34 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 19; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/76; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 5; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 10; Weber in Mayr, EuZVR note 4.158.

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Art. 11 Brussels IIter Jurisdiction based on presence of the child view, any court seised later is to suspend its proceedings; in this case, transferring jurisdiction to the courts of another state pursuant to Art. 12 Brussels IIter is conceivable – especially if the child establishes habitual residence in another state.35 24

Under principles of procedural law, it is in any case sufficient if residence is located in the Member State at the time when the court hands down its decision.36 d) Habitual residence cannot be ascertained

25

According to the explicit wording of the provision, the precondition for application is that the habitual residence of the child cannot be ascertained.37 If the child has habitual residence in a state (it is irrelevant here whether habitual residence is located in a Member State or a third country38) and if this can be ascertained, mere residence in a Member State is not sufficient to establish its international jurisdiction. In this case, jurisdiction is determined pursuant to Art. 7(1), Art. 8, Art. 9 Brussels IIter or (if habitual residence is located in a third country) typically in accordance with the legal system of the third country or with the stipulations of international agreements; jurisdiction pursuant to Art. 10 or based on a transfer of jurisdiction that has already occurred is also conceivable. Thus, jurisdiction of the courts of the Member State in which the child is present is not required. If a court is seised on the basis of Art. 11 Brussels IIter, even though the habitual residence of the child was able to be ascertained, the court is to decline jurisdiction under Art. 18 Brussels IIter.39

26

The habitual residence of the child cannot be ascertained if, for example, a child is found possessing no identity documents and will or cannot say anything about its origin,40 and abandoned infant41 or a child that does not establish a habitual residence because it lives a “vagrant life”42, for example;43 the child will typically not abandon one habitual residence without establishing a new habitual residence at the same time,44 which is why Art. 11 Brussels IIter only applies in a few exceptional cases.45 If the child abandons his or her habitual residence without establishing a new habitual residence, Art. 11 Brussels IIter is not to be applied if, before the habitual residence was abandoned, proceedings were already pending before the courts of the Member State in which the habitual residence was located; the competent court under Art. 7(1) Brussels IIter retains jurisdiction in accordance with the principle of perpetuatio fori (see Art. 7 note 53).46

27

Mere difficulties or doubts in ascertaining habitual residence do not suffice.47 For example, if it is questionable in which of two states the child is habitually resident, Art. 11 Brussels IIter does not apply48 (on the question whether the child may be habitually resident in several different states, see 35 Cf. Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 5. 36 Different opinion Rieck in: Schulz/Hauß, Familienrecht3, Art. 13 EheVO 2003 note 1. 37 Cf. also A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); OGH 2 Ob 288/11k SZ 2012/56 = EvBl 2012/146 (Garber) = EF-Z 2013/70 (Nademleinsky). 38 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 3; Geimer, in Geimer/Schütze, EuZVR4, Art. 13 VO (EG) Nr. 2201/2003 note 2; Geimer, in Zöller3,4, Art. 13 VO (EG) Nr 2201/2003 note 1; Hausmann, Familienrecht2, note F 224; Heiderhoff in MünchKommBGB8, Art. 13 Brüssel IIa-VO note 4; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 1. 39 Geimer, in Geimer/Schütze, EuZVR4, Art. 13 VO (EG) Nr. 2201/2003 note 2. 40 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 22. 41 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 22; Kaller, iFamZ 2006, 37, 39. 42 Thus the diction of the ECJ, A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). See also Weber in Mayr, EuZVR note 4.159. 43 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 22; Hausmann, Familienrecht2, note F 223; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note C 84; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 5. 44 Cf. also Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 1; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note C 84; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 5. 45 Cf. also A (C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50). 46 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 3; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 6.

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Art. 7 Brussels IIter note 48). In urgent cases, in which ascertaining habitual residence would run counter to the best interests of the child, Art. 15 Brussels IIter ensures sufficient protection; however, it should be noted that extensive investigations that delay proceedings inappropriately (including beyond the scope of Art. 15 Brussels IIter) must be avoided.49

IV. Refugees and displaced persons – Art. 11(2) Brussels IIter 11(2) Brussels IIter extends the scope of 11(1) Brussels IIter to refugee children or children who are 28 internationally displaced because of disturbances occurring in their Member State of habitual residence. This norm matches the provision in Art. 6(1) of the PCC.50 The provision serves to protect refugees and displaced persons.51 They typically continue to be habitually resident in the state from which they fled or were displaced.52 Habitual residence can only be established in the state of refuge after some time, which is why the state of refuge does not have jurisdiction pursuant to Art. 7(1) Brussels IIter until habitual residence has been established.53 Due to the need to protect them, it is not reasonable that the state from which they have fled or have been displaced should continue to have jurisdiction.54

29

The provision applies when the child is still habitually resident in his or her country of origin55 or has no habitual residence. If he or she already has a habitual residence, that state has international jurisdiction based on Art. 7(1) Brussels IIter. Hence, the examination whether the child’s residence in the state of refuge can be classified as habitual residence or not, which can sometimes be laborious, does not need to be conducted because the state has international jurisdiction anyway, under either Art. 7(1) and (2) Brussels IIter or Art. 11 Brussels IIter.56

30

The Regulation does not define the term “refugee”; in this respect the definition in Art. 1A of the Geneva Convention on Refugees of 1951 determinative (at least in principle).57 To define the term “displaced persons” more closely, recourse can be taken to the definition in Art. 2(c) of Council Directive 2001/55/EC58, according to which displaced persons are nationals of third countries or state-

31

47 Tödter, Europäisches Kindschaftsrecht p. 57; Weber in: Mayr, EuZVR note 4.159. Correctly states Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 6 that the court may not hastily retreat to the fact that a determination of habitual residence is associated with factual or legal difficulties and is therefore impossible, for example because means of certification or evidence are not available, respondents are not accessible or documents must first be translated. Different opinion Kress, Zuständigkeit p. 129. 48 However Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 9. 49 Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 6. 50 Dilger in Geimer/Schütze, IRV Art. 13 VO Nr. 2201/2003 note 8; cf. also Lukits, EF-Z 2016, 298, 303. 51 Garber in FS Edwin Gitschthaler (2020) p. 77, 88; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 7; Hausmann, Familienrecht2, note F 227; cf. also Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 2. 52 Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 7. 53 Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 7; Hausmann, Familienrecht2, note F 227; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 10; OLG Bamberg, FamRZ 2016, 1270 (Mankowski) = FF 2016, 404 (Ring). 54 Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 7; Hausmann, Familienrecht2, note F 227; Tödter, Europäisches Kindschaftsrecht p. 58; cf. also Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIa-VO note 2. 55 However different opinion Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 13 EheVO 2003 note 6, excluding jurisdiction if another court has jurisdiction under Art. 7 Brussels IIter; so auch Heiderhoff in MünchKommBGB8, Art. 13 Brüssel IIa-VO note 13. 56 OLG Karlsruhe, BeckRS 2015, 16544; OLG Bamberg, FamRZ 2016, 1270 (Mankowski) = FF 2016, 404 (Ring) = NZFam 2016, 807 (Hilbig-Lugani); OLG Hamm, NZFam 2017, 866 (Majer) = RPfleger 2018, 22. 57 Garber in FS Edwin Gitschthaler (2020) p. 77, 88; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 8; Hausmann, Familienrecht2, note F 228; Schäuble in Althammer, Brüssel IIa-VO, Art. 13 Brüssel IIaVO note 10; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 12. 58 Council Directive 2001/55/EC of 20.7.2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (ABl 2001 L 212/12).

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State less persons who have been forced to leave their country or region of origin or who have been evacuated, in particular following an appeal by international organisations, and who cannot return safely and permanently because of the situation prevailing in that country. This applies in particular to persons who have fled from areas where there is armed conflict or permanent violence, or who were seriously threatened by systematic or widespread human rights violations or are victims of such violations. It is disputed whether other refugees beyond the terms of the convention (such as economic refugees) should be included.59 In my opinion, the provision does not apply to persons who leave their country exclusively due to personal material hardships and thus for purely economic reasons.60 Nor are refugees due to the environment and the climate included in the scope of Art. 13(2) of Brussels IIbis. This applies in any case where environmental factors do not trigger regional tensions or armed conflict, which then constitute the grounds for displacement.61 32

It is not necessary for the children to have fled or been displaced without their parents or holders or rights or custody.62 According to this, the concept “refugee children” is not restricted to such children who have left their country of origin without their parents or holder of rights of custody.63 Otherwise, jurisdiction for children who continue to be habitually resident in their country of origin who are accompanied by their parents or holders of rights of custody would only be based on the residual jurisdictions pursuant to Art. 14(2) Brussels IIter, even though the courts of the country of origin are usually not able to ensure the protection of the child in these cases either.

33

According to the wording of Art. 13(2) of Brussels IIbis, the children concerned had to have been displaced from “their” country.64 Despite the misleading wording, which could lead to the conclusion that it was nationality that was determinative, the country of the previous habitual residence should be taken as the basis.65 Nationality does not determine the matter.66 This is clarified more explicitly in the recast.67

Article 12 Transfer of jurisdiction to a court of another Member State 1. In exceptional circumstances, a court of a Member State having jurisdiction as to the substance of the matter may, upon application from a party or of its own motion, if it considers that a court of another Member State with which the child has a particular connection would be better placed to assess the best interests of the child in the particular case, stay the proceedings or a specific part thereof and either:

59 Affirmative Gottwald in MünchKommFamFG3, Art. 14 Brüssel IIa-VO note 8; Hausmann, Familienrecht2, note F 228; negatively Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 27; Garber in FS Edwin Gitschthaler (2020) p. 77, 88; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 12. 60 Garber in FS Edwin Gitschthaler (2020) pp. 77, 89 et seq. 61 Garber in FS Edwin Gitschthaler (2020) p. 77, 90. 62 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 28; Garber in FS Edwin Gitschthaler pp. 77, 88 et seq. 63 Dörner in Saenger, ZPO9, Art. 13 EuEheVO note 6; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIaVO note 8; Rieck in Schulz/Hauß, Familienrecht3, Art. 13 EheVO 2003 note 3; however, Lagarde Report note 44 on Art. 6 (1) PCC. 64 See in this regard Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 29. 65 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 29; Gottwald in MünchKommFamFG3, Art. 13 Brüssel IIa-VO note 9; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIa-VO note 12. 66 Garber in Gitschthaler, Familienrecht, Art. 13 Brüssel IIa-VO note 29; Pesendorfer in Fasching/Konecny, Kommentar V/22, Art. 13 EuEheKindVO note 26; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 13 Brüssel IIaVO note 12. 67 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO notes 6/73 and 6/77.

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(a) set a time limit for one or more of the parties to inform the court of that other Member State of the pending proceedings and the possibility to transfer jurisdiction and to introduce an application before that court; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 2. 2. The court of the 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 after: (a) its seisure in accordance with point (a) of paragraph 1; or (b) receipt of the request in accordance with point (b) of paragraph 1. The court second seised or requested to accept jurisdiction shall inform the court first seised without delay. If it accepts, the court first seised shall decline jurisdiction. 3. The court first seised shall continue to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after: (a) the time limit set for the parties to introduce an application before a court of another Member State in accordance with point (a) of paragraph 1 has expired; or (b) that court has received the request in accordance with point (b) of paragraph 1. 4. For the purposes of paragraph 1, the child shall be considered to have a particular connection with a Member State if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; (b) is the former habitual residence of the child; (c) is the State of the nationality of the child; (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 that property. 5. Where exclusive jurisdiction of the court was established under Article 10 that court cannot transfer the jurisdiction to the court of another Member State. I. General remarks . . . . . . . . . . . . . . . . . 1. Synopsis and rationale . . . . . . . . . . . . . 2. Comparison with the doctrine of forum non conveniens . . . . . . . . . . . . . . . . . . . . 3. Scope . . . . . . . . . . . . . . . . . . . . . . . . 4. Restrictive application of the transfer of jurisdiction . . . . . . . . . . . . . . . . . . . . 5. The concept of transfer . . . . . . . . . . . . . 6. The scope of transfer . . . . . . . . . . . . . . 7. Differentiation from the rules concerning parallel proceedings . . . . . . . . . . . . . . . II. Preconditions for the transfer (Art. 12(1) to (5) Brussels IIter) . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . . . 2. The international jurisdiction of the seised court . . . . . . . . . . . . . . . . . . . . . . . . a) General remarks . . . . . . . . . . . . . . . b) Particular features of jurisdiction pursuant to Art. 9 Brussels IIter . . . . . . . . . . . . c) Particular features of national residual jurisdictions . . . . . . . . . . . . . . . . . . b) Particular features of jurisdiction pursuant to Art. 15 Brussels IIter . . . . . . . . . . . e) Jurisdiction or pending proceedings? . . .

1 1 6 9 10 11 12 14 15 15 18 18 21 22 23 24

3. The second state is a Member State Brussels IIter . . . . . . . . . . . . . . . . . . . 4. Particular connection of the child to another Member State . . . . . . . . . . . . . 5. Better placed to assess the best interests of the child . . . . . . . . . . . . . . . . . . . . . . 6. Exceptional circumstances . . . . . . . . . . . 7. Observance of procedural provisions for conducting a transfer of jurisdiction . . . . . a) General remarks . . . . . . . . . . . . . . . b) Proceedings before the court of the first state . . . . . . . . . . . . . . . . . . . . . . . aa) Initiative for a transfer of jurisdiction bb) Concept of party . . . . . . . . . . . . cc) Possibilities for decisions of the first court . . . . . . . . . . . . . . . . . . . dd) Contestability of the decision in the first state . . . . . . . . . . . . . . . . . b) Proceedings before the court of the second state . . . . . . . . . . . . . . . . . . . . . . . aa) General remarks . . . . . . . . . . . . . dd) Contestability of the decision in the second state . . . . . . . . . . . . . . . cc) Admissibility of a further transfer? . . dd) Duration of the transfer of jurisdiction . . . . . . . . . . . . . . . . . . . .

Garber

26 27 34 43 44 44 47 47 50 53 64 65 65 73 74 75

193

Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020) p. 13; Blobel, Unzulässigkeit der forum non conveniens-Doktrin im Europäischen Zivilprozessrecht, GPR 2005, 140; Breuer, Gemeinsame elterliche Sorge – Geltung für ausländische Staatsangehörige in Deutschland, FPR 2005, 74; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Burgstaller/Neumayr, Beobachtungen zu Grenzfragen der internationalen Zuständigkeit, in FS Schlosser (2005) 119; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Dutta, Europäische Zuständigkeiten mit Kindeswohlvorbehalt, in FS Kropholler (2008), p. 281; Dutta/Schulz, Erste Meilensteine im europäischen Kindschaftsverfahrensrecht: Die Rechtsprechung des Europäischen Gerichtshofs zur Brüssel IIa-Verordnung von C bis Mercredi, ZEuP 2012, 526; Fleige, Die Zuständigkeit für Sorgerechtsentscheidungen und die Rückführung von Kindern nach Entführungen nach Europäischem IZVR (2006); Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die neue EheVO und die deutschen Ausführungsgesetze, IPRax 2005, 293; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Hau, Zur Entwicklung des Internationalen Zivilverfahrensrechts in der EU seit 2004, GPR 2005, 143; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführung (2008); Jayme/Kohler, Europäisches Kollisionsrecht 2004: Territoriale Erweiterung und methodische Rückgriffe, IPRax 2004, 481; Kaller, Europaweite Durchsetzung von Obsorge- und Besuchsrecht, FamZ 2006, 37; Klinkhammer, Internationale Verweisung von Kindschaftsverfahren nach der Brüssel IIa-VO, FamRBInt 2006, 88; M. König, Die Anwendbarkeit des forum non conveniens im deutschen und europäischen Zivilverfahrensrecht (2012); Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union (2006); Looschelders, Die Europäisierung des internationalen Verfahrensrechts über die elterliche Verantwortung, JR 2006, 45; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011, 85; Nademleinsky/Neumayr, Forum conveniens und gerichtliche Zusammenarbeit nach Art. 15 EheVO, iFamZ 2007, 320; Pirrung, Internationale Zuständigkeit in Sorgerechtssachen nach der Verordnung (EG) 2201/2003, in FS Schlosser (2005), p. 695; Pirrung, Forum (non) conveniens – Art. 15 EuEheVO vor zwei obersten Common law-Gerichten, IPRax 2017, 562; H. Roth, Zur Anfechtbarkeit von Zwischenentscheidungen nach Art. 15 Abs 1 lit. b EuEheVO, IPRax 2009, 56; Schlosser, Neue Perspektiven der Zusammenarbeit von Gerichten verschiedener EG-Staaten im Kindschaftsrecht, in FS Schwab (2005), p. 1255; Schulz, Das Haager Kindesentführungsübereinkommen und die Brüssel IIa-Verordnung, in FS Kropholler (2008), p. 435; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Tödter, Europäisches Kindschaftsrecht nach der Verordnung (EG) Nr. 2201/2003 (2010).

I. General remarks 1. Synopsis and rationale 1

The forums laid down by Brussels IIter concerning parental responsibility serve to ensure the best interests of the child, as is clear from recital 19 on Brussels IIter. Nevertheless, in actual cases the courts of another Member State may be better placed for deciding the case. In accordance with Arts. 8 and 9 of the PCC, Art. 12 Brussels IIter provides for1 a breach of the duty to grant access to justice.2 In exceptional cases3 and when it is in the child’s best interests, a court that is competent under this Regulation may transfer jurisdiction for the decision partly or wholly to a court of another Member State. The flexibility granted in this way is supposed to ensure that the best interests of the child are respected on a case-by-case basis as much as possible.4 In this way cases of hardship that arise due to the principle of perpetuatio fori, for example, (see Art. 7 note 53 [Garber]) can be prevented by transferring jurisdiction for the decision from one Member State to another.5 1 Cf. also COM (2002) 222 final 11 and Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 1. 2 Cf. also OGH 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik). 3 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 1; Hausmann, Familienrecht2, F note 234; Klinkhammer, FamRBInt 2006, 88, 89; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 7; Rieck in Schulz/Hauß, Familienrecht3, Art. 15 EheVO 2003 note 1; KG Berlin, FamRZ 2006, 16 = NJW 2006, 3503; IQ/JP (Case C-478/17), ECLI:EU:C:2018:812. 4 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/78; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 2; Pirrung in FS Peter Schlosser p. 695, 703. 5 Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 1; cf. also OGH 9 Ob 14/15x EF-Z 2016/ 25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik).

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Even though the provision may lead to a delay in proceedings (this particularly applies if proceedings 2 in the first state are well advanced6) and the transfer of jurisdiction can be abused by one of the parties as a means to drag out legal action, the necessity of the norm and the flexibility in proceedings concerning parental responsibility that it creates is unquestionable.7 In this way jurisdiction can be adapted to the realities of the individual case and the child’s best interests can be respected. Art. 12 Brussels IIter supplements Art. 10 Brussels IIter; in the cases in which no agreement between the parties can be reached pursuant to Art. 10 Brussels IIter, the courts of one of the Member States as well as one of the parties have the option of applying for the transfer of jurisdiction.

3

In Art. 12 Brussels IIter, this is known as “transfer of jurisdiction to a court of another Member State” (as in the heading to Art. 12 Brussels IIter) which thereby deviates from Art. 15 Brussels IIter, which calls the transfer a “transfer to a court better placed to hear the case”.

4

Arts. 12 and 13 Brussels IIter exhibit the following further changes in comparison to Art. 15 of Brussels IIbis: – Requests for transfer of jurisdiction by a court of another Member State are now laid down in their own provision (Art. 13 Brussels IIter) (up till now Art. 15(2)(c) of Brussels IIbis) and now contain more particular stipulations; – All references to the provisions on jurisdiction in the substance of the matter to Brussels IIbis/ Brussels IIter have been removed; – The requirement in the case of a transfer of jurisdiction ex officio or upon application of the court of another Member State that one of the parties must give its consent has been removed; – The transfer of jurisdiction process is regulated more particularly; – The express stipulation that for the purposes of this Article the courts collaborate either directly or via the Central Authorities laid down by Art. 53 of Brussels IIbis has been removed; – The stipulation that if the exclusive jurisdiction of a court has been agreed pursuant to Art. 10 Brussels IIter, this court may not transfer jurisdiction to a court of another Member State.

5

2. Comparison with the doctrine of forum non conveniens Although the Anglo-American doctrine of forum non conveniens8 served as the model for Art. 12 Brussels IIter, according to which a court should not exercise its jurisdiction if the case could be better decided by the court of another state, Art. 12 Brussels IIter exhibits many differences from the doctrine of forum non conveniens. In contrast to the doctrine of forum non conveniens, Art. 12 Brussels IIter does not allow the court in the first state that has jurisdiction per se to unilaterally refuse to handle the case;9 rather, the precondition for a transfer of jurisdiction is the mutual agreement between the courts. In contrast to Art. 15 of Brussels IIbis, the consent of at least one of the parties is no longer necessary, however.10

6

Art. 12 Brussels IIter therefore makes it possible for a transfer of jurisdiction to be cooperative.11 This corresponds to the fact at (in contrast to the doctrine of forum non conveniens12) transferring the case

7

6 Pirrung in FS Peter Schlosser p. 695, 703; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 4. 7 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 2; cf. also Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 3; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIaVO note C 87; crit however Holzmann, Brüssel IIa VO p. 153 and Weber in Mayr, EuZVR note 4.164. 8 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 4; Nademleinsky/Neumayr, IFR2 note 8.57; Solomon, FamRZ 2004, 1409, 1413. 9 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 1; Hausmann, Familienrecht2, F note 235; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 1; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 2. 10 Garber/Lugani, NJW 2022, 2225, 2228. 11 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 5; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 1; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 2; cf. also Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 2. 12 Hau, GPR 2005, 143, 144.

Garber

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State to another court may even be carried out on the initiative of the court that in itself is not competent (see Art. 13 Brussels IIter and the commentary).13 8

With the model of the cooperative transfer of jurisdiction, the European legislators have avoided (for the most part at least) the uncertainties associated with the doctrine of forum non conveniens.14 In addition, they also aspired to regulate the area more precisely in comparison with Arts. 8 and 9 of the PCC.15 The risk of negative or positive conflicts of jurisdiction is effectively restricted by the preconditions laid down by the provision because neither the first court may decline jurisdiction by itself nor may a court in another state unilaterally assume jurisdiction and thereby take over the case.16 3. Scope

9

Art. 10 Brussels IIter refers to all aspects of parental responsibility within the meaning of Art. 2 point 7 Brussels IIter.17 4. Restrictive application of the transfer of jurisdiction

10

According to the first sentence of Art. 12(1) Brussels IIter, the transfer of international jurisdiction to the court of another Member State should be the exception (also see recital 26 on Brussels IIter).18 This is to ensure that the system of jurisdiction provisions in Brussels IIter is not circumvented.19 These provisions serve the best interests of the child so that the need to transfer jurisdiction only exists in exceptional cases. 5. The concept of transfer

11

Art. 12 Brussels IIter does not allow a case to be referred to a court abroad in the technical sense20 that would lead to a court referring proceedings that are pending at it to a court of another state and this court then continuing with these proceedings. Rather, upon the declaration of jurisdiction by the court of the second state the courts of the first state competent under Brussels IIter lose international jurisdiction; the proceedings before the court of the second state are not a continuation but rather begin again.21 The transfer of jurisdiction pursuant to Art. 12 of Brussels 12 IIb is thus the coordinated termination of the proceedings before the court of the first state and the initiation of new proceedings along the same lines before the court of the second state that has assumed jurisdiction.22 13 Dörner in Saenger, ZPO9, Art. 15 EuEheVO note 2; cf. Hau, GPR 2005, 143, 144, according to which the provision represents a “hitherto unique combination of cross-border referral and forum conveniens”. 14 Burgstaller/Neumayr in FS Peter Schlosser, pp. 119, 120 et seq. 15 See COM (2002) 222 final 11; see Burgstaller/Neumayr in FS Peter Schlosser, pp. 119, 120 et seq.; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 7. 16 Fleige, Zuständigkeit, p. 272; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 3. 17 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 18 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 1; Hausmann, Familienrecht2, F note 234; Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 3; Klinkhammer, FamRBInt 2006, 88, 89; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 7; Rieck in Schulz/Hauß, Familienrecht3, Art. 15 EheVO 2003 note 1; KG Berlin, FamRZ 2006, 16 = NJW 2006, 3503; OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky); EP/FO (Case C-530/18) ECLI:EU:C:2019:583; cf. also Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 19 Fleige, Zuständigkeit, p. 273; Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 7; Hausmann, Familienrecht2, F note 234; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 13; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 1. 20 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 2; Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 8; Hausmann, Familienrecht2, F note 235; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 1; Rieck in Schulz/Hauß, Familienrecht3, Art. 15 EheVO 2003 note 2; cf. also Dörner in Saenger, ZPO9, Art. 15 EuEheVO note 1. 21 Klinkhammer, FamRBInt 2006, 88; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 4; H. Roth, IPRax 2009, 56 et seq.; Schulz in FS Jan Kropholler, p. 435, 447; Schulz, IPRax 2009, 56. 22 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 2.

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6. The scope of transfer The possibility of transferring jurisdiction extends to the entire pending proceedings or to certain as- 12 pects of them, such as the administration of property or the regulation of rights of contact.23 The transfer of certain aspects should only be carried out in justified exceptional cases24 because this brings in the risk of decisions diverging from one another25 and makes several sets of proceedings necessary, which puts additional strain on the parties.26 With respect to the scope of the transfer, there must be congruence between the application or decision made in the first state to transfer on the one hand, and the decision to assume jurisdiction on the other;27 otherwise the transfer will fail.

13

7. Differentiation from the rules concerning parallel proceedings Art. 12 Brussels IIter should be differentiated from the rules on handling parallel proceedings, particularly Art. 19 Brussels IIter. In the case of IQ v. JP, the ECJ ruled that the norm is not to be applied if two courts act or desire to act by virtue of their own jurisdiction.28 It states that otherwise such an interpretation would render “Art. 19(2) [of Brussels IIbis] – which aims to resolve, in matters of parental responsibility, situations in which courts in different Member States have jurisdiction – meaningless.” This understanding is not convincing. It has the effect that while the proceedings may be referred to a court that is not competent, they may not to a court that has jurisdiction under the Regulation that has also been seised. Thus the ECJ’s conception is too general and formalistic.29

14

II. Preconditions for the transfer (Art. 12(1) to (5) Brussels IIter) 1. General remarks The preconditions for a transfer of jurisdiction are that: – The court seised has jurisdiction over the substance of the matter (see Art. 12 note 18 [Garber]), – There is no exclusive jurisdiction pursuant to Art. 10 Brussels IIter (see Art. 12 note 20 [Garber]), – Referral is to be made to a court of another Member State (see Art. 12 note 26 [Garber]) with which the child has a particular connection (see Art. 12 note 27 [Garber]) and would be better placed to assess the best interests of the child in that particular case (see Art. 12 note 34 [Garber]), – Exceptional circumstances pertain (see Art. 12 note 43 [Garber]) and – The provisions concerning the proceedings are observed (see Art. 12 note 44 [Garber]).

15

The stated preconditions must be met cumulatively.30

16

C-428/1531,

In Rs. the ECJ ruled that a transfer of jurisdiction pursuant to Art. 15 of Brussels IIbis (now Art. 12 Brussels IIter) is also possible when the decision by which the court of another Member State assumes jurisdiction that an authority of that other Member State thereafter bring proceedings that are separate from those brought in the first Member State, pursuant to its own national law and having regard to possibly different factual circumstances. Nor does the fact that the second state may consider factual circumstances other than those that the first state would have been able to does not

23 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 26; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 12. 24 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 30. 25 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 10. 26 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 9. 27 Coester-Waltjen, FamRZ 2005, 241, 245; Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 10. 28 IQ/JP (Case C-478/17), ECLI:EU:C:2018:812. 29 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 5. 30 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 12. 31 Child and Family Agency/J. D. (C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl).

Garber

197

17

Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State prevent the transfer of jurisdiction. Rather, it is precisely such a possibility that is inherent to this type of mechanism of referring to a court that is better placed to assess the case.32 2. The international jurisdiction of the seised court a) General remarks 18

A condition for applying Art. 12 Brussels IIter is that the court seised with the substance of the matter (i.e. with proceedings on parental responsibility within the meaning of Art. 1(2) or Art. 2(2) points 7 to 10 Brussels IIter) has jurisdiction. As a rule (see Art. 12 note 19 and Art. 12 note 20 [Garber] for restrictions), jurisdiction will be given by Arts. 7 to 11 and 14 Brussels IIter.33 If the seised court does not have jurisdiction, it decline jurisdiction of its own motion pursuant to Art. 19 Brussels IIter. Thus a court not having jurisdiction may not initiate a transfer of jurisdiction.34 If it would appear to be in the best interests of the child for a court to act, the competent court of the other Member State is to be informed via the Central Authorities (cf. Art. 77(2) and Art. 78(1) Brussels IIter.35

19

It is immaterial which provision the court’s international jurisdiction is based on.36 The wording of Art. 12(1) Brussels IIter does not take the international jurisdiction based on Arts. 7 et seq. Brussels IIter as a basis. Brussels IIbis, in contrast, expressly referred to the Regulation’s provisions on jurisdiction in Art. 15(4) sentence 2 and (5) sentence 3 of Brussels IIbis. In my opinion, Art. 15 of Brussels IIbis was also to be applied when the jurisdiction of the seised court was not based on Brussels IIbis – for example in situations where the Regulation was not be applied at the point in time when the courts were seised because the matter did not have an international connection. If an international connection later arose, transferring jurisdiction from the time when Brussels IIbis became applicable was possible if the further preconditions laid down in Art. 15 of Brussels IIbis were met.37 This applies all the more to the scope of Art. 12(1) Brussels IIter which no longer contains any reference to the provisions on jurisdiction Brussels IIter.

20

A transfer of jurisdiction under Art. 12(5) Brussels IIter is ruled out if exclusive jurisdiction of the court was determined under Art. 10 Brussels IIter. This court may not transfer jurisdiction to a court of another Member State.38 The reason is probably that within the scope Brussels IIter the consent of at least one of the parties is no longer a precondition for the transfer of jurisdiction. The point of this rule is to prevent jurisdiction being transferred even though the parties have agreed on the jurisdiction of one of the Member States. As a result, the autonomy of the parties is given higher significance than the best interests of the child. In the context of Art. 10 Brussels IIter, the best interests of the child are to be examined, but it can be the case that it becomes necessary to transfer jurisdiction during the course of proceedings. According to the wording of the provision, a transfer of jurisdiction is also ruled out if the exclusive jurisdiction of the court was determined under Art. 10 Brussels IIter but in the proceedings that follow it becomes necessary to transfer jurisdiction. The parties are not able to consent to this afterwards. This even applies if the choice of court that was initially agreed no longer corresponds to the best interests of the child. This does not seem to be entirely unobjection32 Child and Family Agency/J. D. (C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 33 For jurisdiction under the above provisions, see Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIaVO note 3. 34 Breuer, Ehe- und Familiensachen note 260; Geimer in Geimer/Schütze, EuZVR4, Art. 15 VO (EG) Nr 2201/ 2003 note 3; Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 6; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 6; Weber in Mayr, EuZVR note 4.166; OGH 4 Ob 82/10b EF-Z 2010/155 = iFamZ 2010/232; 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik); cf. also A (Case C-523/07) ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50) sowie 5 Ob 173/09s EF-Z 2010/58 (Nademleinsky) = IPRax 2011/45 (Janzen/Gärtner 412). 35 Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 3; cf. also AG Marl, BeckRS 2021, 18746. 36 Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 6; Schäuble in Althammer, Brüssel IIaVO, Art. 15 Brüssel IIa-VO note 3. 37 To the legal situation under the Brussels IIa Regulation Fleige, Zuständigkeit, pp. 267 et seq. 38 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/87.

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able.39 The wording should be teleologically interpreted so that a transferring jurisdiction subsequently is possible. b) Particular features of jurisdiction pursuant to Art. 9 Brussels IIter A transfer of jurisdiction is also possible within the scope of Art. 9 Brussels IIter. The point of this is 21 to ensure that a certain degree of flexibility in exercising jurisdiction is maintained in these cases as well so that the interests of the child are taken into account as much as possible. Transferring jurisdiction to the courts of the state to which the child was abducted may, however, only take place in absolutely exceptional cases in order to ensure that the provision’s rationale – to ensure the jurisdiction of the Member State of origin so as not to privilege the abductor with respect to the law on jurisdiction – is not contradicted.40 However, the question has not yet been answered by the ECJ. The Landesgericht Korneuburg (Austria) lodged on 9.2.2022 a request for a preliminary ruling (TT/AK (Case C-87/22): Must Art. 15 of Brussels IIbis (is equivalent to Art. 12 Brussels IIter) be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, 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, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal? c) Particular features of national residual jurisdictions Jurisdiction based on residual jurisdiction under national law is sufficient to undertake a transfer of jurisdiction.41

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b) Particular features of jurisdiction pursuant to Art. 15 Brussels IIter The courts of the Member State that are competent for ordering provisional measures pursuant to Art. 15 Brussels IIter are not able to initiate a transfer of jurisdiction pursuant to Art. 12 Brussels IIter.42 Pursuant to Art. 15 Brussels IIter, the courts only have jurisdiction if they do not have competence in the substance of the matter.43 A transfer of jurisdiction would also frustrate the need for urgency.44

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e) Jurisdiction or pending proceedings? It is open to question whether international jurisdiction is sufficient or whether in addition proceed- 24 ings on the substance of the matter must already be pending.45 In a request for a preliminary ruling, the ECJ46 did not have to answer this question due to a lack of relevance. The wording of Art. 12 Brussels IIter argues for proceedings already having to be pending.

39 Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225, 2228. 40 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 1; different opinion Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 32; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 17; Schulz in FS Jan Kropholler, p. 435, 444, according to which a transfer of jurisdiction should not be made in the case of an illegal transfer or detention. 41 Tödter, Europäisches Kindschaftsrecht, p. 62. 42 A (Case C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 6. 43 A (Case C-523/07), ECLI:EU:C:2009:225 = IPRax 2012, 76 (Pirrung 50); Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 6. 44 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 19; cf. also Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 22. 45 Cf. Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 11; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 21. 46 E/B (Case C-436/13), ECLI:EU:C:2014:2246.

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The following should be differentiated here (as was already the case under Brussels IIbis47): 1. Should a transfer of jurisdiction pursuant to Art. 12 Brussels IIter take place, proceedings on the substance of the matter must already be pending. This can be ascertained from the wording of the provision. According to Art. 12(1) Brussels IIter, the court is to stay the proceedings or a specific part thereof; according to Art. 12(2) Brussels IIter it shall “continue to exercise its jurisdiction” if certain preconditions are met. Art. 12(2) Brussels IIter uses the phrase “the court first seised”. It follows from this conception that proceedings must be pending. 2. It is not a precondition for a transfer of jurisdiction under Art. 13 Brussels IIter that proceedings on the substance of the matter should already be pending. A court of a Member State that does not have jurisdiction under this Regulation may, if the preconditions stated in Art. 13 Brussels IIter are met, request the transfer of jurisdiction from the court of the Member State of the child’s habitual residence. The fact that proceedings are pending is not stipulated as a precondition, which means that the court of this Member State may also act if the proceedings on the substance of the matter are not yet pending. 3. The second state is a Member State Brussels IIter

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Jurisdiction pursuant to Art. 12 Brussels IIter may only be transferred to a court of another Member State Brussels IIter; thus transferring jurisdiction to a court of a third country (Denmark is also a third country within the meaning of the Regulation (cf. recital 96 on Brussels IIter) is not possible.48 The courts of the other Member State do not, however, need to have international jurisdiction; otherwise Art. 12 Brussels IIter would typically be meaningless. Art. 12 Brussels IIter is to be differentiated from the rules on handling parallel sets of proceedings, and from Art. 19 Brussels IIter in particular. In the case of IQ v. JP, the ECJ even ruled that Art. 12 Brussels IIter is not to be applied when two courts act or wish to act by virtue of their own jurisdiction.49 This understanding is not convincing. The effect of it is that while the proceedings may be referred to a court that is not competent, they may not be to a court that has jurisdiction under the Regulation that has also been seised. Thus the ECJ’s conception is too general and formalistic.50 4. Particular connection of the child to another Member State

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The child must have a particular connection to the other Member State. In Art. 12(4) Brussels IIter (following Art. 8 of the PCC but without a conclusive general clause such as that in Art. 8(2)(d) of the PCC)51 five points of connection are stated that may argue in favour of transferring jurisdiction. The five points of connection are related as alternatives to each other.52 According to recital 26 on Brussels IIter (in accordance with the case-law of the ECJ)53 “[this] Regulation should set out an exhaustive list of the decisive elements of such ‘particular connection’”. This is presumably supposed to take the necessary restrictive application of the provision into account. However, this conclusive list does not correspond to the function of the provision.54 A transfer of jurisdiction must be possible on 47 Cf. Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 11; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 21. 48 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 26; Geimer in Geimer/Schütze, EuZVR4, Art. 15 VO EuEheVO notes 2 et seq. 49 IQ/JP (Case C-47814/17), ECLI:EU:C:2018:812. 50 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 5. 51 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 6; Hausmann, Familienrecht2, F note 247; Klinkhammer, FamRBInt 2006, 88, 89; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 6. Cf. also Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 8, who, however, states that in other cases a referral will hardly come into consideration; for a taxative list: Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl); Commission, Practice Guide p. 27; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note C 89. 52 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 8. 53 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl); EP/FO (Case C-530/18), ECLI:EU:C:2019:583. 54 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/89.

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a case-by-case basis, including when the particular connection in that particular case is created differently than as stated in Art. 12(4) Brussels IIter. If the child has a connection to a Member State in the case to be assessed, it must be possible to transfer jurisdiction, even when the kind of connection does not match one of these five points of connection. The Regulation recognises in Art. 10(1)(a) Brussels IIter that other kinds of connection may exist (as the wording makes clear) which contains a demonstrative list with respect to the particular connection of the child to a Member State. In contrast, according to the prevailing scholarly opinion (and contrary to the view55 of the ECJ56), the list contained in Brussels IIbis was demonstrative. According to this, the particular connection could also arise from other circumstances. A particular connection could also come about by siblings residing in another Member State57 or by other proceedings being pending in the other state that concern the same child.58 Due to the conclusive nature of this list, a referral may no longer be based on the fact that other persons whom the child is attached or siblings are habitually resident in another Member State; thus, a uniform and harmonised arrangement of rights of custody is not always possible. In the view of the ECJ59, Art. 12(4)(a) and (b) Brussels IIter are not even supposed to be analogously applicable to the comparable provision in Brussels IIbis if the child was habitually resident in the Member State to which the proceedings are to be transferred not only in the period of time before the court was seised but (for the most part) at the point in time when the court was seised and afterwards. This understanding is not convincing.60 The circumstances of the points of connection listed in Art. 12(4) Brussels IIter are a rebuttable pre- 28 sumption;61 thus, if one of these sets of circumstances applies, it is presumed, subject to rebuttal, that a particular connection qualifying for a transfer of jurisdiction exists;62 however, the court may also reject the existence of a particular connection even if grounds exist.63 As a rule the existence of one of the five points of connection given in Art. 12(4) Brussels IIter will not suffice to justify a transfer. As a rule of thumb, generally two or more of the criteria given in Art. 12(4) Brussels IIter should be fulfilled for the transfer to match the best interests of the child.64 According to 12(4)(a) Brussels IIter a particular connection to another Member State exists if this Member State has become the habitual residence of the child after the courts of the first state have been seised.65 The point of (a) is to ensure that a transfer of jurisdiction can be carried out in the case that the court first seised has jurisdiction based on the habitual residence of the child in that state and the child establishes habitual residence in another state during the proceedings. The courts of that state continue to have jurisdiction under the principle of perpetuatio fori and new proceedings pursuant to Art. 19(2) Brussels IIter in the state of the new habitual residence would not be permissable. In order to compensate for the cases of hardship that will in any event occur a transfer of jurisdiction may take place.66 The case set out in (a) is probably the most significant in

55 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 36; Gruber, IPRax 2005, 293, 297; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 6; Klinkhammer, FamRBInt 2006, 88, 89; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 28; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 6; different opinion Hausmann, Familienrecht2, F note 247. 56 IQ/JP (Case C-478/17), ECLI:EU:C:2018:812. 57 Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 6. 58 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 9. 59 IQ/JP (Case C-478/17), ECLI:EU:C:2018:812. 60 Crit. also Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 6. 61 Hausmann, Familienrecht2, F note 248; Rausch, FuR 2005, 58; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 6. 62 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 4; however – Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 8 – must the presumption of conformity be considerably relativised due to the subsequent examination of the best interests of the child. 63 Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 6. 64 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 29. 65 Cf. OLG Karlsruhe, BeckRS 2015, 19394. 66 Fleige, Zuständigkeit, p. 277; Hausmann, Familienrecht2, F note 243. S auch OGH 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik).

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29

Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State practice.67 It should be noted that where habitual residence changes after the court has been seised, perpetuatio fori is not supposed to be broken automatically,68 but only if the other preconditions are met. 30

According to Art. 12(4)(b) Brussels IIter a particular connection to another Member State exists if it is the former habitual residence of the child. Letter (b) is of significance in those cases in which the courts of the Member State are seised pursuant to Art. 11 Brussels IIter, in which the child is located (after giving up its previous habitual residence on another Member State) without establishing habitual residence in it.69 In this case a transfer of jurisdiction may be a sensible measure. A transfer of jurisdiction is also conceivable if it is important to elucidate past circumstances, such as if the family has been under observation by the authorities for a long time or if the language barrier in the new state of residence is very difficult to overcome.70 According to the wording, all previous habitual residences is sufficient, which means that a child that has moved its habitual residence frequently may have a connection to several states. The connection is probably strongest to the state in which the child had his or her last habitual residence,71 which means that as a rule the last habitual residence is to be taken as the basis.72

31

Art. 12(4)(c) Brussels IIter connects to the matter of the child’s nationality. This is always determined by current nationality.73 If the child is a national of several Member States, a particular connection exists to each of these Member States without it depending on which nationality is effective.74 Even though effective nationality is not to be examined, the strength of the connection is a criterium for consideration whether a referral can be made.75

32

According to Art. 12(4)(d) Brussels IIter, a connection can also be assumed in the Member State is the habitual residence of a holder of parental responsibility.76 In the case of Art. 12(4)(d) Brussels IIter, other points of reference to the state which is the habitual residence of one of the holders of parental responsibility should exist in order to be considered as the basis for a referral.77 This can prevent one of the holders of parental responsibility from attempting to establish habitual residence in this state in order to fraudulently obtain the jurisdiction of the courts of this state.78 A transfer of jurisdiction may be a sensible measure in this case if the proceedings do not concern the child directly but rather the holder of parental responsibility whose habitual residence the state is. Where it is a matter of the appropriateness of him or her exercising parental responsibility, it may accord with familiarity with the situation if the courts of the state which is his or her habitual residence decide the matter. The ECJ79 considers this criterium to be especially significant when a referral is requested not for the entire case but only for certain parts of it.

67 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 14; Holzmann, Brüssel IIa VO pp. 150 et seq.; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 27. 68 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 27. 69 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 10. 70 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 15. 71 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 10. 72 Cf. also Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 10; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 27, according to which the provision is to be interpreted restrictively and only the last habitual residence is decisive. 73 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 11. 74 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 11; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note C 101; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 14; Weber in Mayr, EuZVR note 4.172; different opinion Hau, IPRax 2010, 50, 53; Hausmann, Familienrecht2, F note 244; Kress, Zuständigkeit, p. 138; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 7. 75 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 14. 76 Crit Fleige, Zuständigkeit, pp. 278 et seq., because it is not based on the person of the child. 77 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 27; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 15. 78 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 15. 79 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl).

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According to Art. 12(4)(e) Brussels IIter, it is sufficient if the Member State is the place where prop- 33 erty of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of that property.80 In this case, it is not the habitual residence of the child that brings about the proximity of the court to the matter but the location of his or her property.81 This jurisdiction according to location is to be limited to the property located in that state.82 5. Better placed to assess the best interests of the child According to Brussels IIter, the court must be better placed to assess the best interests of the child in that particular case. If is not sufficient for it to be able to safeguard the best interests of the child in at least the same manner as the court that is otherwise competent. A transfer of jurisdiction must therefore add “real and actual value” with respect to the best interests of the child.83 This would be the case, for example, if the child (only) speaks84 the language of the courts of the state to which jurisdiction is to be transferred, or if the child is currently located in that state.85 On the other hand, it must be considered whether the referral could have any negative effects “on the child’s emotional, family and social relationships or on his or her material situation”.

34

The fact that the substantive law of the second state is to be applied and that the transfer of jurisdiction leads to a synchronisation of forum and law also means that the best interests of the child can be better taken into account because there is a higher guarantee that decisions will be correct. It should be assumed that the legal provisions that the court is to apply serve the best interests of the child, which is why applying them correctly is crucial.

35

The consequences in substantive law of a transfer of jurisdiction are, however, not determinative.86 36 Thus, an examination of substantive law in the context of Art. 12 Brussels IIter is not to be undertaken.87 It is therefore not determinative whether the substantive law to be applied by the other court is more beneficial for the child or not. Otherwise a comprehensive examination of all the aspects of the child’s interests affected by jurisdiction would have to be conducted. This examination of jurisdiction would be completely overloaded with details88 and the uniform application Brussels IIter across the EU would also be jeopardised.89 Taking jurisdiction into account in this way would contradict the principles of mutual trust between Member States and the mutual recognition of court decisions on which it is based. Neither is it a matter of the requested court having all the options for decisions at its disposal that the legal system of the referring court has.90

80 Crit Fleige, Zuständigkeit, pp. 278 et seq., because it is not based on the person of the child. 81 The restrictive interpretation corresponds to the criticism voiced in the legislative procedure. In its opinion of 18.9.2002 (SOC/118), for example, the Economic and Social Committee expressed reservations about the possibility of referral to a court of the Member State “in which the child’s property is located” provided for in Art. 15 (1) (d) Brussels IIbis. In its opinion submitted during the consultation procedure on 20.11.2002, the European Parliament also referred more generally to a possible risk of abuse and demanded that the possibility of referral should be as restrictive as possible in order to prevent holders of parental responsibility from filing an application for referral for tactical reasons in order to delay the proceedings. 82 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO notes 29, 41. 83 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 84 Tödter, Europäisches Kindschaftsrecht, p. 65; cf. also Kammergericht, FGPrax 2006, 261. 85 Kaller, FamZ 2006, 37, 40; Tödter, Kindschaftsrecht, p. 65; cf. also OLG Karlsruhe, BeckRS 2015, 19394. 86 Cf. Dutta in FS Jan Kropholler, pp. 281, 287 et seq. 87 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 30; Geimer in Geimer/Schütze, EuZVR4, Art. 12 VO (EG) Nr 2201/2003 note 22. Cf. also Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C: 2016:819 = FamRZ 2016, 2071 (Gössl). 88 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 15. 89 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/96; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 15. 90 Hausmann, Familienrecht2, F note 250.

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State 37

Being better placed means in particular that the courts of the second state are closer to the matter and to the evidence;91 for example, because: (1) As already mentioned, the substantive law of the second state is to be applied and the transfer of jurisdiction leads to a synchronisation of forum and law; the particular provisions of substantive law may not be taken into account under any circumstances. (2) The place of residence of the parent entitled to visit is located in the second state and the proceedings affect visiting rights; witnesses and experts are located in the second state,92 (3) The child speaks the language of the court (see Art. 12 note 34 [Garber]), (4) The child is located in this state at that time (see Art. 12 note 34 [Garber]), (5) The child protection authorities of the state have already been familiar with the family’s affairs from the past93 or (6) Property is located in the second state and the subject-matter of the proceedings concerns this property.94

38

Being better placed is also to be assumed if other proceedings that concern the child or merely his or her siblings are already pending in the other state.95

39

In principle, a referral can also be considered if the parents have changed habitual residence together with the child because they want to avoid measures taken by the state (such as the withdrawal of parental responsibility) and the proceedings from the new state of residence are now to be given “back” to the old state of residence.96 It is important that the grounds for the referral must really derive from an attempt to make a decision that is better suited to the best interests of the child and not from a kind of reprimanding the parents.97 The transferring court must establish whether the benefits in the previous state of residence (more proximity due to longer familiarity with the case) really do outweigh the drawbacks. The ECJ has convincingly expanded the criteria for assessment and included the impending change of foster family in which the child had settled, for example.98

40

In the view of the ECJ99, procedural rules, such as the rules on handling the evidence necessary in the case, may also be taken into account.100 As part of its assessment pursuant to Art. 12 Brussels IIter, the court may take into account procedural rules that are applicable under the law of another Member State if they have a definite effect on the capacity of the courts of that Member State to be able to assess the case better, particularly if they make it easier to take evidence and witness statements and thereby contribute to the decision of the case in the best interests of the child. On the other hand, one cannot generally and abstractly assume that laws of another Member State (such as the rules on the examination of the case in non-public proceedings by specialist judges, for example) constitute a circumstance that is to be taken into account by the competent judge in the assessment of whether a court exists that is better placed to assess the case.101 The competent court may only take these differences into account if they are appropriate, in comparison with the case that it would remain seised

91 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 29; Hausmann, Familienrecht2, F note 249; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 5; Tödter, Europäisches Kindschaftsrecht, p. 65. 92 Hausmann, Familienrecht2, F note 249. 93 OGH 5 Ob 80/16z EF-Z 2017/23 (Nademleinsky). 94 Hausmann, Familienrecht2, F note 249. 95 Hausmann, Familienrecht2, F note 249. 96 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). In this case, the mentally ill mother had moved from England to Ireland before the birth of the child to avoid the child’s release for adoption. 97 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 98 Heiderhoff in MünchKommBGB8, Art. 15 Brüssel IIa-VO note 15. 99 Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). 100 More restrictive Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 15, according to which only criteria of a purely jurisdictional nature are to be taken into account, other procedural or substantive legal consequences are irrelevant. 101 EP/FO (Case C-530/18), ECLI:EU:C:2019:583.

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with the matter, to making a real and actual contribution to a decision concerning this child.102 As already mentioned, the actual rules of substantive law may not be taken into account.103 The assessment is to be made based on the circumstances of the actual case in question;104 being generally and abstractly “better placed” to decide the case is not sufficient.105 Accordingly, the fact that the courts of the other state usually make decisions more quickly and that proceedings generally do not take so long is not sufficient. Nor can a transfer of jurisdiction be justified by the seised court of the first state being overloaded.106 Taking this into account would contradict the principle of mutual trust in the justice systems of the Member States and their equal value.

41

The court in the second state must be significantly better able to decide the case;107 the jurisdiction of the other state must clearly suggest itself.108 The assessment is to be made within the context of an overall consideration of the matter. Thus it is not sufficient if only individual aspects of the case advocate a transfer of jurisdiction.109

42

6. Exceptional circumstances According to the first sentence of paragraph (1), the transfer of international jurisdiction to the court 43 of another Member State should constitute the exception (also see recital 26 and 27 on Brussels IIter). This is to ensure that the system of jurisdictions pursuant to Arts. 7 to 11 Brussels IIter is not undermined.110 These provisions serve the best interests of the child so that the need to transfer jurisdiction only exists in exceptional cases. 7. Observance of procedural provisions for conducting a transfer of jurisdiction a) General remarks The procedural provisions for conducting the transfer of jurisdiction must have been kept.

44

According to Art. 15(6) of Brussels IIbis, the courts were to cooperate for the purposes of this Art. either directly or through the Central Authorities designated pursuant to Art. 53 of Brussels IIbis. Art. 12 Brussels IIter no longer contains a corresponding rule. Under Art. 79 Brussels IIter, the requested Central Authorities, acting directly or through courts, competent authorities or other bodies, take all appropriate steps to facilitate communication between courts, where necessary, in particular for the application of Art. 81 Brussels IIter (cf. the previous Art. 55(c) of Brussels IIbis), so that in this regard there is no difference to Brussels IIbis.

45

The courts involved may also cooperate via one of the Central Authorities or via both Central Authorities (Art. 53 of Brussels IIbis), although there is no duty to do so111.

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102 103 104 105 106 107 108 109

EP/FO (Case C-530/18), ECLI:EU:C:2019:583. Child and Family Agency/J. D. (Case C-428/15), ECLI:EU:C:2016:819 = FamRZ 2016, 2071 (Gössl). Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 25. Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 25. Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note C 90. Solomon, FamRZ 2004, 1409, 1414. Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 24. Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 10; Klinkhammer, FamRBInt 2006, 88, 89; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 26; cf. also KG Berlin, NJW 2006, 3503. 110 Fleige, Zuständigkeit, p. 273; Hausmann, Familienrecht2, F note 234; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 13; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 1. 111 On the Brussels IIa Regulation Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 66.

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State b) Proceedings before the court of the first state aa) Initiative for a transfer of jurisdiction 47

The initiative to carry out a transfer of jurisdiction may be given by: – One party or jointly by both parties,112 – By the court at which the proceedings are pending “in the substance of the matter” (Art. 12(1) Brussels IIter), or – by the court of another Member State to which the child has a particular connection and which in its view is appropriate to exercise jurisdiction within the meaning of the best interests of the child (Art. 13 Brussels IIter).

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According to Brussels IIbis, a transfer of jurisdiction could not take place against the joint will of both parties.113 If the application is initiated by the court of the first state or the court of the second state, at least one of the parties must consent to it. It is immaterial whether it is the applicant or the respondent who consents.114 This also applies if the proceedings are initiated ex officio.115 In this case, too, the consent of at least one (potential) party is required. The recast no longer provides for this restriction. The rule in Brussels IIter corresponds to Arts. 8 and 9 of the PCC.116

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The court must first check that the preconditions have been met. The decision to carry out a transfer of jurisdiction is made at its discretion (“may” in Art. 12(1) Brussels IIter as well as recital 26 on Brussels IIter).117 Even when all the preconditions have been met, the court is not obliged to transfer the proceedings.118 bb) Concept of party

50

It is open to question which party is authorised to initiate the transfer.119 The concept is determined by the lex fori of the first state.120 Those persons are entitled to the right to initiate under Art. 12(2)(c) Brussels IIter who have the status of being a party in main proceedings.

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It is open to question whether the child under national law may be a party within the meaning of Art. 12 Brussels IIter. According to the opinion represented here, there seems to be a stronger argument for the child not being able to be a party according to the rules Brussels IIter but for his or her interests being conclusively taken into account through the possibility of carrying out a transfer of jurisdiction ex officio as well as through the examination of the best interests of the child.121

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If a person is not a party to proceedings (such as a sibling of the child concerned) he or she may only suggest a transfer to the court.122

112 Rieck in Schulz/Hauß, Familienrecht3, Art. 15 EheVO 2003 note 2. 113 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 4; Hausmann, Familienrecht2, F note 239. 114 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO notes 39 et seq.; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 23. 115 Cf. also Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 5. 116 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 551. 117 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/104; Weber in Mayr, EuZVR note 4.164; EP/ FO (Case C-530/18), ECLI:EU:C:2019:583. 118 Dörner in Saenger, ZPO9, Art. 15 EuEheVO note 1; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/104; EP/FO (Case C-530/18), ECLI:EU:C:2019:583; different opinion Weber in Mayr, EuZVR note 4.175. 119 In detail Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 37. 120 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 37. 121 Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 5; different opinion Hausmann, Familienrecht2, F note 239; Heiderhoff, IPRax 2013, 214 et seq. 122 Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note C 96.

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cc) Possibilities for decisions of the first court The court must first check that the preconditions have been met. The decision to carry out a transfer 53 of jurisdiction is made at its discretion (“may” in paragraph (1)).123 Even when all the preconditions have been met, the court is not obliged to transfer the proceedings.124 If a transfer of jurisdiction is to be carried out, the court of the first state has two alternatives. It can either: – Set a time limit for one or more of the parties to inform the court of that other Member State of the pending proceedings and the possibility to transfer jurisdiction and to introduce an application before that court; here, Brussels IIter diverges from Brussels IIbis according to which the court could invite the parties to make an application at the court of that other Member State, or – To request a court of another Member State to assume jurisdiction in accordance with Art. 15 of Brussels IIbis.

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The court of the first state is responsible for choosing between the two alternatives.125 A hierarchy between (a) and (b) does not exist.126

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Pursuant to recital 26 Brussels IIter, the court having jurisdiction should make the request to the court of another Member State only if its prior decision to stay the proceedings and make a request for transfer of jurisdiction has become final where that decision can be appealed under national law. Recital 26 Brussels IIter has not been anchored in the normative part Brussels IIter; waiting for the decision to become final seems to be sensible for reasons of procedural economy.127

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The first option is particularly suitable for proceedings which are initiated by a request by one of the parties for relief;128 the second alternative, for proceedings that are initiated ex officio.129 It should be noted, however, that since it is easier to establish the correlation between transfer and acceptance, the direct method under Art. 12(1)(b) Brussels IIter is more practical than the indirect method under Art. 12(1)(a) Brussels IIter.130 As a rule, jurisdiction can be established more quickly by the procedure under Art. 12(1)(b) Brussels IIter131

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The parties are to be granted the right to be heard with respect to the procedure to be taken in order to fulfil the requirements of proceedings according to the rule of law.132

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If the court selects the first option, it is to set the parties a time limit. The Regulation does not stipulate a maximal time limit. The suggestion made by the European Parliament to standardise the time limit at one month was not included in the Regulation. This is to ensure that the circumstances of each individual case are taken into account. The length of the time limit is determined by the circumstances in each case.133 Distances and language barriers are to be taken into account in particular.134 Since the court of the second state has a period of six weeks for examination in order to assume juris-

59

123 Weber in Mayr, EuZVR note 4.164. 124 Different opinion Weber in Mayr, EuZVR note 4.175. 125 On the Brussels IIb Regulation see Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 45; Weber in Mayr, EuZVR note 4.175. 126 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/106. 127 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/107. 128 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 19a. 129 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 20. 130 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 45; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note C 92. 131 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 51; Weber in Mayr, EuZVR note 4.177. 132 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 42. 133 On the Brussels IIb Regulation see Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 17; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 25; cf. also Fleige, Zuständigkeit, p. 268. 134 On the Brussels IIa Regulation see Fleige, Zuständigkeit, p. 269; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 47.

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State diction, the time limit should be kept short and not be longer than one month.135 This would otherwise lead to a significant delay in proceedings.136 A longer time limit may be appropriate from case to case. If the time limit set by the court of the first state expires without an application being made, the court of the first state continues to have jurisdiction and must continue the proceedings.137 The recast contains an express rule on this point. The court first seised continues to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after the time limit set for the parties to introduce an application before a court of another Member State in accordance with Art. 12(1)(a) Brussels IIter has expired. 60

The court that has jurisdiction for the decision may also approach the court of the other Member State directly to request that it assumes jurisdiction. The request may be made either directly or via the Central Authority. The Regulation does not lay down in which form the request to assume jurisdiction must be made;138 this is determined by national law. The court continues to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after that court has received the request in accordance with Art. 12(1)(b) Brussels IIter.

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It follows from Art. 12 Brussels IIter that the court in the first state is to name a particular court in the second state. According to the wording, it is not sufficient to name another Member State, rather the provision always refers to a court of a Member State. It is open to question whether a court that does not have local jurisdiction under national law can be granted the power to decide cases under European law. Since the Regulation does not intervene in local jurisdiction, this should probably be answered in the negative.139 If the court of the first state has not named a particular court of the other Member State, the parties may approach any court of that state that has local jurisdiction lege fori.140 On the other hand, when a particular court is named, it is open to question whether the party may appeal to this court only or whether it may also appeal to other courts of this state.141 In my view the party should also have the option of being able to bring a motion before another court, otherwise the party would still have to bring it before the court named by the first state when its lack of jurisdiction is obvious, which does not seem to make much sense.

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The form in which the motion is to brought before the court of the second state is determined by the national law of the second state.142

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If the time limit set by the court of the first state expires without an application being made, the court of the first state continues to have jurisdiction and must continue proceedings. dd) Contestability of the decision in the first state

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The Regulation does not regulate whether or under what circumstances a decision in the first state is may be contested. This is determined by the provisions of national procedural law of the first state.143

135 On the Brussels IIa Regulation see Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 17; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 2; Neumayr in Fasching/ Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 47; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 25; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 11; Weber in Mayr, EuZVR note 4.175. 136 On the Brussels IIa Regulation see Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 55; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 2; Hausmann, Familienrecht2, F note 254; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 11; Tödter, Kindschaftsrecht, p. 68. 137 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/108. 138 Nademleinsky/Neumayr, IFR2, note 8.58. 139 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 35. 140 Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 31. 141 In that direction Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 30. 142 Fleige, Zuständigkeit, p. 269; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 49.

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b) Proceedings before the court of the second state aa) General remarks The proceedings before the courts of the second state are completely independent;144 the question which persons have the status of party is determined by the local lex fori.145 It can therefore not be ruled out that not all those who were parties before the courts of the first state will also have the status of party before the court of the second state.

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The court in the second state is to examine pursuant to Art. 12(2) Brussels IIter whether claiming jurisdiction based on particular circumstances is in the best interests of the child. In examining the child’s best interests, the court of the second state is not bound by the assessment by the court of the first state.146 It examines the preconditions for accepting jurisdiction independently and reaches a decision about this independently of the decision handed down in the first state.147 Whether the parties are to be heard at this stage is determined by national law.148

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The court of the second state is to reach a decision within the time limit of six weeks laid down by 67 the Regulation from service of the order to transfer jurisdiction [(1)(b)] or receipt of an application by one of the parties [(1)(a)].149 If the court in the second state assumes jurisdiction, international jurisdiction with respect to the 68 pending proceedings or to the part of the proceedings affected by the transfer is transferred to the court in the second state.150 The declaration in the second state is constitutive in respect of the transfer and its scope,151 while the following declaration to be made by the court in the first court concerning its lack of jurisdiction is now only declarative.152 Friction was able to arise in the scope of Brussels IIbis when a motion was brought before a court in 69 the second state but the court in the first state was not informed of this so that after the time limit expired it assumed that it still had jurisdiction.153 Jurisdiction passed over constitutively in this case too.154 This was because the effectiveness of the declaration of jurisdiction by the court in the second state did not depend on whether the court in the first state had been informed about the continuation of proceedings in the second state.155 According to the recast, the court seised or requested to assume jurisdiction second must inform the court seised first without delay. If it assumes jurisdiction, the court first seised declines jurisdiction. This provision serves to safeguard the certainty of the law. If the court does not issue an order to assume jurisdiction within the time limit of six weeks because either an order rejecting it or no order at all is handed down, the transfer process fails and the court

143 BGH, FamRZ 2008, 1168 = IPRax 2009, 77 (H. Roth 56); 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik); OLG Stuttgart, FamRZ 2014, 1930 = IPRax 2015, 251 = NJOZ 2015, 565. 144 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/110. 145 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 57. 146 Dörner in Saenger, ZPO9, Art. 15 EuEheVO note 12; Gottwald in MünchKommFamFG3, Art. 15 EWG VO 2201/2003 note 14; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 58; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 15. 147 Cf. also Kress, Zuständigkeit, p. 140. 148 OLG Karlsruhe, NJOZ 2021, 613. 149 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 58. 150 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 59. 151 OGH 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik); Nademleinsky/Neumayr, IFR2, note 8.58; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 59; Schlosser in FS Dieter Schwab, p. 1255, 1265. 152 OGH 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik); Nademleinsky/Neumayr, IFR2, note 8.58; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 59. 153 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 60. 154 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 60. 155 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 60.

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Art. 12 Brussels IIter Transfer of jurisdiction to a court of another Member State of the first state retains international jurisdiction.156 The proceedings before the first court are to be continued. The recast contains an express rule on this point. The court first seised continues to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after: – the time limit set for the parties to introduce an application before a court of another Member State in accordance with Art. 12(1)(a) Brussels IIter has expired or – this court has received the request in accordance with Art. 12(1)(b) Brussels IIter. 71

The court first seised must also continue to exercise its jurisdiction if the court of the second state assumes jurisdiction but the court of the first state does not receive notice of this declaration within seven weeks. This avoids gaps in legal protection.

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If the court in the second state accepts the case and the declaration reaches the court of the first state within the time limit, the court in the first state loses jurisdiction upon the declaration of jurisdiction being made. This declaration of declining jurisdiction is to declare and state the extent to which jurisdiction has been transferred. It appears reasonable to wait for the declaration by the court in the second state to become binding.157 In this case the court of the first state may not re-examine whether the preconditions for the transfer of jurisdiction are still being met.158 This follows from the clear wording of the provision. According to this, the court originally seised declines jurisdiction in as far as the seised court of the other Member State affirms its jurisdiction within the given time limit. The rule does not require any other preconditions for declaring the lack of jurisdiction. If the preconditions for suspending proceedings were to be re-examined, this would also run contrary to the need for legal certainty. Otherwise, after the other court had been seised based on the decision to suspend proceedings, there would be the risk that two courts would be concerned with the same matter. It is precisely this that the structure of Art. 7 et seq. Brussels IIter seeks to avoid159. dd) Contestability of the decision in the second state

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In the absence of an autonomous rule in European law, the question whether the order by the second state may be contested is determined by the national law of the second state.160 cc) Admissibility of a further transfer?

74

According to recital 13 on Brussels IIbis, the court in the second state was not authorised to refer the case to a third court.161 Although the recast no longer contains such a recital, this restriction should still be observed. If the court in the second state holds the view that a court in a third Member State would be better placed to assess the case, it must reject assuming the case on these grounds.162 The court of the first state may initiate a transfer of jurisdiction to the courts of the third Member State,163 but it is not obliged to do so.164 156 On the Brussels IIa Regulation see OGH 9 Ob 14/15x EF-Z 2016/25 (Nademleinsky) = EvBl 2016/8 (Pesendorfer) = iFamZ 2015/199 (Fucik); Nademleinsky/Neumayr, IFR2, note 8.58; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 58. 157 On the Brussels IIa Regulation see Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 73; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 64. 158 OLG Karlsruhe, NJOZ 2021, 613. 159 OLG Karlsruhe, NJOZ 2021, 613. 160 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 25; Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 62; Weber in Mayr, EuZVR note 4.179. 161 Dilger in Geimer/Schütze, IRV Art. 15 VO Nr 2201/2003 note 23; Fleige, Zuständigkeit, p. 267 n 196; Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 472; Rieck in Schulz/Hauß, Familienrecht3, Art. 15 EheVO 2003 note 8; Schäuble in Althammer, Brüssel IIa-VO, Art. 15 Brüssel IIa-VO note 16; Solomon, FamRZ 2004, 1409, 1414; different opinion Breuer, Ehe- und Familiensachen note 262. 162 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 63. 163 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 63. 164 Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 63.

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dd) Duration of the transfer of jurisdiction According to recital 28 on Brussels IIter, this transfer should only apply to the individual case con- 75 cerned that is transferred. If proceedings have been concluded concerning which the request to transfer jurisdiction is made and this has finally been granted, the transfer should not have any effect on future proceedings. Although recital 28 on Brussels IIter has not been anchored in the normative part of the Regulation, it follows from Art. 12 Brussels IIter that jurisdiction only ever applies to the case in question and does not effect a perpetuation of jurisdiction for deciding future cases.

Article 13 Request for transfer of jurisdiction by a court of a Member State not having jurisdiction 1. In exceptional circumstances and without prejudice to Article 9, if a court of a Member State which does not have jurisdiction under this Regulation, but with which the child has a particular connection in accordance with Article 12(4), considers that it is better placed to assess the best interests of the child in the particular case, it may request a transfer of jurisdiction from the court of the Member State of the habitual residence of the child. 2. Within six weeks following receipt of the request pursuant to paragraph 1, the requested court may accept to transfer its jurisdiction, if it considers that due to the specific circumstances of the case such a transfer is in the best interests of the child. Where the requested court accepts to transfer jurisdiction, it shall inform the requesting court without delay. In the absence of such acceptance within the timeframe, the requesting court shall not have jurisdiction. I. General remarks . . . . . . . . . . . . . . . . .

1

II. Preconditions . . . . . . . . . . . . . . . . . . . 1. General remarks . . . . . . . . . . . . . . . . . 2. Request to the court of the Member State where the child is habitually resident . . . . .

2 2

3. Observance of procedural rules . . . . . . . . . 4. Priority of application before Art. 9 Brussels IIter . . . . . . . . . . . . . . . . . . . . . .

7 9

5

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020), p. 13; Blobel, Unzulässigkeit der forum non conveniens-Doktrin im Europäischen Zivilprozessrecht, GPR 2005, 140; Breuer, Gemeinsame elterliche Sorge – Geltung für ausländische Staatsangehörige in Deutschland, FPR 2005, 74; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Burgstaller/Neumayr, Beobachtungen zu Grenzfragen der internationalen Zuständigkeit, in FS Schlosser (2005), p. 119; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Dutta, Europäische Zuständigkeiten mit Kindeswohlvorbehalt, in FS Kropholler (2008), p. 281; Dutta/Schulz, Erste Meilensteine im europäischen Kindschaftsverfahrensrecht: Die Rechtsprechung des Europäischen Gerichtshofs zur Brüssel IIa-Verordnung von C bis Mercredi, ZEuP 2012, 526; Fleige, Die Zuständigkeit für Sorgerechtsentscheidungen und die Rückführung von Kindern nach Entführungen nach Europäischem IZVR (2006); Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die neue EheVO und die deutschen Ausführungsgesetze, IPRax 2005, 293; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Hau, Zur Entwicklung des Internationalen Zivilverfahrensrechts in der EU seit 2004, GPR 2005, 143; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführung (2008); Jayme/Kohler, Europäisches Kollisionsrecht 2004: Territoriale Erweiterung und methodische Rückgriffe, IPRax 2004, 481; Kaller, Europaweite Durchsetzung von Obsorge- und Besuchsrecht, FamZ 2006, 37; Klinkhammer, Internationale Verweisung von Kindschaftsverfahren nach der Brüssel IIa-VO, FamRBInt 2006, 88; M. König, Die Anwendbarkeit des forum non conveniens im deutschen und europäischen Zivilverfahrensrecht (2012); Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union (2006); Looschelders, Die Europäisierung des internationalen Verfahrensrechts über die elterliche Verantwortung, JR 2006, 45; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011, 85; Nademleinsky/Neumayr, Forum conveniens und gerichtliche Zusammenarbeit nach Art. 15 EheVO, iFamZ 2007, 320; Pirrung, Internationale Zuständigkeit in Sorgerechtssa-

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Art. 13 Brussels IIter Member State not having jurisdiction – request for transfer chen nach der Verordnung (EG) 2201/2003, in FS Schlosser (2005), p. 695; Pirrung, Forum (non) conveniens – Art. 15 EuEheVO vor zwei obersten Common law-Gerichten, IPRax 2017, 562; H. Roth, Zur Anfechtbarkeit von Zwischenentscheidungen nach Art. 15 Abs. 1 lit. b EuEheVO, IPRax 2009, 56; Schlosser, Neue Perspektiven der Zusammenarbeit von Gerichten verschiedener EG-Staaten im Kindschaftsrecht, in FS Schwab (2005), p. 1255; Schulz, Das Haager Kindesentführungsübereinkommen und die Brüssel IIa-Verordnung, in FS Kropholler (2008), p. 435; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Tödter, Europäisches Kindschaftsrecht nach der Verordnung (EG) Nr. 2201/2003 (2010).

I. General remarks 1

Art. 13 Brussels IIter regulates the request for transfer of jurisdiction by a court of a Member State not having jurisdiction. Until now Art. 15 of Brussels IIbis contained a similar rule according to which, upon the request of a court of another Member State to which the child had a particular connection, a transfer of jurisdiction could be applied for. This only took place if at least one of the parties consented.

II. Preconditions 1. General remarks 2

The preconditions for a request to transfer jurisdictions are that: – It is made by a court of a Member State not having jurisdiction under Brussels IIter, – The child has a particular connection to this Member State within the meaning of Art. 12(4) Brussels IIter (see the commentary on Art. 12 note 27 [Garber]), – The court is better placed to assess the best interests of the child in that particular case (see the commentary on Art. 12 note 34 [Garber]), – Exceptional circumstances pertain (see the commentary on Art. 12 note 43 [Garber]), – The request is made to the court of the Member State where the child is habitually resident (see Art. 12 note 4 [Garber]) and – The procedural rules of Art. 13(2) Brussels IIter are observed (see Art. 12 note 6 [Garber]).

3

Furthermore, the provision only applies without prejudice to Art. 9 Brussels IIter (see Art. 12 note 8 [Garber]).

4

It is open to question why Art. 13 Brussels IIter does not refer to the application of Art. 12(5) Brussels IIter.1 According to this, a transfer ex officio or upon the request of one of the parties is not possible if an exclusive choice-of-court agreement has been made. It is not materially justifiable why the transfer under Art. 12 Brussels IIter should have preconditions different from those under Art. 13 Brussels IIter. Hence, it will have to be interpreted in such a way that the reservation in Art. 13 Brussels IIter also applies; according to this, a transfer of jurisdiction based on the request of another court in the event of an exclusive choice-of-court agreement is also ruled out.2 2. Request to the court of the Member State where the child is habitually resident

5

According to the express wording, the request may only be made to the court of the Member State where the child is habitually resident. This rule of jurisdiction is too narrow. It would have made more sense for the request to be made to the court that has jurisdiction under the Regulation.3

1 Cf also Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX, p. 13, 41; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/125. 2 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX, p. 13, 41; Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/125. 3 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/125.

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Art. 13 Brussels IIter makes clear that proceedings before the court of the Member State where the child is habitually resident do not need to be pending.4 It is sufficient for the child’s habitual residence to be located in this state.

6

3. Observance of procedural rules The requested court has to decide within six weeks following receipt of the request whether to transfer its jurisdiction or not. Pursuant to Art. 13(2) Brussels IIter, it is to examine whether due to the specific circumstances of the case such a transfer would be in the best interests of the child. It is not bound to the understanding of the requesting court in its examination.

7

Where the requested court accepts the transfer of its jurisdiction, it is to inform the requesting court without delay. In the absence of such acceptance within the timeframe, the requesting court does not have jurisdiction.

8

4. Priority of application before Art. 9 Brussels IIter Art. 13 Brussels IIter applies without prejudice to Art. 9 Brussels IIter. In the case of the wrongful re- 9 moval of a child, this prevents a request from being made by the Member State to which the child has been wrongfully removed or in which it has been wrongfully retained. Under Brussels IIbis a transfer of jurisdiction was also permissible according to the wording of Art. 15 of Brussels IIbis if the court of the first state had jurisdiction under Arts. 10 and 11 of Brussels IIbis. According to the prevailing opinion, a transfer of jurisdiction from the courts of the state having international jurisdiction under Arts. 10 and 11 of Brussels IIbis was only to take place5 in absolutely exceptional cases to ensure that the rationale of Arts. 10 and 11 of Brussels IIbis (to safeguard the jurisdiction of the Member State of origin so as not to privilege the abductor with respect to the law on jurisdiction) was not undermined.6 A transfer of jurisdiction is now only permissible within the scope of Art. 12 Brussels IIter and only if the preconditions stated in the provision have been met. A Member State without jurisdiction may not make a request.

Article 14 Residual jurisdiction Where no court of a Member State has jurisdiction pursuant to Articles 7 to 11, jurisdiction shall be determined, in each Member State, by the laws of that Member State. I. Synopsis . . . . . . . . . . . . . . . . . . . . . .

1

V. Equal treatment of original residents . . . . . 13

II. Comparison with Brussels IIbis . . . . . . . . III. Preconditions for application . . . . . . . . .

5 6

VI. Recognition and enforcement of decisions . . 14 VII. Assessment . . . . . . . . . . . . . . . . . . . . 15

IV. Possibility of a transfer of jurisdiction under Art. 12 Brussels IIter . . . . . . . . . . . . . . . 12 Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020), p. 13; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Coester-Waltjen, Die Berücksichtigung der Kindesinteressen in der

4 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/126. 5 Garber in Gitschthaler, Familienrecht, Art. 15 Brüssel IIa-VO note 19; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, EGBGB Art. 15 EheVO 2003 note 1; even more restrictive Neumayr in Fasching/Konecny, Kommentar V/22, Art. 15 EuEheKindVO note 32; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 15 Brüssel IIa-VO note 17; Schulz in FS Jan Kropholler, p. 435, 444, according to which a transfer of jurisdiction should not be made in the case of an illegal transfer or detention. 6 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/129.

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Art. 14 Brussels IIter Residual jurisdiction neuen EU-Verordnung „Brüssel IIa“, FamRZ 2005, 241; Garber, Internationale Zuständigkeit für Verfahren betreffend die elterliche Verantwortung, in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022), p. 171; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Lukits, Die Obsorge für unbegleitete minderjährige Asylwerber (Teil 1): Internationale Zuständigkeit, EF-Z 2016, 298; Nademleinsky, Haager Kinderschutzübereinkommen in Kraft, EF-Z 2011, 85; Schulz, Das deutsche internationale Kindschaftsrecht, FamRZ 2018, 797.

I. Synopsis 1

Art. 14 Brussels IIter supplements the Regulation’s provisions regulating jurisdiction in which – in certain cases and if certain conditions are met – reference is made to the domestic rights of jurisdiction of the Member States: jurisdiction in each Member State is only determined by the laws of that state on the condition that no Member State has jurisdiction under the Regulation.1 The provision applies only subsidiarily with respect to the Regulation’s own rules on jurisdiction.2 In contrast, within the scope of Brussels Ila domestic jurisdiction rights are completely superseded; recourse may only be taken to domestic law in passing provisional measures pursuant to Art. 35 of Brussels Ila.

2

This rule corresponds in structure to the residual jurisdiction pursuant to Art. 6(1) Brussels IIter3. In proceedings concerning parental responsibility an Art. comparable to Art. 6(2) Brussels IIter is lacking. It follows from this that national jurisdiction law is always to be applied if no Member State has jurisdiction pursuant to the Regulation;4 in contrast to Art. 6(2) Brussels IIter, the provision does not contain any further preconditions for application.

3

The term “laws of that Member State” comprises both the domestic law of the Member State in question and bilateral and multilateral treaties that apply to that state.5 This is expressly stated in recital 29 on Brussels IIbis according to which the term “the laws of that Member State” should include international instruments in force in that Member State.

4

However, recourse to Art. 14 Brussels IIter is only allowed if state treaties are not applicable in precedence.6 Art. 14 Brussels IIter thus does not regulate the relationship of the Regulation to the PCC or the PIC. On the relationship to other state treaties see Arts. 94 et seq. Brussels IIter.

II. Comparison with Brussels IIbis 5

Art. 14 Brussels IIter corresponds to Art. 14 of Brussels IIbis. The reference to Arts. 8 to 13 (now Arts. 7 to 11 Brussels IIter) has been adjusted. Additionally, the term “State” at the end of the provision has been replaced by the term “Member State”; this is not associated with any change in contents.7 1 Cf also OLG Jena, IPRspr 2001/207; AG Ludwigshafen, IPRspr 2012/246. 2 See also Rieck in Schulz/Hauß, Familienrecht3, Art. 14 EheVO 2003 note 1, who refers to the provision as the “catch-all standard behind the catch-all standard”. 3 Dilger in Geimer/Schütze, IRV Art. 14 VO Nr 2201/2003 note 1; Frank, in Gebauer/Wiedmann, Zivilrecht3, Art. 14 EuEheVO note 1; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 14 EheVO 2003 note 1. 4 Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 2; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 14 Brüssel IIa-VO note 2. 5 Fucik in Fasching/Konecny, Kommentar V/22, Art. 14. note 1; Gruber in Heidel/Hüßtege/Mansel/Noack, NKBGB I4, Anhang I zum III. Abschnitt EGBGB Art. 14 EheVO 2003 note 1; Hausmann, Familienrecht2, note F 230; Lukits, EF-Z 2016, 298, 303; Nademleinsky/Neumayr, IFR2 note 8.33; Schäuble in Althammer, Brüssel IIaVO, Art. 14 Brüssel IIa-VO note 1; cf also BGH XII ZB 186/03, NJW 2005, 3424; OGH 2 Ob 19/11z iFamZ (Fucik); different opinion Rieck in Schulz/Hauß, Familienrecht3, Art. 14 EheVO 2003 note 1 and 2, according to which recourse to competences under international law is not consistent with the text of the Brussels IIbis Regulation. 6 Cf also Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 3; Gruber in Heidel/ Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 14 EheVO 2003 note 4; Nademleinsky/Neumayr, IFR2 note 8.33; Weber, in Mayr, EuZVR note 4.163.

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III. Preconditions for application The precondition for application of the provision is that no other Member State of the Regulation 6 has jurisdiction pursuant to Arts. 7 to 11 Brussels IIter8; thus the provision confirms the exclusive character of the autonomous jurisdiction provisions of the Regulation in European law. The court is firstly to check whether any Member State has international jurisdiction pursuant to Arts. 7 to 11 Brussels IIter.9 Only if this question is to be answered in the negative, may recourse be made to the jurisdiction provisions that apply in the law of that state.10

7

International jurisdiction of a Member State may also exist due to the transfer of jurisdiction pursuant to Arts. 12 and 13 Brussels IIter; in this respect the provision is worded too tightly. Until jurisdiction has been transferred pursuant to Arts. 12 and 13 Brussels IIter, a Member State has jurisdiction pursuant to Arts. 7 to 11 Brussels IIter.

8

The provision’s practical significance is small.11 If the child’s habitual residence is located in a Member State, a Member State has jurisdiction in any case pursuant to Art. 7(1), Art. 8, Art. 9 or Art. 11(2) Brussels IIter so that no recourse to national law is allowed.12 It is also possible that jurisdiction exists based on an agreement pursuant to Art. 10 Brussels IIter or on a transfer of jurisdiction pursuant to Arts. 12 and 13 Brussels IIter. If the child’s habitual residence is not ascertainable, simple residence in a Member State establishes jurisdiction according to Art. 11(1) Brussels IIter so that no recourse to national law is allowed in this case either. Thus, the supplementary application of national law only comes into consideration in any case if (1) the child’s habitual residence is located in a third country or (2) no habitual residence is ascertainable and residence is not located in a Member State.13 Even if the child is habitually resident in a third country, the jurisdiction of a Member State may still be based on Art. 10 or Art. 12 Brussels IIter14 so that recourse to national law is not allowed in this case either.

9

The fact that only up until now no proceedings have been brought in a Member State does not suffice 10 for Art. 14 Brussels IIter to be applied.15 Due to the comprehensive regulation of jurisdiction, Art. 14 Brussels IIter is only seldom applied. Recourse to national jurisdiction provisions is possible if the child’s habitual residence in a Member State is lacking, Art. 10 and Art. 12 Brussels IIter do not apply and it is not ascertainable in which state the child is located.16

11

IV. Possibility of a transfer of jurisdiction under Art. 12 Brussels IIter Even if the jurisdiction of a Member State exists based on Art. 14 Brussels IIter in conjunction with national law governing jurisdiction, the court has the option of transferring jurisdiction pursuant to 7 Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/133. 8 Coester-Waltjen, FamRZ 2005, 241, 244; Gottwald in MünchKommFamFG3, Art. 14 Brüssel IIa-VO note 1; Nademleinsky/Neumayr, IFR2 note 8.33; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86. 9 Hausmann, Familienrecht2, note F 229; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 14 Brüssel IIa-VO note 2. 10 Pereira, ERA-Forum 1/2003, p. 137. 11 Fucik in Fasching/Konecny, Kommentar V/22, Art. 14 note 2; Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 5; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86; Weber in Mayr, EuZVR note 4.163; see also Rieck in Schulz/Hauß, Familienrecht3, Art. 14 EheVO 2003 note 1. 12 Hausmann, Familienrecht2, note F 229. 13 Cf. also Fucik in Fasching/Konecny, Kommentar V/22, Art. 14 note 2; Gottwald in MünchKommFamFG3, Art. 14 Brüssel IIa-VO note 2; Hausmann, Familienrecht2, note F 229; BGH, FamRZ 2015, 2147. 14 Cf. Hausmann, Familienrecht2, note F 229. 15 Heiderhoff in MünchKommBGB8, Art. 14 Brüssel IIa-VO note 1. 16 Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 5; Rauscher in Rauscher, EuZPR/EuIPR IV4, Art. 14 Brüssel IIa-VO note 7.

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12

Art. 14 Brussels IIter Residual jurisdiction Art. 12 Brussels IIter;17 according to the wording of Art. 12 Brussels IIter, only the court’s having jurisdiction over the substance of the matter is determinative; whether jurisdiction is based on the Regulation itself or on domestic law is immaterial.

V. Equal treatment of original residents 13

Art. 14 Brussels IIter does not contain an arrangement corresponding to Art. 6(3) Brussels IIter.18 Thus, if the conditions laid down by Art. 14 Brussels IIter are met, a national of a Member State who is habitually resident in another Member State does not have recourse to the national provisions of that state concerning jurisdiction as an original resident does.19 No grounds for differentiating in this way are obvious20 and it is highly questionable in respect of the prohibition on discrimination of Art. 18 of the TFEU which means that Art. 6(3) Brussels IIter should be applied analogously.21

VI. Recognition and enforcement of decisions 14

A decision handed down on the basis of Art. 14 Brussels IIter in conjunction with national law is recognised and enforced in accordance with the provisions of the Regulations.22 The fact that the court based its jurisdiction on national law thus does not prevent recognition and enforcement of the decision; this even applies when it claimed jurisdiction wrongly.

VII. Assessment 15

An autonomous, uniform arrangement of residual jurisdiction in European law that would apply to all Member States would have been sensible and would in any event have been preferable to referring to domestic law on jurisdiction.23 Following Art. 7 Regulation (EU) 2009/4, Art. 11 Regulation (EU) 2012/650, Art. 11 Regulation (EU) 2016/1103, Art. 11 Regulation (EU) 2016/1104, the arrangement could have been replaced by a forum necessitatis. In this way gaps in legal protection could have been avoided.24 In recital 34 on Brussels IIter, the case of a forum necessitatis is given, which has, however, not been anchored in the normative part of the Regulation: Where jurisdiction under this Regulation cannot be exercised due to 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.

17 18 19 20 21 22

23 24

Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 8. Cf. also Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86. Hausmann, Familienrecht2, note F 232. Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 9; Hausmann, Familienrecht2, note F 232; Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86. See also Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/134; Hausmann, Familienrecht2, note F 232 and Pirrung in Staudinger, BGB: Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note C 86, who argue that the differentiation is not convincing. Fucik in Fasching/Konecny, Kommentar V/22, Art. 14 note 4; Garber in Gitschthaler, Internationales Familienrecht Art. 14 Brüssel IIa-VO note 10; Geimer, in Geimer/Schütze, EuZVR4, Art. 14 VO (EG) Nr 2201/2003 note 4; Gruber in Heidel/Hüßtege/Mansel/Noack, NK-BGB I4, Anhang I zum III. Abschnitt EGBGB Art. 14 EheVO 2003 note 1; Rieck in Schulz/Hauß, Familienrecht3, Art. 14 EheVO 2003 note 2; Schäuble in Althammer, Brüssel IIa-VO, Art. 14 Brüssel IIa-VO note 2. Cf. also Antomo in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht IX p. 13, 42; Garber/Lugani, NJW 2022, 2225, 2228. Garber in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 6/142.

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Article 15 Provisional, including protective, measures in urgent cases 1. In urgent cases, even if the court of another Member State has jurisdiction as to the substance of the matter, the courts of a Member State shall have jurisdiction to take provisional, including protective, measures which may be available under the law of that Member State in respect of: (a) a child who is present in that Member State; or (b) property belonging to a child which is located in that Member State. 2. In so far as the protection of the best interests of the child so requires, the court having taken the measures referred to in paragraph 1 of this Article shall, without delay, inform the court or competent authority of the Member State having jurisdiction pursuant to Article 7 or, where appropriate, any court of a Member State exercising jurisdiction under this Regulation as to the substance of the matter, either directly in accordance with Article 86 or through the Central Authorities designated pursuant to Article 76. 3. The measures taken pursuant to paragraph 1 shall cease to apply as soon as 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. Where appropriate, the court may inform the court having taken provisional, including protective, measures, either directly in accordance with Article 86 or through the Central Authorities designated pursuant to Article 76, of its decision. I. Preliminary remarks . . . . . . . . . . . . . . II. III. 1. 2. 3.

Legislative history . . . . . . . . Scope of application of Art. 15 Temporal scope . . . . . . . . . . Geographic scope . . . . . . . . . Material scope . . . . . . . . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

1

. 3 . 7 . 7 . 10 . 12

IV. Art. 15 within the jurisdiction system of the Regulation . . . . . . . . . . . . . . . . . . . . . 15 1. Independent rule or mere reference to the domestic jurisdiction rules? . . . . . . . . . . . 15

2. Communication between the court taking provisional measures and the court with jurisdiction over the merits . . . . . . . . . . . . . . V. Which ‘provisional, including protective measures’ may be requested under Art. 15? . 1. Urgency . . . . . . . . . . . . . . . . . . . . . . 2. Protection of persons or assets within the Member State of the seized court . . . . . . . . 3. Temporal limitation . . . . . . . . . . . . . . .

18 22 24 26 32

Bibliography: Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles IIbis, RCDIP 94 (2005), p. 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; 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), p. 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; Frohn/Sumner, Herziening Brussel IIbis:beschrijving van de nieuwe regeling, NIPR 2020, 391–419; Ibili, Rechtsmacht inzake ouderlijke verantwoordelijkheid volgens de nieuwe EU-verordening Brussel II-ter, EB Tijschrift voor Echtscheidingsrecht 2022, 12–15; van Iterson, Ouderlijke verantwoordelijkheid en kinderbescherm-

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Art. 15 Brussels IIter Provisional, including protective, measures in urgent cases ing (2011); Janzen/Gärtner, Kindschaftsrechtliche Spannungsverhältnisse im Rahmen der EuEheVO – die Entscheidung des EuGH in Sachen Deticˇek, IPRax 2011, 158; Kruger/Samyn, Brussels IIbis: Successes and Suggested Improvements, JPIL 12 (2016), 132; 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 Sorgerechtssachen in anderen Mitgliedstaaten nach der EuEheVO, IPRax 2011, 351; Pretelli, Provisional Measures in Family Law and the Brussels II ter Regulation, Yearbook PIL 2018–2019, 113–148; Sandrini, Provisional Measures and the Best Interests oft he Child in the Field of Parental Responsibility in Bergamini E. and Ragni Ch. (eds.) Fundamental Rights and Best Interests oft he Child in Transnational Families Intersentia 2019, 287–311; Solomon, Brüssel IIa – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Szeibert, Jurisdictional rules and the child’s best interests in the Brussels IIA Regulation and ist Recast in the light of the CRC’s child focused approach, NIPR 2021, 714–728; 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 and Ibili (with Schols), Internationaal privaatrecht. Deel II: Het internationale personen- en familie- en erfrecht, Deventer, Kluwer, 2021, 546–551.

I. Preliminary remarks 1

Provisional, including protective, measures may be of essential importance in the settlement of crossborder 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 IIter Regulation (“the Regulation”), applications 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. 15 of Brussels IIter Regulation. Accordingly, Art. 15 Brussels IIter enables an applicant to seek such measures from that court, even if, under the Regulation, another court has jurisdiction as to the substance of the case. The specific requirements set out by Art. 15 Brussels IIter Regulation, as discussed below, do not apply when the court dealing with the merits of the case orders provisional or protective measures.

II. Legislative history 3

Art. 15 Brussels IIter has been preceded by Art. 20 of the Brussels IIbis Regulation, Art. 12 of the Brussels II Regulation and Art. 12 Brussels II Convention. Despite the further elaboration of Art. 15 Brussels IIter compared to its precedents, the interim forum for cases on matrimonial matters and parental responsibility maintains a number of common features since its inception. Case law and doctrinal writings on the three earlier provisions are therefore, in principle, relevant for the interpretation of Art. 15 Brussels IIter. In particular, the Explanatory Report to the Brussels II Convention remains an authoritative source for the interpretation of the current Regulation.2

1 Cf. the formulation of Recital 30 of the Regulation, which reflects the swung of the pendulum as to which court has jurisdiction for interim relief. While previous Regulations set up a residual jurisdiction for the interim forum (“nothing in this Regulation shall prevent”), the formulation of Article 15 Brussels IIter seems to suggest that, under the Regulation, there is an alternative forum for situations where interim relief is sought elsewhere than where the case on the merits is decided. With respect to the Brussels IIbis 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. 2 Unlike its predecessors, there is no explicit reference in the Regulation’s recitals to the Report Borrás. However, it is anticipated that this Explanatory Report will remain a persuasive source for EU courts in their interpretation of the current Regulation. For references in caselaw of Art. 15’s precursors, see ECJ, Purrucker I (Case C-256/09), (2010) ECR I-07353, paras. 84 et seq.

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In June 2016, the European Commission published the Proposal for the Brussels IIter (Proposal for a 4 recast).3 The objective of the recast was 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, the European Commission proposal introduced the idea of judicial communication and cooperation between the jurisdiction dealing with the substance of the matter and the jurisdiction that taking provisional, including protective, measures. These proposals led to a new paragraph 2 and a new subparagraph 3.2.

5

In addition, the linkages to the HCCH international child protection schemes are relevant as well. 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. 15 Brussels IIter. As a matter of fact, Art. 15 of the Regulation bears a striking similarity to Art. 11 of the 1996 Hague Child Protection Convention as to their function and operation within their respective instruments: both are designed to be a proper rule of jurisdiction, while the EU predecessors (Art. 20 Brussels IIbis Regulation and earlier corresponding provisions) preferred an accessory formulation detached from the Regulation’s jurisdictional provisions. There is, on the other hand, a significant difference between the EU and the HCCH rule. The reach of measures granted under Art. 15 Brussels IIter is meant to be territorially limited, while the recognition and enforcement of (provisional) measures in other Contracting States under the Convention is possible. As further developed below, this territorial limitation is an important factor to take into consideration in assessing the functioning of Art. 15 Brussels IIter.

6

III. Scope of application of Art. 15 1. Temporal scope Application for provisional, including protective, measures may be made on the basis of Art. 15 Brussels IIter, 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. 15 Brussels IIter.5

7

On the other hand, the measures cease to have effect when final measures are adopted by the court 8 having substantive jurisdiction as to the substance of the case (Art. 15(3) Brussels IIter). A fortiori, a court is no longer empowered to grant provisional measures pursuant to Art. 15 Brussels IIter 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. 15 Brussels IIter ranges from 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

3 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. However, the Brussels IIbis Regulation is no longer applicable in the United Kingdom after BREXIT. 4 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. 5 Rauscher, 238. 6 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

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Art. 15 Brussels IIter Provisional, including protective, measures in urgent cases 9

The ECJ clarified in Purrucker II that there is no overlap between an action brought to obtain 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. 15(1) Brussels IIter (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 2. Geographic scope

10

The wording of Art. 15(1) Brussels IIter explicitly refers to cases where the Regulation applies to the substance of the matter. Accordingly, it must be considered whether the application of Art. 15 Brussels IIter is subject to the condition that the case on the merits must fall within the geographical scope of the Regulation.8 That is, is it possible for a Member State court to take provisional measures under Art. 15 Brussels IIter when the substance of the case must be decided by the courts of a nonEU State, or Denmark? In the affirmative, subsequent questions may arise as to the legal basis for the articulation of provisional and definitive measures.

11

It is submitted that, in the absence of any indication to the contrary,9 Art. 15 Brussels IIter 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.

7

8 9

10 11

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 Brussels IIbis 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 the provisional forum means that its jurisdiction cannot be established for the purposes of Art. 17, 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 note 9. To date, the ECJ has dealt with two cases concerning the Brussels IIbis Regulation with a close link with a non-EU State: in 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”. In CC v. VO, (Case C-572/21) ECLI:EU:C:2022:562, the ECJ deciced that the Brussels IIbis Regulation gave way to the application of the 1996 Child Protection Convention when, in a case concerning the application of the Regulation’s main jurisdiction rule on parental responsibility, the child’s habitual residence had changed, during the proceedigns, from a EU Member State to a non-EU Member State. In line with these judgments, it can 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 53 Contracting States, see the Convention’s status table, available at www.hcch.net – last updated on 15 August 2022).

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3. Material scope It is debated in legal writing whether Art. 15 Brussels IIter (and its predecessors) only authorises the 12 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 Borrás Report 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. 15 Brussels IIter should not apply beyond the general 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 difficult 13 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 and now Brussels IIter prevails.19 Consequently, Art. 15 Brussels IIter cannot be relied on to bring other connected provisional measures, requested in the framework of the same proceedings, within the material scope of the Regulation.20

12 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 Brussels IIbis. See Purrucker I (Case C-256/09), (2010) ECR I-07353 para. 85. 13 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). 14 W. v. H. (Case 25/81), (1982) ECR 1189, 1204. 15 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. 16 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. 17 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. 18 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. 19 Dutta, Cross-Border Protection Measures in the European Union, JPIL 12 (2016), p. 180–181. See also Recital 11 of the Protection Measures Regulation. 20 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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Art. 15 Brussels IIter Provisional, including protective, measures in urgent cases

IV. Art. 15 within the jurisdiction system of the Regulation 1. Independent rule or mere reference to the domestic jurisdiction rules? 15

The reference in Art. 15 (1) Brussels IIter to measures “which may be available under the law of that Member State” (emphasis added) is meant to confirm the autonomous definition of those measures under the Regulation. In line with the consolidation of Art. 15 Brussels IIter as a proper jurisdiction rule, Art. 15 itself creates jurisdiction and is not, as often stated with regard to its predecessors, a mere reference to the jurisdictional rules of the lex fori.

16

A-G Bot referred to this issue in his Opinion on the Deticˇek case with regard to Art. 20 Brussels IIbis. He considered 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 Brussels IIbis as “an exception to the system of jurisdiction laid down by the Regulation”.21

17

With regard to Art. 15 Brussels IIter, the conditional formulation (“may be available”) reinforces the impression that this article is more than a mere renvoi to the respective national heads of jurisdiction on provisional measures, as Art. 15 itself contains its own applicability criteria. The relevant test is hence whether the measures available under the law of the requested Member State fall within the autonomous definition of “provisional, including protective measures” of the Regulation. 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. 15 Brussels IIter, rather other specific requirements have to be satisfied.22 First, measures under Art. 15 Brussels IIter 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 (see, below, under V, note 22 et seq.). 2. Communication between the court taking provisional measures and the court with jurisdiction over the merits

18

In the case of A, the ECJ was asked whether the provisional nature of measures taken on the basis of Art. 20 Brussels IIbis 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.

19

Interestingly, the ECJ inferred an implicit duty of information for the seized court from the interpretation of Art. 20 Brussels IIbis. 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”.23 In Purrucker I, the ECJ reiterated the importance of transparent information about the grounds on which a provisional measure has been adopted.24

20

The ECJ’s position underscores that mutual co-operation and respect between 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 Regulation25 but also judicial engage21 See the Opinion of A-G Bot, (2009) ECR I-12196 paras. 82–85 and Deticˇek, (Case C-403/09 PPU), (2009) ECR I-12193 para. 38. 22 Deticˇek (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. 23 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. 24 Purrucker I (Case C-265/09), (2010) ECR I-07353, para. 75. 25 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.

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ment despite complex legal, administrative and linguistic barriers. Implementing measures within the judiciary of the Member States and adequate informative tools for the application of the Regulation (e.g., the European Judicial Atlas, the European Judicial Network, frequent judicial trainings and an updated Guide for the Application of the Regulation) should more than ever reveal their value. In line with the above, Art. 15(2) Brussels IIter Regulation puts forth an additional and novel provi- 21 sion: the authority having taken provisional, including protective, measures in urgent cases 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. The formulation of this duty of cooperation fluctuates between, on the one hand, a sense of urgency (“without delay”) and, on the other hand, the proviso that such cooperation ought to serve the child’s best interests. It is not clear when this duty of judicial communication in respect of the procedural safeguards set out by Art. 86 can be detrimental to the situation of the child: it would rather appear that court-to-court exchange of information between involved courts contributes to a harmonious and swift outcome in any event.

V. Which ‘provisional, including protective measures’ may be requested under Art. 15? Art. 15 Brussels IIter refers to provisional, including protective measures “as may be available under 22 the 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. 15. The ECJ has indeed taken care to emphasise that there are specific limits imposed by the drafting of the corresponding provision in the Brussels IIbis (Art. 20 (1)) itself.26 It follows that certain provisional, including protective measures “available under the law of (a) Member State”, may exceed the Regulation framework for provisional jurisdiction. What then are the limits set out by Art. 15 Brussels IIter then? First, this provision may only be invoked 23 in urgent cases. Secondly, provisional, including protective measures within the meaning of Art. 15(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 Art. 15 establishes the urgency requirement as a sine qua non condition for its application.27 In that respect, the Brussels IIter Regulation follows the wording of other EU and international instruments applicable to international family and child protection disputes, including the HCCH Conventions.

24

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.28 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.29 In the first preliminary ruling on the question,

25

26 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. 27 See, e.g., Krajsky´ soud v. Cˇesky´ch Budeˇjovicích file No 5 Co 32/2009 of 14 January 2014; Tribunale di Torino, 16 January 2015. 28 Vandekerckhove (fn. 3), p. 119, 134. 29 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: ‘s Hertogenbosch, 26 October 2017, cited by Vonken (urgency admitted); Rb. Groningen, NIPR 2008 Nr. 25 (urgency admitted); Rb. Maastricht, NIPR 2008, Nr. 32

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Art. 15 Brussels IIter Provisional, including protective, measures in urgent cases 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”.30 In Deticˇek, 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.31 2. Protection of persons or assets within the Member State of the seized court 26

Secondly, Art. 15 can only be relied upon for the protection of persons or assets within the Member State of the seized court. This requirement is two-fold.

27

On the one hand, a protective finality of the requested measures is needed. In the context of 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. 15 Brussels IIter. 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 but fall within the scope of the Matrimonial Property Regulation. The updating of the civil-status records with the divorce claim may also be available under Art. 15 Brussels IIter.32

28

In the context of measures in relation to parental responsibility, the range of potential 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 cross-border disputes by means of Art. 15 Brussels IIter (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.33 Furthermore, provisional arrangements on care, custody and rights of access with regard to children, including in cases of child abduction, are available under Art. 15 Brussels IIter. As noted by the ECJ in Deticek,34 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. 15 should be broadly understood.

29

In principle, a strict condition of territoriality applies. Art. 15 authorises courts to take measures with regards to persons or assets that are present in the Member State of the court seized.35 The cross-broder circulation of provisional, including protective, measures ordered pursuant to Art. 15 is confined, under Brussels IIter, to measures taken in international child abduction cases and aimed at protecting

30 31 32 33 34 35

(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. Deticˇek (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. 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. Deticˇek (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 Deticˇek, 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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the child from the grave risk referred to in point (b) of Art. 13(1) of the 1980 Hague Convention (see Art. 27(5) Brussels IIter). From a practical point of view, the condition requiring provisional measures to be filed at the court 30 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. It is conceivable that the individuals or assets subject to the provisional measures are relocated to another State after the taking of the measures. This relocation should have no impact on the applicability of Art. 15 Brussels IIter. 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 that the rules in Chapter IV of the Regulation are not applicable to the measures ordered on the basis of Art. 15.36

31

3. Temporal limitation Art. 15 (2) provides that the taken measures are of temporary nature: they cease to apply when the 32 court vested with jurisdiction under the Regulation Brussels IIter 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 Brussels IIbis,37 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.38 It is for the court seized on the merits to inform the court having taken provisional, including protective, measures that it has issued a decision and, as such, the temporary measures cease to have effect (Art. 15(3) in fine). The temporal limitation imposed by Art. 15(2) constitutes an autonomous requirement under the 33 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.39 When, however, the national court takes such measures on the basis of Art. 15 Brussels IIter, 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. The effective length of time for which those measures remain in force depends on further action taken on the merits.

36 See Art. 35(2)(b) Brussels IIter and, with regard to the caselaw on Brussels IIbis, Purrucker I (Case C-265/09), (2010) ECR I-07353, paras. 83 and 87. 37 A, (Case C-523/07), (2009) ECR I-2805 para. 65. 38 A-G Kokott, (2009) ECR I-2808 paras. 61–64. 39 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 [email protected], 2005/1, 36 and Trib. civ. Bruxelles [email protected], 2005/1, 33.

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Article 16 Incidental questions 1. If the outcome of proceedings in a matter not falling within the scope of this Regulation before a court of a Member State depends on the determination of an incidental question relating to parental responsibility, a court in that Member State may determine that question for the purposes of those proceedings even if that Member State does not have jurisdiction under this Regulation. 2. The determination of an incidental question pursuant to paragraph 1 shall produce effects only in the proceedings for which that determination was made. 3. If the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State may decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation. 4. Article 15(2) shall apply accordingly. I. Ratio legis . . . . . . . . . . . . . . . . . . . . .

1

II. Scope of Art. 16 . . . . . . . . . . . . . . . . . 8 1. Substantive scope: parental responsibility, not divorce . . . . . . . . . . . . . . . . . . . . . 8 2. Incidental question . . . . . . . . . . . . . . . . 11 III. Incidental question of parental responsibility, (1) . . . . . . . . . . . . . . . . . . . . . . . 14 IV. Limitation of res iudicata effects with regard to the incidental question to the concrete proceedings, (2) . . . . . . . . . . . . 19

V. Limited extension of jurisdiction to certain incidental questions in succession proceedings, (3) . . . . . . . . . . . . . . . . . . . . . . VI. According application of Art. 15 (2), (4) . . . 1. Duty to inform . . . . . . . . . . . . . . . . . . 2. Recipients of information . . . . . . . . . . . . 3. Means and modalities . . . . . . . . . . . . . . 4. Duty, not obligation . . . . . . . . . . . . . . .

24 34 34 36 38 39

I. Ratio legis 1

Art. 16 is a genuine novelty,1 at least formally and in its codificatory ambition. It did not have any predecessors or forerunners either in the Brussels II or in the Brussels IIbis Regulations. Even in the Brussels I/Ibis system one would search in vain for a pendant or a rule expressing like ideas. In fact, Art. 16 constitutes the first occasion on which incidental questions are addressed in an explicit manner, within the entire system of European international procedural law generated by the EU itself.2 In this regard, Art. 16 is a first and a pioneer. Incidental questions (preliminary questions, questions préalables, Vorfragen) are a notorious topic which has puzzled both primarily choice of law, but also international procedural law for almost 90 years now3 after Wilhelm Wengler had ‘detected’ the phenomen1 Brosch, GPR 2020, 179, 183; Frohn/Sumner, NIPR 2020, 391, 398. 2 This proviso is made in order to exclude Art. 15 Maintenance Regulation iuncto Art. 1 (2) Hague Maintenance Protocol and Arts. 2 (3); 10 2005 Hague Choice of Court Convention (OJ EU 2009 L 133/3), since these two Hague Conventions both form integral parts of EU law by virtue of Art. 216 (2) TFEU, yet have not been generated by the EU alone in an autonomously European manner. 3 See only Bernitt, Die Anknüpfung von Vorfragen im europäischen Kollisionsrecht (2010); Corneloup, Trav. Com. fr. dr. int. pr. 2010–2012, 189; Dorenberg, Hinkende Rechtsverhältnisse im internationalen Familienrecht (1968); Ficker in FS OLG Zweibrücken (1969), p. 69; Füllemann-Kuhn, Die Vorfrage im Internationalen Privatrecht (Zürich 1977); Gössl, ZfRV 2011, 65; Gössl, (2012) 8 JPrIL 63; Hoffmeyer, Das internationalprivatrechtliche Vorfragenproblem (1957); Henrich in Liber amicorum Klaus Schurig (2012), p. 63; Lagarde, RCDIP 49 (1960), 459; Mäsch, IPRax 1997, 442; Mäsch in Leible/Unberath (Hrsg.), Brauchen wir eine Rom 0-Verordnung (2013), p. 201; Mäsch in Leible (ed.), General Principles of European Private International Law (2016), p. 101; Mankowski in FS Rolf Herber (1999), p. 147; Mansel in FS Jan Kropholler (2008), p. 353; Neumayer in FS Bernhard Aubin (1979), p. 93; Ollick, Das kollisionsrechtliche Vorfragenproblem und die Bedeutung des ordre public unter besonderer Berücksichtigung der deutschen Rechtsprechung zum internationalen Familienrecht (Diss. Köln 1992); Samtleben, RabelsZ 52 (1988), 466; Schurig in FS Gerhard Kegel zum 75. Geb. (1987), p. 549; Schuz,

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on in one of the most famous and influential writings ever in the arena of private international law.4 The topic is regarded as a minefield. Thus, Art. 16 is not only novel, but also bold and brave.5 Its drafters have confined themselves to a jurisdiction-specific and thus partial solution, though. On closer inspection, Art. 16 addresses two different instances of mechanisms to concentrate competence, the first in (1) and (2), the second in (3).6 The European legislator ventures at a basic explanation and an illustration by way of an example for Art. 16 in Recitals (32) and (33):7

2

(32) If the outcome of proceedings before a court of a Member State not having jurisdiction under this Regulation depends on the determination of an incidental question falling within the scope of this Regulation, the courts of that Member State should not be prevented by this Regulation from determining that question. Therefore, if the object of the proceedings is, for instance, a succession dispute in which the child is involved and a guardian ad litem needs to be appointed to represent the child in those proceedings, the Member State having jurisdiction for the succession dispute should be allowed to appoint the guardian for the pending proceedings, regardless of whether it has jurisdiction for matters of parental responsibility under this Regulation. Any such determination should only produce effects in the proceedings for which it was made. (33) If the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State should be able to decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation. The term ‘legal act’ should include, for example, the acceptance or rejection of inheritance or an agreement between the parties on the sharing-out or the distribution of the estate. This sheds only quite some light on the understanding of Art. 16. The example given to illustrate Art. 16 relates to a case where the main question does not fall under the Brussels IIter Regulation whereas the incidental question would be governed by the Brussels IIter Regulation if seen in isolation. In turn and conversely, Recital (32) does not cover cases where the main question falls under the Brussels IIter Regulation whereas the incidental question would not be governed by the Brussels IIter Regulation. Hence, Art. 16 solely expresses the Brussels IIter Regulation ceding the prerogative for issues which it would govern if they were main questions, in the event that those issues happen to appear only as incidental questions in the concrete proceedings. The Brussels IIter Regulation does not retain a firm grip on those issues and decides to cede them to another regime. Insofar, Art. 16 could have been written in into the jurisdictional regimes of other Regulations as extending them to jurisdiction as regards incidental questions of divorce or parental care.

3

However, a fortiori Art. 16 should also be applied where the Brussels IIter Regulation confers jurisdiction for the main cause (be it in divorce proceedings or be it in matters of parental care). The incidental question at stake could be, for instance, the current existence of a marriage between the child’s parents. The conclusio a fortiori is indicated in the last clause of Art. 16 (“even if that Member State does not have jurisdiction under this Regulation”), featuring an “even if ”.

4

The Brussels IIter Regulation addresses only procedural topics, first and foremost jurisdiction and enforcement plus cooperation between certain public authorities. It does not contain conflict rules and does not erect a private international law regime in the narrower sense, i.e. a system of choice of laws. Plus, Art. 16 is deliberately placed in Chapter II, devoted to jurisdiction, and jurisdiction alone.

5

4 5 6 7

A Modern Approach to the Incidental Question (1997); Stoll in FS Kurt Lipstein (1980), p. 259; Sturm, StAZ 1990, 350; T. S. Schmidt, Rec. des Cours 233 (1992 II), 305; Wengler, RCDIP 55 (1966), 165; Wengler, NJW 1981, 2617; Wengler, IntEncyclCompL III/7 (1987); Wengler, IPRax 1991, 105; Wienke, Zur Anknüpfung der Vorfrage bei internationalprivatrechtlichen Staatsverträgen (1977); Winkler v. Mohrenfels, RabelsZ 51 (1987), 20. Wengler, RabelsZ 8 (1934), 148. Different assessment by Garber in König/Mayr (Hrsg.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 131: Art. 17 Proposal (now Art. 16) mirrors only a common opinion which would not have needed express codification. Brosch, GPR 2020, 179, 183. Frohn/Sumner, NIPR 2020, 391, 398.

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Art. 16 Brussels IIter Incidental questions It does note even extend to recogniton, the second general topic of the Brussels IIter Regulation. This is a clear and unmistakeable sign not to be overlooked. Accordingly, and again a fortiori, Art. 16 should not be instrumentalised as ground for drawing conclusions how European PIL generally approaches incidental questions in conflict of laws. Art. 16 forms part only of the other division of private international law (the latter term understood in the wider Romanic, not in the narrower Germanic sense) and not of conflict of laws. Art. 16 is pragmatic and in some sense experimental. It does not carry wider reaching and, even less, general inferences. 6

As to the general approach pursued, Art. 16 does not stage a complete revolution but rather evolutionarily builds on the previously prevailing line of argument:8 Jurisdiction for incidental questions does not determine jurisdiction for the main cause. In principle, jurisdiction for incidental questions follows the jurisdictional rules which would govern if the current incidental question was main cause in its own right. In principle, jurisdiction for the main cause does not extend to jurisdiction for the incidental question. Then one reaches the crucial point where Art. 16 partially changes the course of things as the legislator can using its authority: Art. 16 confers jurisdiction for deciding the incidental question on the court having jurisdiction over the main cause.9 Art. 16 concentrates matters and avoids any necessity for a second set of proceedings to be initiated before a different court that would have jurisdiction to hear the incidental question in isolation. This saves time and money. A summarising way to circumscribe Art. 16’s modus operandi could be the assertion that Art. 16 confers jurisdiction for incidental questions accessory to jurisdiction for the main cause. Art. 16 appears to be an attempt at pragmatism addressing perceived practical needs. It might get some applause from practitioners.

7

In the reverse direction, jurisdiction for the incidental question conferred upon the court sitting in the main cause is not exclusive and does not bar such isolated proceedings from being instituted10 if either party is willing to travel down that alternative avenue. Art. 30 (5)11 can be regarded as a sister rule in the same vein as Art. 16, since it explicitly states that where the recognition of a decision is raised as an incidental question before a court of a Member State, that court may determine that issue. This clearly vests kind of jurisdiction in the court sitting in the main cause.

II. Scope of Art. 16 1. Substantive scope: parental responsibility, not divorce 8

It should not escape attention that Art. 16 has a restricted substantive scope: It is restricted to incidental questions relating to parental responsibility and does not apply to divorces. The wording of (1) and (3) is unambiguously clear in this regard. (1) expressly features “incidental questions relating to parental responsibility”12, and (3) likewise features “legal act undertaken or to be undertaken on behalf of a child”13. As to its systematic context, Art. 16 has been inserted on purpose in Section 2 (“Parental Responsibility”) of Chapter II.14 Both Recitals (32) and (33) refer to child care and do not mention divorces with a single word, either.

9

The reasons for this exclusion of divorce as a regulated incidental question might find a twofold explanation. First, as regards the incidental question whether the marriage to be divorced has ever existed and has been valid initially: The Regulations in the field of European international family law generally shy away from touching upon the issues as to what constitutes a ‘marriage’.15 Recitals (10) subpara. 3 Rome III Regulation; (21) Matrimonial Property Regulation do this expressly. 8 Cf. also Garber in König/Mayr (Hrsg.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 131. 9 Garber in König/Mayr (Hrsg.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 131 does not emphasise this. 10 Garber in König/Mayr (Hrsg.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 131. 11 Plus to the same avail Art. 36 (3) Brussels Ibis Regulation. 12 Emphasis added. 13 Emphasis added. 14 Cf. Frohn/Sumner, NIPR 2020, 391, 398. 15 In depth Thurm, Der Ehebegriff im europäischen Kollisions- und Verfahrensrecht (2020).

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Second, as regards the incidental question whether the marriage at stake has already been divorced: 10 Once a divorce decree has been issued the effects of such decree are an issue for recognition following the rules of the BrusselsIIter Regulation on recognition, yet only then. Either a couple are divorced, or they are not. The watershed is whether a divorce decree has already been issued or not. If only divorce proceedings are pending the court charged with the main cause to which a possible divorce would be an incidental question may stay the proceedings in the main case according to its national procedural law in favour of waiting for the outcome of those pending divorce proceedings. It does not have jurisdiction to decide upon the divorce issue, and (1) does not alter that. Mutatis mutandis the same applies as regards the incidental question whether the marriage at stake has already been dissolved judicially. 2. Incidental question ‘Incidental question’, the central notion of Art. 16, does not get a definition in Art. 16 itself. It is not 11 defined anywhere else in the Brussels IIter Regulation, either, not even in the catalogue of definitions contained in Art. 2 (2). The latter cannot come as a surprise since incidental questions as an isolated issue take centerstage only in Art. 16 of all rules of the Brussels IIter Regulation. If there was a proper place of a definition, it should have been in Art. 16 itself. It may be added that ‘incidental question’ does not get an express definition anywhere else in the entire empire of European private international law (in the wider sense, including international procedural law). Hence, no helping hand is extended from anywhere out. The traditional definition of ‘incidental question’ is rather short: An incidental question is a prejudi- 12 cial legal relationship which forms a prerequisite for a rule regulating the main question. However, the definition was developed for the arena of conflict of laws, how time-honoured it might have become over the decades. Theoretically, it could call for some adaptation in the field of jurisdiction. In essence this is not the case, though. Prejudicial legal relationships are not alien to the field of jurisdiction, either, but a well-known notion.16 The definition of ‘incidental question’ for the purposes of Art. 16 thus can be phrased as follows: An incidental question is a prejudicial legal relationship which forms a prerequisite for a jurisdiction rule regulating the main question, the latter stemming e.g. from succession law. It is for the lex fori to ascertain as to whether deciding an incidental question requires at least formally separate proceedings, perhaps even before another court and following different procedural rules, or whether combined proceedings for the main and the incidental questions can be accomplished.17

13

III. Incidental question of parental responsibility, (1) By virtue of (1), if the outcome of proceedings in a matter not falling within the scope of this Regula- 14 tion before a court of a Member State depends on the determination of an incidental question relating to parental responsibility, a court in that Member State may determine that question for the purposes of those proceedings even if that Member State does not have jurisdiction under this Regulation. ‘Parental responsibility’ carries the meaning as attributed to it by the definition in Art. 2 (2) pt. (7): all rights and duties relating to the person or the property of a child which are given to a natural or legal person by a decision, by operation of law or by an agreement having legal effect, including rights of custody and rights of access. The limitation to incidental questions relating to parental responsibility excludes incidental questions relating to matrimonial matters.

15

Furthermore, it excludes incidental questions relating to other mattes not falling under the Brussels IIter Regulation. This, however, should not deprive the court of the competence to decide grounds of divorce which Recital (9) 2nd sentence keeps outside the Brussels IIter Regulation if such competence is

16

16 See in particular Volmer, ZEV 2014, 129. 17 Brosch, GPR 2020, 179, 183.

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Art. 16 Brussels IIter Incidental questions vested in the court from sources outside the Brussels IIter Regulation. Art. 16 only adds competence but does not e contrario destroy competence already existing, from whichever source. 17

The legislative background triggering (1) consists of two instances which occurred mainy in Aceesion States of 2004, 2007 and 2013: The first instance relates to the appointnment of special representatives of the child for the purposes of certain proceedings, i.e. functionally of procedural curators. In many Member States this issue enjoys a procedural characterisation and would thus be subject to the lex fori of the respective (main) proceedings. This route has, however, been barred and blocked18 by the CJEU’s dictum in Matousˇkova that such matters have to be characterised as substantive and are thus subject to the jurisdictional regime of the Brussels IIbis Regulation.19 In turn, the courts in the State where the child is habitually resident, would be called upon to appoint such procedural curator, yet would often not feel competent to so for the purposes of main proceedings abroad. (1) aims at overcoming this impasse.20 The other instance having triggered (1) is specifically addressed in (3).21

18

The circle of potential main questions is not limited to any specific areas of the law. Main questions might come from succession law, as indicated by (3) and by Recital (32),22 but they might also appear, for instance, in property law or contract law. Just imagine the case that a seller sues his buyer, who happens to be a minor and invokes the invalidity of the contract due to some parental assent missing. Or imagine a lawsuit concerning property the derivative acquisition of which by one of the parties, a minor, depends on some parental assent. Or imagine a controversy about a minor’s membership in a company which hinges on some parental assent. The validity of a minor’s marriage might be questioned if it allegedly lacks any necessary parental assent, and his issue might become virulent e.g. in divorce proceedings.

IV. Limitation of res iudicata effects with regard to the incidental question to the concrete proceedings, (2) 19

According to (2), the determination of an incidental question pursuant to (1) shall produce effects only in the proceedings for which that determination was made. This is a welcome clarification, namely the limitation of any res iudicata effects with regard to the incidental question. The question which has presented itself as an incidental question only in the concrete case, is not decided in a binding fashion once, forever and for all purposes. (2) decrees that it is only decided for the purposes of the concrete case.

20

(2) applies regardless of whether the incidental question is only a side issue or the true, the material core of the concrete case. Hence, even where the formally incidental question is the only material issue of the lawsuit, structure prevails over substance.

21

(2) curbs any rules of the domestic procedural law of the Member State of origin extending res iudiata to inciental questions in general, like equivalents of issue estoppel do. It can be safely surmised that this limitation constituting to a certain extent an ingression into an erstwhile domain of domestic law, owes its existence to interventions by Member States whose domestic procedural law does not grant res iudicata effects to decisions as far as they relate to incidental questions.

22

The point which (2) makes, becomes evident if one investigates into the main field of application which (2) has, namely incidental questions concerning status. In essence, in respect of jurisdiction (2) establishes a relative status of the respective person as regards the main issue, but not an absolute status as regards all issues. She who is mother to the child at stake for the purposes of jurisdiction as regards parental responsibility, must not necessarily be mother to the same child or other purposes. 18 A. Schulz, FamRZ 2020, 1141, 1143. 19 Proceedings brought by Marie Matousˇková (Case C-404/14), ECLI:EU:C:2015:653 paras. 27–38; Proceedings brought by Alessandro Saponaro and Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265 paras. 16–19. To the same avail A-G Kokott, Opinion of 25 June 2015 in Case C-404/14, ECLI:EU:C:2015:428 paras. 40–50; A-G Tanchev, Opinion of 6 December 2017 in Case C-565/16, ECLI:EU:C:2017:942 paras. 16–18. 20 A. Schulz, FamRZ 2020, 1141, 1143. 21 A. Schulz, FamRZ 2020, 1141, 1143. 22 Frohn/Sumner, NIPR 2020, 391, 398.

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A direct or indirect impact of the CJEU’s decision in Gothaer on res iudicata effects of procedural decisions under the Brussels I Regulation23 on (2) is not documented. Gothaer incised a predominantly critical reception24 and generated only few judicial following, rather reluctantly and on grounds of authority.25

23

V. Limited extension of jurisdiction to certain incidental questions in succession proceedings, (3) Pursuant to (3), if the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State may decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation.

24

(3) is a jurisdiction rule extending jurisdiction as basically granted in succession proceedings by virtue of Arts. 4–11 Succession Regulation to a very specific incidental question. To a certain extent, it might be seen as an exception to Art. 1 (4) (f).26

25

As to substance, (3) is a remarkable answer to, if not shift away from, the CJEU’s jurisprudence:27 The CJEU had twice characterised judicial permission or approval of legal acts undertaken by or on behalf of a child not as incidental questions, but had opened independent jurisdiction under the Brussels IIbis Regulation.28 In order to orchestrate a concentration of jurisdiction under the standards of the Succession Regulation, the parties had to resort to choice of court agreements under Art. 12 (3) Brussels IIter Regulation.29 (3) aims at rendering this complicated and somewhat artificial construction obsolete.30 Jurisdiction and concretation ex lege replace the auxiliary construction based on party autonomy.31 This favourably destroys any veto right by parties opposed to such concentration.

26

Systematically, the proper and optimal place for the content of (3) would be in the Succession Regulation. However, to implement this would have entailed a formal amendment of the Succession Regulation and would have made the title of the Brussels IIter Regulation longer since an ‘and amending Regulation (EU) no 650/2012 of the European Parliament and of the Council’ should have been added to the present title. Presumably in order to avoid this or the necessity of renumbering the Succession Regulation if another article was introduced into it, (3) is found in Art. 16. Yet the chosen placement in the Brussels IIter Regulation in turn raises the severe danger that courts and counsel in succession proceedings might overlook or disregard (3), at least in the earlier days of its existence. In substance,

27

23 Gothaer Allgemeine Versicherung AG v. Samskip GmbH (Case C-456/11), ECLI:EU:C:2012:719 paras. 40–41 with reference to P& O European Ferries (Vizcaya) SA and Disputaicón Foral de Vizcaya v. Commission (joined Cases C-442/03P and C-471/03P), ECLI:EU:C:2006:356; Commission v. Luxemburg (Case C-526/08), ECLI: EU:C:2010:379; ThyssenKrupp Nirosta GmbH v. Commission (Case C-352/09), ECLI:EU:C:2011:191; Artedogan GmbH v. Commission (Case C-221/10P), ECLI:EU:C:2012:216. 24 E.g. Bach, EuZW 2013, 56; Hau, LMK 2013, 341521; Nioche, RCDIP 102 (2013), 692; Roth, IPRax 2014, 136; Hartenstein, RdTW 2013, 267; Mendiola/Pineau, REDI 2013–1, 219; Henke, Dir. comm. int. 27 (2013), 1085; Geimer in FS Peter Gottwald (2014), p. 175; Althammer/Tolani, ZZPInt 19 (2014), 227; Gebauer in FS Reinhold Geimer zum 80. Geb. (2017), p. 103; Schack in FS Reinhold Geimer zum 80. Geb. (2017), p. 611; Koops, IPRax 2018, 11. 25 Paradigmatically BGH, ZIP 2019, 391 para. 9. 26 Cf. Proceedings brought by Alessandro Saponaro and Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018: 265 para. 16; A-G Kokott, Opinion of 25 June 2015 in Case C-404/14, ECLI:EU:C:2015:428 para. 45. 27 Brosch, GPR 2020, 179, 183. 28 Proceedings brought by Marie Matousˇková (Case C-404/14), ECLI:EU:C:2015:653 paras. 27–38; Proceedings brought by Alessandro Saponaro and Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265 paras. 16–19. To the same avail A-G Kokott, Opinion of 25 June 2015 in Case C-404/14, ECLI:EU:C:2015:428 paras. 40–50; A-G Tanchev, Opinion of 6 December 2017 in Case C-565/16, ECLI:EU:C:2017:942 paras. 16–18. 29 Proceedings brought by Marie Matousˇková (Case C-404/14), ECLI:EU:C:2015:653 para. 37; Proceedings brought by Alessandro Saponaro and Kalliopi-Chloi Xylina (Case C-565/16), ECLI:EU:C:2018:265 paras. 20–40; A-G Tanchev, Opinion of 6 December 2017 in Case C-565/16, ECLI:EU:C:2017:942 paras. 25–73. 30 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 456; Brosch, GPR 2020, 179, 183. 31 Brosch, GPR 2020, 179, 183–184.

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Art. 16 Brussels IIter Incidental questions Art. 16 answers to questions which have arisen and will arise rather in the context of the Succession Regulation,32 touching only marginally or randomly on the matters regulated by the Brussels IIter Regulation. 28

Recital (33) 2nd sentence renders a helping hand in circumscribing ‘legal act’ for the purposes of (3):33 ‘Legal act’ should include, for example, the acceptance or rejection of inheritance or an agreement between the parties on the sharing-out or the distribution of the estate. Hence, the notion of ‘legal act’ employed is wide. The issues expressly mentioned are just that what they are flagged out as: examples and illustrations. Their list is by no means exhaustive as the ‘for example’ evidences beyond even the slightest doubt. Yet they are the most prominent and practically most important issues.

29

For the isolated purposes of Art, 16 it does not matter in which specific role the child is involved under succession law. The child might appear as heir, legatee or other kind of beneficiary. This is clear from the generic nature of Art. 16. An argumentum e contrario based on ‘acceptance or rejection of inheritance’34 must not be drawn since it would be incompatible with that notion being nothing more than just one example.

30

The common and basic feature of the legal acts covered is that the child in whichever role has to utter a declaration which would trigger consequences in law and in the course of the succesion proceedings at stake. Insofar as children are deemed not capable of rendering valid legal acts at all or only with the consent of their representatives, permission or approval by a court might be required by the substantive law applicable to the respective legal act, in some instances possibly even where the child’s representatives might have consented. Taking the examples expressly listed in (3) (namely the acceptance or rejection of inheritance or an agreement between the parties on the sharing-out or the distribution of the estate) as pars pro toto, legal acts in succession law might imply severe consequences and even substantial burdens for the child. Hence many laws require permission or approval by a court by experts in law who can assess the risks and benefits connected with the respective legal act for the child.

31

The first clause of (3) rightly is formulated as a conditional phrase, an if-clause: ‘if the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court’. Whether this is the case concetly, has to be answered by the applicable substantive law. However, it would be a grave mistake to assume that the applicable substantive law in this regard would in all instances be the substantive law applicable to the succession. Such assumption would disregard Art. 1 (2) (b) Succession Regulation. Matters are more complicated and request fine distinguishing.

32

Art. 1 (2) lit. b Succession Regulation in principle excludes issues of capacity of natural persons from the substative scope of application of the Succession Regulation. This is in direct line with Art. 1 (2) lit. a case 2 Rome I Regulation; Art. 1 (2) lit. a Rome III Regulation; Art. 1 (2) lit. a Matrimonial Property Regulation; Art. 1 (2) lit. a Partnership Regulation; Art. 1 (2) lit. a case 2 Brussels I Regulation; Art. 1 (2) lit. a case 2 Brussels Ibis Regulation. Nonetheless, Art. 1 (2) lit. b Succession Regulation contains two re-exceptions referring back to specific rules of the Succession Regulation and reflecting the particularities of succession law: Art. 23 (2) lit. c Succession Regulation subjects the capability to become a heir etc. to the law applicable to the succession; and Art. 26 Abs. 1 lit. a Succession Regulation subjects the capacity to make a will, to the law applicable to the making of such will.35 Stellt das Errichtungsstatut für die Testierfähigkeit seinerseits auf die allgemeine Geschäftsfä-

32 See in particular Volmer, ZEV 2014, 129 (yet with regard to incidental questions arising under matrimonial property law). 33 Frohn/Sumner, NIPR 2020, 391, 399. 34 Emphasis added. 35 Siehe nur Jayme in Reichelt/Rechberger (Hrsg.), Europäisches Erb- und Erbverfahrensrecht (2011), p. 27, 37; Davì/Zanobetti, CDT 5(2) (2013), 1, 18; Köhler in Kroiß/Horn/Solomon, Nachfolgerecht (2nd ed. 2018), Art. 1 EuErbVO note 8; J. P. Schmidt in Dutta/Weber, Internationales Erbrecht (2016), Art. 1 EuErbVO note 30; Nikolaidis in Pamboukis, Succession Regulation (2016), Art. 1 Succession Regulation note 22; lacking the utmost precision Schall/Simon in Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (looseleaf 1973, ongoing), Art. 1 EuErbVO note 19: law applicable to succesion in general also governs capacity to make a will.

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higkeit des Erblassers ab, so ist dies eine Vorfrage.36 Schutzmaßnahmen und Vertretung von Minderjährigen regelt (allerdings in Abstimmung mit Art. 4 lit. f Hague Child Protection Convention) auch im erbrechtlichen Kontext the Hague Child Protection Convention, taking precedence to the Succession Regulation by virtue of Art. 75 (1) Succession Regulation. Yet substantive law is only one part in the equation. In order to issue such permission or approval a court need jurisdiction – and this s exactly what (3) very diligently caters for.

33

VI. According application of Art. 15 (2), (4) 1. Duty to inform (4) calls for an according application of Art. 15 (2). The rule referred to, Art. 15 (2), reads:

34

“In so far as the protection of the best interests of the child so requires, the court having taken the measures referred to in paragraph 1 of this Article shall, without delay, inform the court or competent authority of the Member State having jurisdiction pursuant to Article 7 or, where appropriate, any court of a Member State exercising jurisdiction under this Regulation as to the substance of the matter, either directly in accordance with Article 86 or through the Central Authorities designated pursuant to Article 76.” An according application is not a direct application tel quel. Variations might be necessary. This is 35 evident in the combination of (4) with Art. 15 (2). In its initial phrase Art. 15 (2) verbally relates to measures referred to in Art. 15 (1). In the context of (4) this must read as instances referred to in (1)-(3). The triggering cases must be exchanged. The ensuing consequences can be retained, however. Art. 15 (2) in essence establishes a duty to inform the fellow court(s) into whose competences the present court invades.37 Those courts shall at least be informed about what is happening. The overarching purpose of such information is rather not to awaken the other courts and to give them opportunities to intervene, but to avoid conflicting judgments on the incidental question. The court sitting in principle retains driver seat in this regard. 2. Recipients of information The recipients of the information to be provided fall in two different categories: First, the court or 36 competent authority of the Member State having jurisdiction pursuant to Art. 7 are mandatory recipients. The court sitting does not have discretion as to whether to inform them, but is under an unconditional duty. It has, however, to assess in its own competence to which Member State the connecting point employed in Art. 7, is pointing in the concrete case. Second, where appropriate, any court of a Member State exercising jurisdiction under this Regulation 37 as to the substance of the matter is a proper recipient. At first glance, the words ‘where appropriate’ appear to indicate some discretion for the court sitting as to whether to inform or not. At second glance, these words could possibly appear relate to the knowledge of the court sitting about whether courts in other Member States have already exercised jurisdiction and are hearing the case. Self-interested parties might be the main source for relaying the respective information factually. 3. Means and modalities As to the means and modalities how to perform the duty to inform, (4) in combination with Art. 15 (2) designates two possibilities: either directly in accordance with Art. 86 or through the Central Authorities designated pursuant to Art. 76. The first is the direct mode, the second a more indirect mode employing an intermediate instance of communication. Whereas direct communication might be faster under regular circumstances and avoids the danger of an intermediary causing additional delay, the indirect mode spares the danger of possibly misidentifying the final recipient. Furthermore, 36 Weller in Caravaca/Davì/Mansel, Succession Regulation (2016), Art. 1 Succession Regulation note 23. 37 See A. Schulz, FamRZ 2020, 1141, 1143.

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Intro to Arts. 17–20 Brussels IIter Introduction to Articles 17–20 a Central Authority might have better technical equipment and might thus open additional ways of in particular electronic communication which a provincial court might not have at hand. The order in which Art. 15 (2) should not be regarded as establishing a preference for the direct mode and particularly not as establishing any duty that the court sitting would have to justify if it opted for the indirect mode. 4. Duty, not obligation 39

It ought to be stressed that (4) in combination with Art. 15 (2) does not establish an obligation. The possible recipients of the information are not creditors of the court sitting, and vice versa the court sitting is not their debtor, either. The recipients are not entitled to sue the court sitting for providing the information, wheresoever.

40

Consequently, a sanction for the court invoking Art. 16 in favour of its own competence as a result of not informing, i.e. of breaching the duty to inform arising under (4) in combination with Art. 15 (2), cannot be found anywhere in Art. 16 or Art. 15. The neglecting court is not liable for damages, nor are the steps that it has taken, rendered void by the Brussels IIter Regulation. In extreme cases, a Francovich or, rather, Köbler liability38 of the forum State might be considered for the neglect its court has shown.

Section 3 Common provisions (Art. 17–Art. 21)

Introduction to Articles 17–20 I. Legislative history . . . . . . . . . . . . . . . . II. Criticism as to the order implemented . . . .

1 7

III. Ius cogens . . . . . . . . . . . . . . . . . . . .

9

IV. Practical importance . . . . . . . . . . . . . . 10 V. Influence on advisors’ practice . . . . . . . . 14

VI. Judicial co-operation and collaboration as a means of resolve . . . . . . . . . . . . . . . . . 22 VII. Impact of Brexit . . . . . . . . . . . . . . . . . 25 VIII. Out-of-court divorces and private divorces . 26

Bibliography: Álvarez González, Litispendencia, reconocimiento y orden público, La Ley/Unión Europea núm. 68, marzo de 2019, 1; 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; Andrae, Antrag auf Scheidung der Ehe bei einem Scharia-Gericht im Libanon und in Deutschland, IPRax 2018, 243; Beaumont, Interaction of the Brussels IIa and Maintenance Regulations with (Possible) Litigation in Non-EU-States: Including Brexit Implications, in: Viarengo/Villata (eds.), Planning the Future of Cross Border Families (2020), p. 331; 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; Chalas, Litispendance et décalage horaire dans le contentieux du divorce en Europe, RCDIP 2016, 387; Deschuyteneer, Beter voorkomen dan genezen: de schending van aanhangigkeitsregels kann nit leiden tot een weigering van erkenning, SEW 2019, 517; Douchy-Oudot, Le traitement de la litispendance, in: Fulchiron/Nourissat, p. 209; Escudet, Le nouveau visage de la litispendance européenne, J. act. dr. eur. 2019 n° 17; Geimer, Lis pendens in der Europäischen Union, in: FS Hans Jürgen Sonnenberger (2004), p. 357; Geimer, Das Prioritätsprinzip des Art. 29 EuGVVO und seine Grenzen, in: FS Hanns Prütting (2018), p. 285; U.-P. Gruber, Die „ausländische Rechtshängigkeit“ bei Scheidungsverfahren, FamRZ 1999, 1563; U.-P. Gruber, Die neue „europäische Rechtshängigkeit bei Scheidungsverfahren“, FamRZ 2000, 1129; U.-P. Gruber, Zur Konkurrenz zwischen einem selbständigen Sorgerechtsverfahren und einem Verbundverfahren nach der EheVO, IPRax 2004, 507; Guzmán Peces, Cuestiones problemáticas en torno a la litispendencia en el Reglamento (UE) 2201/2003 en el ámbito de las crisis familiares, 38 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.

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La Ley/Unión Europea núm. 67, febrero de 2019, 1; Hodson, Brexit: England and Wales as a Global Family Law Leader or EU-Emasculated?, [2016] Fam. L. 572; Jarmain, Staying Matrimonial Proceedings – a Thing of the Past?, [2007] Fam. L. 429; Juárez Pérez, Litispendencia internacional extracomunitaria: una alegación ignorada, CDT 12 (1) (2020), 610; Karsten, The State of International Family Law Issues, [2009] IFL 35; Véronique Legrand, Vers l’instrumentalisation des règles de litispendance européenne?, Petites Affiches n°53, 14 mars 2019, 7; 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; Marengo, La litispendenza internazionale (2000); Marongiu Buonaiuti, Litispendenza e connessione internazionale (2008); McGuire, Verfahrenskoordination und Verfahrensunterbrechung im europäischen Prozessrecht (2004); Muir Watt, Sanctionner ou circuler? Les conséquences sur le terrain des effets des jugements de la meconnaissance par le juge second saisie des règles relatives à la litispendance, RCDIP 2019, 487; Neumayr, Scheidung im internationalen Kontext: Zuständigkeit, Rechtshängigkeit und Anerkennung, iFamZ 2008, 362; Niel/Morin, L’exception de litispendance internationale et la juridiction de l’autorité religieuse saisie …, Petites Affiches n° 66, 3 avril 2017, 10; Nordmeier, Eintritt und Fortbestand der Rechtshängigkeit nach Art. 16 EuEheVO und Art. 32 EuGVVO – insbesondere bei Verfahrensaussetzung, IPRax 2016, 329; Karsten Otte, Umfassende Streitentscheidung durch Beachtung von Sachzusammenhängen (1998); Oxley, Italian torpedoes and international children: how Brussels II engenders conflict in Children Act cases, [2016] IFL 246; Pabst, Entscheidungszuständigkeit und Beachtung ausländischer Rechtshängigkeit in Ehesachen mit Europabezug (2009); Queirolo, EU Law and Family Relationships (2015); Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in: Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022); Rey, La saisine, in: Fulchiron/Nourissat, p. 181; Rodríguez Vázquez, Litispendencia y motivos de denegociación del reconocimiento: la sentencia del TJUE en el asunto C-386/17, Liberato, CDT 12 (1) (2020), 690; Ch. Schmehl, Parallelverfahren und Justizgewährung (2011); Spellenberg, Schutz der Verteidigungsrechte und Zuständigkeit nach EuGVO und EheGVO, in: FS Peter Gottwald (2014), p. 607; Spitaels/van Boxstael, Note sur la litispendance internationale en matière de dissolution du mariage et de liquidation-partage, Ann. dr. Louvain 79 (2019), 219; Viganotti, Litispendance et Bruxelles IIbis, Gaz. Pal. Nos 308 à 309, 11 novembre 2015, 11; Vitellini, European Private International Law and Parallel Proceedings in Third States in Family Matters, in: Malatesta/Bariatti/Pocar, p. 221; R. Wagner, Ausländische Rechtshängigkeit in Ehesachen unter besonderer Berücksichtigung der EG-Verordnungen Brüssel II und Brüssel IIa, FPR 2004, 286; Zˇupan/Drventic´, Parallel Proceedings – Lis Pendens and Concurrent Procedures, in: Viarengo/Villata (eds.), Planning the Future of Cross Border Families (2020), p. 203.

I. Legislative history 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 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 in particularly split into two paragraphs concerning the two grand topics of the Regulation, matrimonial affairs and parental responsibility.1 The copying method chosen caters for coherency within the overall system of European international procedural law.2 Since the lis pendens mechanism rests upon a chronlogcal order it is fundamental to set common and uniform rules whereever possible.3 The case is a little different with Art. 17: 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. However, in principle the Brussels II regime is more generous in respecting ‘false lis pendens’ than the Brussels I regime.4 ‘False lis pendens’ kind of substitutes the category of connected cases as to be found in Art. 30 Brussels Ibis Regulation,5 yet with differing consequences.

1 2 3 4 5

Biagioni, Riv. dir. int. 2004, 991, 1021. Pailler, Clunet 2019, 882, 885. Queirolo, EU Law and Family Relationships (2015), p. 186. Queirolo, EU Law and Family Relationships (2015), p. 186. Queirolo, EU Law and Family Relationships (2015), p. 188.

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Intro to Arts. 17–20 Brussels IIter Introduction to Articles 17–20 2

For the sake of continuity6 Arts. 16–19 Brussels IIbis Regulation remained generally unchanged as to substance7 compared to 9–11 Brussels II regulation (with the exception of Art. 11 (2) Brussels II Regulation being revised as Art. 19 (2) Brussels IIbis Regulation, 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:8 Art. 17 Brussels IIbis Regulation resembled the former Art. 11 (4) Brussels II Regulation with only a slight change of the wording as to the opening words.9 Arts. 17 and 18 Brussels IIbis Regulation were literally identical to the former Arts. 9 and 10 Brussels II Regulation.10 Finally, Art. 11 (1) and (3) Brussels II Regulation found refuge in Art. 19 Brussels IIbis Regulation.11 Art. 19 (2) Brussels IIbis Regulation however paid due attention to the extension of the Brussels IIbis regime towards matters of parental responsibility12 whereas Art. 11 (2) Brussels Regulation features as some (unwanted?) victim of the revision.13

3

The next step from the Brussels IIbis Regulation to the Brussels IIter Regulation included some changes as to detail, but not as to structure or underpinning general idea. The first detail is the re-numbering, adding one to the previous numbers, thus re-numbering Arts. 16–19 into Arts. 17–20. This was due to the partial reshuffle of the preceding Section 2. The second detail is the addition of (c) to now Art. 17.14 However, the possibly most important alterations relate to now Art. 20. The Art. grew in weight and size, rising from three to five paragraphs. The new entries in the newly introduced Art. 20 (4) and (5) pursue an alignment with Art. 31 (2) and (3).15 They reverse the order of priority where they apply.16 Furthermore, the content of the previously existing paragraphs was reconsidered and re-written where deemed appropriate. And finally, there is the influence which possibly the extension in principle to out-of-court divorces in Art. 2 (2) pt. 3 and Recital (14) exacts.17

4

In spite of the amount of criticism leveled against the principle of lis pendens the Commission’s Proposal for a Recast18 did not set out for a major reform of the so called Common Provisions.19 Terminologically, the Commission aspired at replacing “court/Court” with “authority/authorities” and “action” with “proceedings” throughout. It did not succeed on the first count, but on the second.

5

Two additions and new entries were proposed to Section 3. Eventually both were successful and became the new Art. 16 on incidental questions and Art. 21 on the right of the child to express his or her views. Oddly, neither proposed new entry did not find the benefit of being accompanied by an own extra Recital which would have provided for better and more in-depth explanation of the underlying policies. In the final Regulation, Recital (57) makes good for that deficit to some extent as regards Art. 21, if only in the slightly different context of recognition. The eventual Art. 16 does not star in Section 3 anymore, but has found its proper place in Section 2 amongst the rules on jurisdiction proper.

6

In its Report, initiating the recast process, the Commission also mentioned Arts. 33, 34 Brussels Ibis Regulation as potential templates for reform in a then future Brussels IIter Regulation.20 This would 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Font i Segura, REDI 2004, 273, 294. Differing apparently Gruber, IPRax 2005, 293, 295. See only Biagioni, Riv. dir. int. 2004, 991, 1021; Strohal, juris-PraxisReport 2005, 85, 86. 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, (2005) IFL 39. Font i Segura, REDI 2004, 273, 294. See in more detail infra Art. 19 notes 38–41 (Mankowski). Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 3. Gruber/Möller, IPRax 2020, 393, 404; Brosch, GPR 2020, 179, 182. Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 47. Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 9. 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).

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have established a European regime for the hitherto uncovered21 field of staying proceedings with regard to parallel proceedings pending in a Third State.22 But the reform agenda did not pursue such plans any further, as is evidenced by the lack of any such reflection in the Proposal.

II. Criticism as to the order implemented The internal order of the Section is rather squarely than fairly and not quite intelligible: Art. 17 is re- 7 lated to Art. 20 whereas on the other hand Arts. 18 and 19 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) 20, 18, 19, 17 lacks explanation. This is the more startling (if not irritating) since Arts. 17 and 20 both were derived from Art. 11 Brussels II Regulation (via Arts. 16 and 19 Brussel IIbis 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. Art. 21 obviously needed to be inserted somewhere and is unrelated to any other rule of Section 3. It is simply tacked-on. Equally questionable is why Arts. 17–20 form part of a single Section whereas in the Brussels Conven- 8 tion, 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 and as that structure has enjoyed both dignity and feasibility ever since. With all due respect, draftsmanship cannot be said to have been at its very top when the present Section was restructured in the transgession from the Brussels II to the Brussels IIbis Regulation. At least a convincing reasoning for such restructuring has not emerged yet and was not even attempted at. Admittedly, this is rather an aesthetic point of criticism than one triggering any real consequences.

III. Ius cogens Seen in isolation and per se, Arts. 17–20 are ius cogens. The parties are not entitled to derogate from 9 them even by mutual understanding and expressed consensus.23 Specific party autonomy is not available in this area. Yet for instance, Art. 20 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.24 Furthermore, choice of court agreements under Art. 10 in matters of parental responsibility happen to trigger Art. 20 (4), (5) as specific consequences.

20 Commission Report on the application of Brussels IIbis, COM (2014) 225 final p. 9. 21 See only OGH unalex AT-799; Cass. 24 juin 2020 – nos 19.11–714, 19.–11.870, JurisData n° 2020-008806 (note Farge, JCP G 2020, 1303); KG, FamRZ 2016, 836 with note Geimer; OLG Hamm, IPRax 2018, 263, 265; Hof ’s-Hertogenbosch NIPR 2010 Nr. 404 p. 673; 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, (2011) 2 FCR 33 (F.D., Deputy Judge Theis Q.C.); ER v. BF (2018) EWFC 18 (23), (2018) 3 FCR 846 (F.C., Baker J.); A-G 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 at 221 et seq.; Neumayr, iFamZ 2008, 362, 366; Scott, (2010) Fam. L. 740; Frankle, (2014) IFL 17; Bantekas, (2014) IFL 30; 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; Andrae, IPRax 2018, 243 at 243–245; Pérez, CDT 12 (1) (2020), 610, 618. 22 Hill/Shúilleabhán, Clarkson & Hill’s Conflict of Laws (5th ed. 2016), para. 8.34. 23 OLG München EuLF 2000/01, 136; Geimer in FS Hans Jürgen Sonnenberger (2004), p. 357, 367. 24 Geimer in FS Hans Jürgen Sonnenberger (2004), p. 357, 367.

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IV. Practical importance 10

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. 17–20 on lis alibi pendens and on establishing or cross-checking jurisdiction.25 Hence, these rules gain their weight and their importance from the great number of heads of jurisdiction available to applicants.26 They are designed to achieve the objective to avoid, best prevent, parties engaging in proceedings within the scope of the Brussels IIter Regulation in more than one Member State jurisdiction, one of the primary objectives of the entire Regulation.27 However, lis pendens as a mechanism becomes operative a posteriori and does not provide any preventive (or rather, proactive and pre-emptive) remedy.28

11

In the years for which the Brussels IIbis system has been effective Arts. 16–19 Brussels IIbis Regulation have prompted many applications and have established themselves to be one of the central pieces and prominent focal points of the entire system.29 The applications in practice are numerous.30 Lis pendens, a notoriously complex issue,31 has become an instant classic within the European system.32 As to practical importance – at least as evidenced by, and in terms of, published court decisions – their only serious rivals have been Art. 3 and Art. 15 Brussels IIbis Regulation.33 That the Regulation had attended to the vexing question of how to decide which of two Member State courts was seised first had obviously not erased chances that difficulties can arise.34 English courts have resorted to not encoruaging, but actively discouraging, the tactical filing of a second set of proceedings in England at least once the jurisdiction of the court of another Meber State has been established.35

12

In fact, the most 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.36 The couple that first litigates where to litigate might be said to be cursed.37 Such curse might be mainly restricted to the rich, though, for “only they can afford such folly”.38 Only the rich fight to establish priority for there is no other incentive to fight but financial advantage.39

13

Obtaining advice as to which is the best jurisdiction requires good lawyer contacts in other countries and an ability on the client’s side to pay for such advice (and to a certain extent upfront and quickly).40 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

25 Crône, Rép. Defrénois 2005, 1331, 1337; Massip, Rép. Defrénois 2005, 1348, 1349. 26 Sana-Chaillé de Néré, D. 2005, 1459, 1461. 27 Ilaria Giusti v. Ferruccio Ferragamo (2019) EWCA Civ 691 (63), (2019) 2 FLR 261, (2019) 2 FCR 827 (C.A., per Moylan L.J.); Deschuyteneer, R.W. 2018–19, 1435 at 1435. 28 Chalas, RCDIP 2016, 387, 393. 29 See Borrás in Malatesta/Bariatti/Pocar, p. 99, 105. 30 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. 31 Niel/Morin, Petites Affiches n°66, 3 avril 2017, 10 at 10. 32 Dimmler, FamRB 2016, 43, 44. 33 See on the latter Child and Family Agency v. JD (Case C-428/15), ECLI:EU:C:2016:819; A-G Wathelet, Opinion of 16 June 2016 in Case C-428/15, ECLI:EU:C:2016:458; IQ v. JP (Case C-478/17), ECLI:EU:C:2018:812; A-G Wathelet, Opinion of 10 July 2018 in Case C-478/17, ECLI:EU:C:2018:552. 34 Briggs, (2005) 76 BYIL 641, 654. 35 E v. E (2015) EWHC 3742 (Fam), (2017) 1 FLR 658 (41) (F.D., Moylan J.). 36 Golubovich v. Golubovich (2010) EWCA 810, (2010) 2 FLR 1614, 1629 (C.A., per Thorpe L.J.). 37 Wermuth v. Wermuth (No. 2) (2003) 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). 38 Wermuth v. Wermuth (No. 2) (2003) 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). 39 Golubovich v. Golubovich (2010) EWCA 810, (2010) 2 FLR 1614, 1629 (C.A., per Thorpe L.J.). 40 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.

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wealthy spouse is likely to suffer badly.41 The spouse requiring public funding becomes very vulnerable.42 This is said to become a gender issue and to benefit wealthier spouses who are making the break in the marriage.43

V. Influence on advisors’ practice Arts. 16–19 Brussel IIbis Regulation have undoubtedly and heavily affected family lawyers’ practice,44 14 as will the present Arts. 17–20, the more so since case law tends to show that the succesful party is usually the one whose proceedings have progressed further in their chosen court.45 It is said that woe betide the lawyer who does not advise his client of the race to court46 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.47 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 seisin48 and snatching the jurisdictional advantage.49 The lis pendens system rewards speed on litigants’ part and does not hasten to penalise self-serving tactics by parties.50 Who strikes first might simply gain the jurisdictional and tactical edge. Such edge becomes the more 15 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 matters51 and generally disregarded in the past52 any kind of pre-nuptial agreement53 on which parties from other jurisdictions might rely.54 This might lead to the implosion of any advance planning and gives even greater weight to the race to the courthouse. The system of “first past the post” or “first to issue secures juridiction”55 leaves no room for delay.56 It is alleged to work against attempts to settle, ADR, and saving marriages.57 In the ultimate consequence, there should be no letters and no pre-trial correspondence before action in Brussels IIbis cases.58 Letters might be a forewarning and might entice the recipient to strike first with or without

41 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. 42 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. 43 Hodson, (2016) Fam. L. 572, 573. 44 Bradley, June (2008) IFL 85, 86. 45 Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. 46 Bradley, June (2008) IFL 85, 86. 47 Laura Brown/Nicole Fisher, (2008) 158 New L.J. 1548, 1549. 48 Newton, The Uniform Interpretation of the Brussels and Lugano Conventions (2002), p. 166. 49 Briggs, (1994) LMCLQ 158. 50 Crawford, (2005) 54 ICLQ 829, 835; Althammer, FamRZ 2015, 2039, 2040. 51 See only McClean in Dicey/Morris, Conflict of Laws (16th ed. 2006), para. 18 R-027. 52 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. 53 Post-nuptial agreements on the other hand have found legal recognition in MacLeod v. MacLeod (2008) UKPC 64, (2010) 1 AC 298 (P.C.). 54 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.). 55 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. 56 Brown/Fisher, (2008) 158 New L.J. 1548, 1549. 57 Hodson, (2016) Fam. L. 572, 573. 58 Bradley, (2008) IFL 85, 86; Mankowski, FamRZ 2015, 1865; see also Crawford, (2005) 54 ICLQ 829, 839; Mankowski, IHR 2010, 42, 43.

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Intro to Arts. 17–20 Brussels IIter Introduction to Articles 17–20 luring the sender in some kind of false security.59 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.60 The kind attempt to settle matters amicably and consensually might badly turn against the one proposing it.61 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.62 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.63 This is also said to affect the settlement-orientated English family law industry.64 17

In matters of parental responsibility 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.65 Delay caused by jurisdiction proceedings is regrettable in divorce cases, but most unwelcome in children cases where time might be of the essence.66 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.67 The status quo is strengthened, the bias against changing is enhanced for the sake of the welfae of the child, and time can be bought to create a new status quo which will then affect the entire contact timetable.68 Institaging time-consuming proceedings can also compound further to building a new habitual residence of the child.69

18

A lawyer’s advice to a client must be to secure jurisdiction first and only then to consider methods of ADR.70 Mediation or other ADR without securing jurisdiction has become unadvisable to a certain degree.71 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.72 The tactical strike undermines the necessary trust. In turn, this might lead to preemptive strikes, encourages precipitate litigation73 and undermines negotiations which could be sensible. Reconciliation or the exploration of conciliated resolution would be prejudiced.74 Even worse, negotiations before commencing litigation could become treacherous efforts luring opponents in false security whilst one is preparing the own strike.75 Risk-averse legal advice rendered understandably in order to cover the advising lawyer’s back will tend to inflame tensions.76 It will be for individual representatives to mitigate ill feeling which stems from preemptive strikes.77

19

Even suggesting relationship counselling might be threatened and endangered since doing so and thus admitting that the marriage was in difficulties might prompt and precipitate the other spouse to

59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

Bradley, (2008) IFL 85, 86; Mankowski, IHR 2010, 42, 43. See the scenario in BGE 123 III 414. Bradley, (2008) IFL 85, 86; Mankowski, IHR 2010, 42, 43. 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. 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.

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issue first to the other spouse’s significant advantage.78 In the shadow of a pending application for divorce afterwards there appears to be little room for successful counselling.79 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.80 Lawyers have to balance their clients’ concerns with the advantages of securing jurisdiction and to en- 20 sure that they, the lawyers, are not subject to a negligence claim against them in the future.81 That the Brussels IIter system does not contain the option of a discretionary transfer in matrimonial matters might exacerbate the bitterness of any party obliged to litigate in a court in which that party could have no confidence.82 The case in different in matters of parental responsibility where Arts. 12; 13 provide for some outs.

21

VI. Judicial co-operation and collaboration as a means of resolve Lis pendens strictly and rigidly applied to the letter will with high likelihood result in orders which at 22 least one of the parties concerned will find harsh, and might impunge the perceived dignity of at least one of the courts seised 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. Judicial collaboration in cross-border family disputes within the EU is at a stage of advanced development.83 On an abstract, not directly case-related level there are regular meetings if the European Judicial Network devoted to family law and practice.84 Additionally, most EU Member States have nominated a judge apiece with responsibility for Brussels IIbis and now Brussels IIter business.85 Liaison judges form other Member States might prove valuable sources for information about the structure of possibly competing and colliding proceedings in their respective home State.86 Art. 86 certainly enhances the trend and points towards the same direction insofar as lis pendens is listed amongst the topics on which Member States should proide information.

23

The European Judicial Network might also provide the proper basis for direct communication be- 24 tween 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.87 Cases tend to illustrate the potential of direct judicial communication and cooperation.88 Judges plainly dealing with the same family dispute in two different jurisdictions should communicate and collaborate.89 They should not advance rival and competing claims for the responsibility to impose solutions on the warring parties.90 Wise and experienced judges might even reach, with amity, a shared view as to which court is better placed to hear the case91 (yet within the limits of their respective national rules of procedure).

78 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. 79 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. 80 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. 81 Bradley, (2008) IFL 85, 87. 82 See Golubovich v. Golubovich (2010) EWCA 810, (2010) 2 FLR 1614, 1628 (C.A., per Thorpe L.J.). 83 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (89) (C.A., per Thorpe L.J.). 84 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (89) (C.A., per Thorpe L.J.). 85 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (89) (C.A., per Thorpe L.J.). 86 Example: Rb. Den Haag ECLI:NL:RBDHA:2020:1737. 87 Bentinck v. Bentinck (2007) EWCA Civ 175, (2007) 2 FCR 267, 278 (C.A., per Thorpe L.J.). 88 Bush v. Bush (2008) EWCA Civ 865, (2008) 2 FLR 1437, 1447 (49) (C.A., per Thorpe L.J.). 89 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (89) (C.A., per Thorpe L.J.). 90 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (89) (C.A., per Thorpe L.J.). 91 Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 530 (90) (C.A., per Thorpe L.J.).

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VII. Impact of Brexit 25

Since Brexit had become effective eventually before Arts. 17–20 became effective and applicable, Arts. 17–20 generally do not apply to collisions between British proceedings and proceedings in the other Member States.92 Lis pendens in these cases has to be judged on the ground of domestic rules.93 That is a point of affairs which from a pointedly English perspective some (but by no means all)94 English family lawyers have long wished for.95 But such Englishness comes with a price: Continental courts might possibly disregard English proceedings wholehandedly, depending on the position and stance which their respective domestic law. The self-perceived and self-acclaimed “global family law leader”96 England might detect that for such assumed leadership it needs others willing to follow the lead.

VIII. Out-of-court divorces and private divorces 26

As regards the context of lis pendens, out-of-court divorces and private divorces97 are not properly reflected in the Brussels IIter Regulation. Arts. 17–20 still adhere to the traditional perspective of court proceedings for divorce. Arts. 18–20 in particular are designed for traditional court proceedings, using specific terminology. Even Art. 17 does not really fit administrative proceedings assisting private consensual divorces.98

27

From the other side, Recitals (14), (70) 1st sentence and Arts. 64 et seq. equate out-of-court divorces to ‘decisions’, yet only operate in the context of recognition if one is prepared to take them verbatim.99 Even the newly introduced definition in Art. 2 pt. (3) refers only to Chapter IV on recognition and enforcement, not to lis pendens. The counter-argument is evident, though: Recognition is the next step whereas lis pendens pursues the same purpose to prevent irreconcilable decisions. Art. 64 supports this for it refers to Chapter II in its entirety, without excluding its Section 3. Hence, Art. 64 integrates lis pendens in jurisdictions as does Chapter II. Overall, the Brussels IIter Regulation is not paying direct and explicit attention to possible consequences of out-of-court divorces or private divorces in the field of lis pendens.100

28

It would be puzzling and a waste of resources if an earlier out-of-court or private divorce did not bar later court proceedings at least in some way.101 The principle of prior tempore as such is not germane to conflicts between different sets of court proceedings. Where the out-of-court or private divorce is already validly completed Arts. 64 et seq. provide the answer: The court seised later-on for dissolving the same marriage ought to recognise that earlier divorce under the requirements cast by Arts. 64 et seq. and should dismiss the application accordingly.

29

Out-ot-court divorces in principle have their fundament in the parties’ autonomy in a wider sense. Insofar as the parties consensually pursue an out-ot-court divorce in one State and switch over to another State, starting new proceedings there without having finished the set in the first State, this 92 Rieck, NZFam 2016, 878 at 878; Consolo/Stella, Int’l Lis 2016, 57, 61. 93 Rieck, NZFam 2016, 878 at 878; Beaumont in Viarengo/Villata (eds.), Planning the Future of Cross Border Families (2020), p. 331. 94 See for an opposite view Bailey-Harris/Wilson, (2016) Fam. L. 568; Bailey-Harris/Wilson, (2016) Fam. L. 692. 95 Hodson, (2016) Fam. L. 572; Oxley, (2016) IFL 246. 96 Hodson, (2016) Fam. L. 572. 97 For a compact comparative survey see Marchal Escalona, CDT 13 (1) (2021), 460, 463–473. 98 Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 31. 99 Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 29–31. 100 Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 31. 101 See Gruber in Nomos Kommentar zum BGB vol. 6 (3rd ed. 2016), Vor Art. 1 Rom III-VO note 89; Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 31.

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amounts to some kind of venire contra factum proprium.102 However, the parties have it in their hands to dissolve any conflict of proceedings either by completing or by withdrawing the proceedings in the first State.103 Recital (14) develops and distinguishes three categories of out-of-court divorces. For the first category, arguably Arts. 30 et seq. are a serious contender to Arts. 64 et seq. in the field of recognition104 with the further conequence that out-of-court divorces of the second category would not trigger Art. 20.105

30

Beyond that, it is for a future Brussels IIquater Regulation to determine whether and, if so, from which point of time preparatory steps for an out-of-court or private divorce bar the filing of an application for divorce with a court.106

31

Article 17 Seising of a court A court shall be deemed to be seised: (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; or (c) if the proceedings are instituted of the court’s own motion, at the time when the decision to institute 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. I. Ratio legis . . . . . . . . . . . . . . . . . . . .

1

II. Substantive scope of application . . . . . . . III. Notions common to (a) and (b) . . . . . . . 1. Document instituting the proceedings or an equivalent document . . . . . . . . . . . . . . 2. Lodging . . . . . . . . . . . . . . . . . . . . . . 3. Service . . . . . . . . . . . . . . . . . . . . . . . a) Notion . . . . . . . . . . . . . . . . . . . . . b) Overcoming factual difficulties . . . . . . c) Legal intricacies . . . . . . . . . . . . . . . 4. Amendments of applications and counterclaims . . . . . . . . . . . . . . . .

7 12 12 22 26 26 29 30

2. Concept of retroactivity . . . . . . . . . . . 3. Necessary measures . . . . . . . . . . . . . 4. “Subsequent” . . . . . . . . . . . . . . . . . a) General considerations . . . . . . . . . b) Implicit reference to time limits under the lex fori . . . . . . . . . . . . . . . . c) Other yardsticks . . . . . . . . . . . . . d) Consequences of a lack of subsequent steps . . . . . . . . . . . . . . . . . . . .

. . . .

. . . .

39 43 50 50

. . 53 . . 55 . . 59

V. Sorting the national laws . . . . . . . . . . . 60 VI. Mandatory attempts for reconciliation . . . 64

34

VII. Other aspects of seisin outside Art. 17 . . . 71

IV. Autonomous notion of lis pendens . . . . . 35 1. Generalities . . . . . . . . . . . . . . . . . . . . 35

VII. Officially instituted proceedings . . . . . . . 72

102 Reuß in Garber/Lugani (ed.), Die neue Brüssel IIb-VO (2022). 103 To a similar avail Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 12. 104 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 10. 105 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 11. 106 See Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 31.

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Art. 17 Brussels IIter Seising of a court

I. Ratio legis 1

Art. 17 is identical to the former Art. 11 (4) Brussels II Regulation which was singled out, becoming an Article on its own for the first time in Art. 16 Brussels IIbis Regulation.1 Art. 16 Brussels IIbis Regulation now got simply renumbered and became Art. 17 without any alterations as to substance. In turn Art. 30 Brussels I Regulation was modelled on Art. 16 Brussels IIbis Regulation, following suit. In yet another turn and given the progeny, jurisprudence on Arts. 32 Brussels Ibis Regulation; 30 Brussels I Regulation can become a guiding instance for the interpretation of Art. 17.2 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 seised.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 des not embark upon the German distinction between Anhängigkeit und Rechtshängigkeit.8 Art. 17 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. 17 has been appraised and acclaimed as Salomonic.10 The definition contained carries with it the way of authoritativeness.11

2

The problem which was intended to address by virtue of Art. 17, once again is forum shopping or, employing more drastic words, forum running12. 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 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 draftsmen 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 mat1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

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; MH v. MH (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; Prisching in Gitschthaler, Art. 16 note 1. See only Hausmann, A note 96; 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.); Douglas, (2014) Fam. L. 1523. 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. 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 Thiele, RIW 2004, 285; Baatz, (2004) LMCLQ 25; Mankowski, EWiR Art. 21 EuGVÜ 1/04, 439; Grothe, IPRax 2004, 205; Schilling, IPRax 2004, 294.

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ters, 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. 17 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 IIter Regulation.23 Perhaps quite astonishingly and rather by chance the solution found is more justified in the present 4 contet of certain family proceedings 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 seised 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 abroad24). Hence, there the cure does not address the disease properly.25 Establishing a EU notion of seisin, a twofold one at that, might have been a nice and shrewd move 5 with 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 seised 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. 17 does not protect either spouse against any coup de main or coup de surprise, any 6 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 seised.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

17 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. 18 Dilger in BBGS, Art. 16 note 2 (2005); Prisching in Gitschthaler, Art. 16 note 2. 19 As succinctly phrased by von Mehren in FS Ulrich Drobnig (1998), p. 409. 20 See in more detail in particular Bomhoff, NIPR 2004, 1. 21 Malatesta in Corneloup, Art. 16 note 3. 22 Hau, FamRZ 2000, 1333, 1339; Rauscher in Rauscher, Art. 19 note 20; Gruber in Nomos Kommentar BGB, Art. 19 note 10. 23 As Hausmann, A note 127 does. 24 See Grothe, IPRax 2004, 83. 25 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. 26 Uttered e.g. by Makridou in Liber amicorum Konstantinos Kerameus (Athinai 2000), p. 237, 255; Makridou in FS Kostas Beys (2003), p. 941, 943 et seq.; Gardeñes Santiago, AEDIPr 2002, 671, 673. 27 Precisely addressed e.g. by Dieter Stauder in FS Gerhard Schricker (2005), p. 917, 928. 28 Baatz, (2004) LMCLQ 25, 28. 29 Wermuth v. Wermuth (No. 2) (2003) 1 FLR 1029, 1039 (C.A., per Thorpe L.J.). 30 Malatesta in Corneloup, Art. 16 note 12.

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II. Substantive scope of application 7

Nevertheless, the scope of Art. 17 is rather limited: It does not introduce any notion of seisin 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. 17 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 seised”.32 Also it does neither define nor circumscribe what might constitute “service”. “Seisin” is its sole and proper, quasi monothematic topic.33 It directly relates only to when a certain court is seised,34 not to a possible clash between different sets of proceedings.35

Furthermore, it appears arguable whether Art. 17 should be taken as a notion of seisin 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 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. 17. 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. 17 for instance in the context of Art. 10036 or for the purposes of determing jurisdiction under Arts. 7–13; 22–27 after a switch of habitual residence.37 This might draw further support, if any, from the restructuring of the present Section compared to Art. 11 Brussels II Regulation with Art. 17 taking the lead in numerical order and being separated from Art. 20.38 9 Art. 17 is a copycat derived via Art. 16 Brussels IIbis Regulation 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).39 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. 17 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.40 Art. 14 (c) Successions Regulation might serve as an agrumentative model in this regard.41 8

31 Lupoi, ZZP Int. 8 (2002), 149, 168. 32 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. 33 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.); Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (45), (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.). 34 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 29; MH v. MH (Case C-173/16), ECLI:EU:C:2016:452 para. 25; A-G Cruz Villalón, Opinion of 8 September 2015 in Case C-489/14, ECLI:EU:C:2015:559 para. 106; Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (42), (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.). 35 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. 36 See in more detail Art. 100 note 8 (Mankowski) and on the respective problem under Art. 66 Brussels Ibis Regulation Mankowski in Magnus/Mankowski, Art. 66 Brussels Ibis Regulation notes 19–22. 37 Rb. Noord-Holland NIPR 2018 Nr. 401 p. 825; Hausmann, A notes 43, 96, 164; Schäuble in Althammer, Art. 16 note 2. 38 Dilger in BBGS, Art. 16 note 3 (2005). 39 See only Nordmeier, IPRax 2016, 329 at 329. 40 Gruber in Nomos Kommentar BGB, Art. 16 note 7; Rauscher in Rauscher, Art. 16 note 1. 41 See Nordmeier, IPRax 2016, 329 at 329.

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Art. 17 Brussels IIter

That the English version refers to a “time” whereas the French text employs “la date à laquelle”42 should be seen as an immaterial linguistic nuance not bearing any relevance.43 The “time” referred to in the English version should be read and understood as “date”. This should relieve of any conundrum. Art. 17 is describing a particular moment and not a period of time; the proviso is a condition defeasant.44

10

Art. 17 aims at a common notion for both matrimonial causes (a) and causes related to parental responsibility (b).45 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.46

11

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 gained no di- 12 rect definition47 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/CJEU in the context of the Brussels I/Ibis regime, and thus better guidance might be provided for the unwary. Furthermore, it is bound to reappear in Arts. 38 (b); 39 (1) (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 and notion 13 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 ran 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.48 The then ECJ circumscribed the term “document which instituted the proceedings or equivalent 14 document”49 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.50 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.51 Two criteria can be deduced from the definition: the document must necessarily be served before an enforceable judgment can be obtained, and it must enable the respondent to decide whether to de42 Emphasis added. 43 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. 44 Re I (A child) (Contract application: jurisdiction) (2009) UKSC 10 (80), (2010) 1 FLR 361 (S.C., per Lord Clarke of Stone-cum-Ebony). 45 Rauscher in Rauscher, Art. 16 note 1; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 3. 46 Rauscher in Rauscher, Art. 16 note 1. 47 Briggs, (2005) 76 BYIL 641, 656. 48 Layton/Mercer, para. 26.032. 49 See in extenso monographically Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr. 2 EuGVÜ, Lugano-Übereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998). 50 Hengst Import BV v. Anna Maria Campese, (Case C-474/93) (1995) ECR I-2113, I-2128 para. 19. 51 Peter Klomps v. Karl Michel, (Case 166/80) (1981) ECR 1593, 1605 et seq. paras 8–11.

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Art. 17 Brussels IIter Seising of a court fend the action.52 It is actually due to call on the respondent to prepare, and to arrange for, his defence.53 The level of particularity is the minimum necessary for the defendant whether he is to defend the application.54 Therefore the document which instituted the proceedings or equivalent document must convey sufficient information about the subject matter and the elements of the proceedings.55 The key elements must be brought to the respondent’s attention.56 To this avail the document must be comprehensible.57 16

These are minimum requirements established by EU law and paramount to national law,58 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.59 Furthermore, one should not require the applicant longing for divorce to present a marriage certificate since this is rather administrative60 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 Regulation61.62 Insofar as service of the document instituting the proceedings, on a respondent resident in another Member State than the forum state is required such service must comply with the prerequisites defined under the Service Regulation. The Service Regulation does deal, however imperfectly,63 with questions of language and translation in its Art. 8.64

18

Documents presented subsequently in the proceedings after they have been initiated do by their very definition not constitute documents.65 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.66 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.

52 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. 53 Francq in Magnus/Mankowski, Art. 45 Brussels Ibis Regulation note 38. 54 Layton/Mercer, para. 26.032. 55 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. 45 Brüssel Ia-VO note 28. 56 Heß, IPRax 1994, 10, 16; Kodek in Czernich/Tiefenthaler/Kodek, Art. 34 EuGVVO note 17. 57 See Layton/Mercer, para. 26.032. 58 P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 34; BGH 19 May 2021 – XII ZB 190/18 para. 16; Geimer/ Schütze, EuZVR Art. 45 EuGVVO note 119. 59 Grunsky, IPRax 1996, 245, 246; Kodek, ZZP Int. 4 (1999), 125, 136; Leible in Rauscher, Art. 45 Brüssel Ia-VO note 28. 60 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. 61 Hof ’s-Gravenhage NIPR 2006 Nr. 12 p. 30. 62 See infra Art. 17 note 28 (Mankowski). 63 See only Götz Leffler v. Berlin Chemie AG, (Case C-443/03) (2005) ECR I-9611; Mankowski, (2006) 43 C.M.L. Rev. 1689. 64 See in more detail infra Art. 16 note 28 (Mankowski). 65 Geimer/Schütze, EuZVR Art. 45 EuGVVO note 122; Kropholler/von Hein, Art. 34 EuGVVO note 31. 66 Grunsky, IPRax 1987, 219; Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr 2 EuGVÜ, LuganoÜbereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998), pp. 182 et seq.; 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, EuZVR Art. 45 EuGVVO note 122.

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In proceedings aiming at the dissolution of a marriage or in matters of parental responsibility it is 19 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 at a document instituting the proceedings as far as they relate to the further party.67 “Documents” as a term relates to documents in paper traditionally. Today, this ought to be extended 20 to electronic documents substituting for documents in paper by virtue of the law of the respective forum. Furthermore, many laws offer parties the opportunity to orally deposit and dictate their applications etc. to the courts’ clerks (e.g. according to § 434 ZPO or § 10 AußStrG in Austria). Another contingency might be that applications are made orally in the hearing. Insofar as any of this triggers lis pendens, Art. 17 should be applied per analogiam.68 An application for mere provisional and preliminary proceedings (like e.g. a voorlopig getuigenverhoer 21 in the Netherlands or a selbständiges Beweisverfahren in Germany) does not institute the main proceedings, though69 (but should be handled under Art. 20 where feasible70). The same holds true for applications for injunctive relief insofar as they do not institute the main proceedings. Prorovisioanl, preliminary or protective measures serve their own purposes germane to them, and will not be superseded by subsequent main proceedings.71 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.72 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 suffice73 at least as an equivalent to a document instituting proceedings, but not as such a document proper.74 If national law does not attach such consequence to an application for legal aid, the main proceedings for divorce do not become pending.75 2. Lodging “Lodging” has not obtained a detailed definition yet,76 not even in the context of Arts. 30 Brussels I 22 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.77 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 logding is not per se detrimental.78 67 68 69 70 71 72 73 74 75 76 77 78

See Geimer/Schütze, EuZVR Art. 45 EuGVVO note 122. Simotta in Fasching/Konecny, Art. 16 notes 20, 27; Prisching in Gitschthaler, Art. 16 note 10. 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. Queirolo, EU Law and Family Relationships (2015), p. 187. OLG Koblenz, IPRax 1992, 36; Schlosser/Hess, Art. 45 EuGVO note 10; Stumpe, IPRax 2008, 22, 24. See in more detail Art. 17 notes 58–61 (Mankowski). Simotta in Fasching/Konecny, Art. 16 note 23. Hausmann, A note 98, B note 193; 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. Dimmler, FamRB 2017, 55, 56 (referring to German law and BGH, FamRZ 2017, 783); Prisching in Gitschthaler, Art. 16 note 9. Malatesta in Corneloup, Art. 16 note 5. Hausmann, B note 192; Schäuble in Althammer, Art. 16 note 5. See OGH JBl 2016, 543 = EF-Z 2016/136, 278 with note Nademleinsky.

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Art. 17 Brussels IIter Seising of a court 24

Art. 17 does not contain any restrictive definition or notion of “court”, either.79 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.

25

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.80 3. Service a) Notion

26

The notion of “service” is not directly defined in Art. 17. Within the emerging realm of Community instruments, originally Regulation (EC) No. 1348/2000,81 now its successor Regulation (EC) No. 1393/ 2007 (the Service Regulation)82 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. 17 here must be consonant with the concept in the Service Regulation.83 Otherwise there would be a serious mismatch between the respective provisions for seisin and judgment recognition.84

27

Art. 32 (1) subpara. 2 Brussels Ibis Regulation contains another valuable clarification which should be transferred to the realm of Art. 17, namely that the authority responsible for service shall be the first authority receiving the documents to be served.85 This is consonant with Art. 2 (1) Service Regulation, too.86 To rely of receipt might cause evidentiary problems in practice, though, since not all courts allow out of hours delivery or time stamp receipt.87 Where available, online delivery might causae additional differences in treatment.88

28

Insofar as service within the EU is at stake the Service Regulation must be applied anyhow, 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 Service89 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). 79 Stumpe, IPRax 2008, 22, 24. 80 Viganotti, Pratique du divorce international (2016), p. 24. 81 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. 82 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. 83 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. 84 Tavoulareas v. Tsavliris (No. 2) (2006) EWCA Civ 1772, (2007) 1 WLR 1573, 1578 (C.A., per Longmore L.J.). 85 Malatesta in Corneloup, Art. 16 note 6. 86 Insofar Malatesta in Corneloup, Art. 16 note 6 appears to be mistaken by Art. 2 (2) Service Regulation. 87 Harding in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 339, 345. 88 Harding in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 339, 345. 89 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.

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b) Overcoming factual difficulties Serving the application on the respondent can be difficult in practice, in particular where the respon- 29 dent 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.90 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.91 c) Legal intricacies The difficulties of service do, however, not stop with these factual considerations. Service in any event 30 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.92 Whether these requirements are met must be ascertained in the concrete case.93 The requirements of the Service Regulation includes Art. 8 (1) Service Regulation which vests in the 31 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. 17, too.94 If the applicant fails to effect service on the respondent in accordance with the lex fori, the lis pendens 32 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.95 Irregularities of service after lodging do not render the application ineffective buit might be cured even if they allegeldy undermined the respondent’s right of defence.96 Nonetheless, even premature service on the respondent before effectively lodging the initiating docu- 33 ment 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.97 (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.98 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 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 re90 91 92 93 94 95 96

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. Gruber, FamRZ 2000, 1129, 1133. AP Barcelona AEDIPr 2008, 880, 881; Gardeñes Santiago, AEDIPr. 2008, 882; Malatesta in Corneloup, Art. 16 note 14. 97 App. Milano RDIPP 2005, 141, 142 et seq. = EuLF 2005, II-134 with note Mongiò-Erdelbrock. 98 Emphasis added.

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Art. 17 Brussels IIter Seising of a court spective 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.99 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.100 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.101

IV. Autonomous notion of lis pendens 1. Generalities 35

Art. 17 comprises an autonomous notion102 in order to determine the point of time when the competing proceedings become pending. It establishes a uniform substantive rule of procedural law.103 Like Arts. 32 Brussels Ibis Regulation, 30 Brussels I Regulation, Art. 17 in principle deviates from, and breaks away from, determining this question pursuant to the various national procedural laws of the Member States.104 But the autonomous notion is not 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.105 It would be deeply inappropriate to establish a general notion when a court is deemed to be seised, 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.106

36

As a deterrent to frivolous or vexatious proceedings, Art. 17 requires that a court will be seised at the time that proceedings were formally initiated, only if subsequently the necessary initiation procedures have been completed.107 (a) provides that a court is only seised by the filing of the claim if subsequently the claim is served. Art. 17 (b) provides that a court is only seised by service of the claim if subsequently the claim is filed.

37

Art. 17 opts for a rather early point in time (or perhaps even the earliest point in time feasible108) for a court to be seised: According to (a), a court is already deemed to be seised 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.109 Those prerequisites are judged according to the lex fori.110 If the applicant complies with the rules of the lex fori about service he does not fail in any event.111 The European legislator wants to punish the applicant for becoming idle and to fail to serve the document.112 The respective proviso aims at ensuring protection against abuse of 99 Spellenberg in Staudinger, Art. 16 note 16; Simotta in Fasching/Konecny, Art. 16 note 16; Malatesta in Corneloup, Art. 16 note 9. 100 Spellenberg in Staudinger, Art. 16 note 16. 101 Malatesta in Corneloup, Art. 16 note 9. 102 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; Prisching in Gitschthaler, Art. 16 note 1. 103 Droz/Gaudemet-Tallon, RCDIP 90 (2001), 601, 642; Ciron, RCDIP 104 (2015), 455, 457; Mankowski, FamRZ 2015, 1865, 1866. 104 See only Mostermans, NIPR 2001, 293, 300; Gaudemet-Tallon, Clunet 128 (2001), 383, 402; Rey in Fulchiron/Nourissat, p. 181, 186. 105 Layton/Mercer para. 22.053. 106 Rey in Fulchiron/Nourissat, p. 181, 187. 107 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 3. 108 Mostermans, NIPR 2001, 293, 301; Crawford, (2005) 54 ICLQ 829, 839. 109 Illustrations of an easy and uncomplicated application may be found e.g. in Hof s’-Hertogenbosch NIPR 2017 Nr. 266 p. 536; Rb. Noord-Holland NIPR 2017 Nr. 160 p. 266. 110 Gruber, FamRZ 2000, 1129, 1133. 111 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.). 112 Mongiò-Erdelbrock, EuLF 2005, II-135; Mankowski, FamRZ 2015, 1865, 1866.

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process.113 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.114 But service being effected, the applicant is not bothered with the span of time this might have consumed.115 He is not beleaguered with delays caused by the judicial system(s).116 Generally, Art. 17 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.117 The uniform solution and the allegedly unitary point of time when the lawsuit becomes pending,118 favour the applicant. If the document instituting the proceedings is, according to the lex fori, to be served before being 38 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 The particularity of Art. 17 is that the rule employs a concept of retroactivity (or in German: Rück- 39 wirkungslösung),119 also called a condition defeasant.120 The first of two acts matters (and this first act alone) if the second follows suit.121 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. 17. Art. 17 does not establish that the application becomes pending at the date when the second act is completed122 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. 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. 17 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 seised. Insofar each branch of Art. 17 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.123

40

The definition chosen prevents in any event the applicant from becoming idle after doing the first 41 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.124 The overarhcing purpose of the proviso is protection from and against abuse of process.125 Accordingly, the mere fact that the second step has not been yet taken yet, as such and seen in 113 114 115 116 117 118 119 120 121 122 123 124 125

MH v. MH (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. P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 34; MH v. MH (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 Kohler in Gottwald (ed.), Revision des EuGVÜ/Neues Schiedsverfahrensrecht (2000), p. 1, 25; Dilger in BBGS, Art. 16 note 4 (2005). Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (43), (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.) with reference to Re I (A Child) (2009) UKSC 10 (87), (2010) 1 FLR 36 (S.C., per Lord Clarke). See only Hausmann, para. B 192; Prisching in Gitschthaler, Art. 16 note 3. But cf. Cassaz. RDIPP 2008, 156, 159. Crawford, (2005) 54 ICLQ 829, 839 et seq. See only Gruber, FamRZ 2000, 1129, 1133; Strohal, juris-PraxisReport 2005, 85, 86. P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 34; MH v. MH (Case C-173/16), ECLI:EU:C:2016:452 para. 27; Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (55), (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.).

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Art. 17 Brussels IIter Seising of a court isolation, is not sufficent for asserting that the applicant has failed to take the necessary steps.126 Additional to this, the applicant must bear some responsibility for the lacking second step. Thre must be some culpable failure on the applicant’s side.127 He must not be held accountable for failures for which the judicial system of the respective forum state is responsible. Thus, for the purposes of checking compliance with the proviso, account would not be taken for delays caused by the judicial system applicable, but only of any failure of the applicant to act diligently.128 42

Yet establishing a common definition does not constitute more than some kind of common 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. 17. Art. 17 still is bifurcated in order to do justice to the existing and differing procedural systems of the Member States.129 As court is also charged with the intricate task to investigate as to whether its counterpart in the other country was seised 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.130 It must not remit such questions to the other court.131 3. Necessary measures

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Which measures are necessary to be taken is determined by the national law of the respective forum.132 E.g. under German law the matter is determined pursuant to § 270 (3) ZPO or § 167 ZPO and the respective case law.133 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) FamGKG134 or, if legal aid is sought for, apply for such legal aid in a formal manner providing all necessary information about his financial circumstances.135 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.136 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.137 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.138

126 Debt Collect London Ltd. and Enic Group v. S.K. Slavia-Praha Fotbal AS (2010) EWCA 1250 (43), (2011) 1 WLR 866 (C.A., per Lloyd L.J.); Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (70), (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.). 127 Debt Collect London Ltd. and Enic Group v. S.K. Slavia-Praha Fotbal AS (2010) EWCA 1250 (43), (2011) 1 WLR 866 (C.A., per Lloyd L.J.). 128 P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 34; MH v. MH (Case C-173/16), ECLI:EU:C:2016:452 para. 27. 129 Crawford, (2005) 54 ICLQ 829, 839. 130 See C v. C (Brussels II: French conciliation and divorce proceedings) (2005) 2 FLR 14, 22 et seq. (F.D., Roderic Wood J.). 131 C v. C (Brussels II: French conciliation and divorce proceedings) (2005) 2 FLR 14, 36 (F.D., Roderic Wood J.). 132 See only Aannemingsbedrijf Aertssen NV and Aertssen Terrassements SA v. VSB Machinehuur BV (Case C-523/14), ECLI:EU:C:2015:722 para. 59; Oliver Thum v. Catja Marion Thum (2018) EWCA 624 (41), (56) et seq., (2018) 1 FLR 380, (2019) Fam 226 (C.A., per Moylan L.J.); 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; Schäuble in Althammer, Art. 16 note 6. 133 Gruber, FamRZ 2000, 1129, 1133, Hausmann, A note 100; Hüßtege in Thomas/Putzo, Art. 16 note 5. 134 See only Spellenberg in Staudinger, Art. 16 note 11; Hausmann, A note 100; Schäuble in Althammer, Art. 16 note 7. 135 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. 136 KG, NJW-RR 2005, 881. 137 See KG, NJW-RR 2005, 881. 138 Geimer in Zöller, Art. 16 note 6; Schäuble in Althammer, Art. 16 note 7.

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Time limits imposed by national law are to be observed.139 If national law does not limit the time for 44 attempting service, avoiding undue delay and acting with appropriate speed should be the yardstick.140 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.141 In this event only lodging the amended application concludes the applicant’s efforts.142 As to the necessary steps to be taken, Art. 17 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”.143 Arguably, it is not necessary that service was eventually effected once the applicant had taken the necessary (and generally appropriate) steps to effect service.144 However, issuing a petition but keeping it in a safe or in secret afterwards should not suffice for compliance.145 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.146

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The most pressing burden on the applicant will often and regularly be to pay costs in advance. If the 46 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.147 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.148 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. The efforts by the applicant are the only relevant matter. Their success and whether they are 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.149

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“Failed” appears to imply that the applicant missed out on the necessary steps with some degree of 48 negligence.150 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.151 Tactically, this might open up insteresting op-

139 Spellenberg in Staudinger, Art. 16 note 12; Rauscher in Rauscher, Art. 16 note 7; Simotta in Fasching/Konecny, Art. 16 note 12. 140 Spellenberg in Staudinger, Art. 16 note 15; Rauscher in Rauscher, Art. 16 note 8; Simotta in Fasching/Konecny, Art. 16 note 13. 141 Simotta in Fasching/Konecny, Art. 16 note 24. 142 See only Gruber, FamRZ 2000, 1129, 1133; Dilger in BBGS Art. 16 note 7 (2005); Simotta in Fasching/Konecny, Art. 16 note 25. 143 Contra Dilger in BBGS, Art. 16 note 7 (2005); Hausmann, A note 101; Gruber in Nomos Kommentar BGB, Art. 16 note 6; Hüßtege in Thomas Putzo, Art. 16 note 3. 144 WPP Holdingy Italy v. Benatti (2007) EWCA 263 (65), (96), (2007) 1 WLR 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.). 145 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.). 146 Laszlo Hadadi (Hadady) v. Csilla Marta Mesko, married name Hadadi (Hadady) (Case C-168/08), (2009) ECR I-6871, I-6907 para. 31. 147 Andrae, ERA-Forum 1/2003, 28, 52; Strohal, juris-PraxisReport 2005, 85, 86. 148 Strohal, juris-PR BGHZivilR 2005, 85, 86. 149 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. 150 P v. M (Case C-507/14), ECLI:EU:C:2015:512 paras. 39, 43; Mankowski, FamRZ 2015, 1865, 1866. 151 P v. M (Case C-507/14), ECLI:EU:C:2015:512 para. 43.

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Art. 17 Brussels IIter Seising of a court portunities 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.152 49

However, one should not revert to culpa in a a technical sense but rather stick with a concept as to whether any delay can be attributed to the applicant’s conduct.153 This would cover also active conduct like applying for a stay of the proceedings, not only failures to take necessary steps.154 The applicant “fails” in any event if he submits incomplete or imprecise documentation on the replicant’s person or address.155 4. “Subsequent” a) General considerations

50

The applicant is required to take the necessary second step (as required by the lex fori) “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.156 The applicant must act timely and must not become idle. Only the diliegent applicant will get rewarded by seeing the blocking success of his application.157 “Subsequent” marks an autonomous concept and should in the outset not be measured by national, but by EU autonomous yardsticks.

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It would be fallible to read “subsequent” as establishing a fixed period of time after the lapse 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, EU 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.

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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

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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. 17.158 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. 17. 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.159 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.160 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.161 Art. 17 does not shorten the time allowed by any means.

152 153 154 155 156 157 158 159 160 161

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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. 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.

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On the other hand, Art. 17 does not extend time limits as to be found in the lex fori. Art. 17 does not contain enough substance as to allow for an extension of existing national time limits. In principle, Art. 17 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. 17 does not bar such supplementary reference.

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c) Other yardsticks The implicit reference to national law does not provide a helping hand where the national in ques- 55 tion has not established any time limits. Then the paramount consideration should be that the applicant must not let lapse time unduly162 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.163 Likewise, the applicant who has to effect service on the respondent, must not be held responsible for the delay caused by any unjustied rejection of being served by the respondent. Timetables and chronology of attempts to serve can become rather complex.164

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Materially, the applicant must not be allowed to block other jurisdictions by applying in one 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 pre-emptive strike that was not duly followed up afterwards.165

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The most intricate case unveils in the event that the applicant has not complied with a time 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.

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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 ex- 59 plained in Art. 19 ceases.166 This happens without regard as to what the lex fori says.167 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. 17 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. 17. This wording implies that taking the necessary steps subsequently is a condition-precedent for the court to be deemed seised. 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. 17 and should does not cause major concerns.

162 Spellenberg in Staudinger, Art. 16 note 15; Rauscher in Rauscher, Art. 16 note 3. 163 Spellenberg in Staudinger, Art. 16 note 13. 164 See for a particularly vexed example MB v.TB (2018) EWHC 2035 (42), (2019) 1 FLR 1249 (F.D., Williams J.). 165 Spellenberg in Staudinger, Art. 16 note 14; Rauscher in Rauscher, Art. 16 note 3. 166 Supported by Malatesta in Corneloup, Art. 16 note 13. 167 Spellenberg in Staudinger, Art. 16 note 15.

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Art. 17 Brussels IIter Seising of a court

V. Sorting the national laws 60

Which national law comes under which head, i.e. whether a national law comes within the 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 seised. This second question is exclusively governed by the other court’s law.

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Employing pointed language, States coming under lit. a can be circumscribed as file-and-serve states and States coming under lit. b as serve-and-file states.168 Alternative terminology reads issue-thenserve for (a) and serve-then-issue for (b).169

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Amongst the national laws qualifying for lit. a are i.a. Dutch law,170 German law,171 English law and Swedish law.172

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Amongst the national laws qualifying for lit. b are i.a. French law and Italian law.

VI. Mandatory attempts for reconciliation 64

Difficulties may arise if the lex fori requires parties to undertake efforts for reconciliation as many Romanic legal orders do.173 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.174 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.175

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Nor do independent reconciliation proceedings, stand alones without inherent formal connection with any divorce proceedings, pose a problem: In these cases there are simply not any divorce proceedings wwhich migt become pending. Only divorce proceedings eventually borught after the failure of such voluntary reconcilatiory attemopts have failed, would matter.176

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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. Nonetheless 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,177 not the transgression to the second period, the assignation, namely the judicial procedure in a narrower 168 169 170 171 172 173 174 175 176 177

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Briggs, (2005) 76 BYIL 641, 655. Daniel Weiner v. Cecilia Weiner (2010) EWHC 1843 (Fam) (3), (2011) 1 FLR 372 (F.D., Holman J.). 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. 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; 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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sense.178 This solution appears acceptable since the respondent is informed and alerted already by the initial summons.179 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.180 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.181 Seen in the wider context, it might not be absolutely necessary182 to depend on the initial summons as the relevant document in order to avoid a race to the courthouse.183 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.184 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.185 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 as for instace Art. 1111 Code de procedure civile does.186

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To strictly exclude reconciliatory attempts from the concept of seisin even if such attempts are man- 68 datorily 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 afterwards187 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 importantly – bar formal proceedings from being instituted in the respective country.188 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.189 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.190 Steps in the process of civil litigation are rarely automatic, but depend on the parties’ will to make progress.191

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The logical next step consists of mandatory ADR demanded not by court order in the concrete case, but on an abstract level by law in a more general fashion. In this scenario the CJEU held in Schlömp

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178 CA Aix-en-Provence Procédures 4/2005, 22; Chorley v. Chorley (2005) 2 FLR 38, 45 (C.A., per Thorpe L.J.); 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. 179 Nourissat, Procédures 4/2005, 22, 23. 180 Briggs, (2005) 76 BYIL 641, 655; Mankowski, AP H. 1/2009 Verordnung 44/2001/EG Nr. 1 Bl. 4R, 7. 181 Chorley v. Chorley (2005) 2 FLR 38, 45 (C.A., per Thorpe L.J.). 182 But cf. Boele-Woelki, ZfRV 2001, 121, 126; Schlosser in Schlosser/Hess, Art. 16 note 4. 183 Rauscher in Rauscher, Art. 16 note 5. 184 Rauscher in Rauscher, Art. 16 note 5. 185 Rauscher in Rauscher, Art. 16 note 6. Contra Gottwald in Münchener Kommentar, Art. 16 EuEheGVO note 9. 186 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 40; OLG Stuttgart, FamRZ 2018, 1596, 1597; Gruber, FamRZ 2000, 1129, 1134; Gruber in Nomos Kommentar BGB, Art. 16 note 7; Althammer, FamRZ 2015, 2039; Hilbig-Lugani, GPR 2016, 132, 133; Lugani, FamRZ 2018, 861; 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. 187 See ArbG Mannheim, IPRax 2008, 37 et seq.; AP Barcelona 26 June 2007 – Despido 304/2007-C. 188 See Stumpe, IPRax 2008, 22, 24. 189 Briggs, (2005) 76 BYIL 641, 655; Lugani, NZFam 2018, 861. 190 See Briggs, (2005) 76 BYIL 641, 655. 191 Briggs, (2005) 76 BYIL 641, 655.

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Art. 17 Brussels IIter Seising of a court (under the Lugano Convention 2007) that the proceedings are initially instituted once the respective ADR proceedings are commenced.192 If the law itself mandatorily requires ADR it integrates such ADR proceedings in the legal system of dispute resolution. The ‘A’ (for ‘alternative’) in ADR loses its pivotal and salient feature, namely that genuine ADR proceedings are based on the parties’ free will. Consequently, mandatory arbitration tribunals, mandatory conciliation bodies and even mandatory mediation bodies are recognised as ‘courts’ for the purposes of Art. 267 TFEU and Art. 62 Lugano Convention 2007.193

VII. Other aspects of seisin outside Art. 17 71

Although Art. 17 determines when a court becomes seised, there is no indication as to when a court ceases to be seised. Principle suggests that a court will no longer be seised where194 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.195 Similarly, a court will no doubt cease to be seised 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).196

VII. Officially instituted proceedings 72

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. 17 does not apply on the point of time when such proceedings are deemed to commence. It relates to party-initaited proceedings and party activities. Nonetheless, it is necessary to determine the relevant point if time for offically initiated proceedings might happen to collide with other proceedings (be that party or offically initiated) with the principle of lis pendens serving as the tie-breaker.

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The releveant point in time might be the point in time when the court first took officially notice of the matter as documented in its files.197 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.198 A sytematically very elegant solution would be to resort to Art. 14 (c) Successions Regulation199 at least as circumscribing 192 Brigitte Schlömp v. Landratsamt Schwäbisch Hall (Case C-467/16), ECLI:EU:C:2017:993 paras. 53–58; A-G Szpunar, Opinion of 18 October 2017 in Case C-467/16, ECLI:EU:C:2017:768 paras. 47–52; applauded by Markus/Renz, AJP 2017, 1350; Clavel/Jault-Seseke, D. 2018, 966; Théry, RCDIP 2018, 306; Sladicˇ, Pravna praksa 32/2018, 11; Markus, GPR 2019, 60; Hau, ZEuP 2019, 384; Kern/Uhlmann, IPRax 2020, 12, 17–18. To the same result Nieroba, Die europäische Rechtshängigkeit nach der EuGVVO an der Schnittstelle zum nationalen Prozessrecht (2006), pp. 53–54; Stumpe, IPRax 2008, 22, 24; Eberl in FS Reinhold Geimer zum 80. Geb. (2017), p. 57, 63–65 and generally Mandanis, SZZP 2007, 309, 319. 193 Handels- og Kontorfunctionærernes Forbund i Danmark v. Dansk Arbejdsgiveforening handelnd für Danfoss A/ S (Case 109/88), (1989) ECR 3199 paras. 7–9; Merck Canada Inc. v. Accord Healthcare Ltd. (Case C-555/13), ECLI:EU:C:2014:92 paras. 18–25 = EuZW 2014, 301 with note Jukic´ as regards Art. 267 TFEU and Brigitte Schlömp v. Landratsamt Schwäbisch Hall (Case C-467/16), ECLI:EU:C:2017:993 paras. 53–57; A-G Szpunar, Opinion of 18 October 2017 in Case C-467/16, ECLI:EU:C:2017:768 paras. 53–60 as regards Art. 62 Lugano Convention 2007. 194 E.g., as English law paradigmatically states, where proceedings are vexatious, scurrilous, ill-founded, or otherwise an abuse of process: CPR, r. 3.4 (2) (b). The examples for such generalisable paradigm must be found in other laws after Brexit has become effective, however. 195 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 6. 196 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 6; Simotta in Fasching/Konecny, Art. 16 note 28. 197 Hausmann, B note 197; Rauscher in Rauscher, Art. 16 note 2. 198 Hausmann, B note 197; Gruber in Nomos Kommentar BGB, Art. 16 note 8.

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some general principle if that rule was not applied to be per analogiam.200 This rule reads: “A court shall be deemed to be sesied […] (c) if the proceedings are opned 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 18 Examination as to jurisdiction Where a court of a Member State is seised 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. I. Ratio legis . . . . . . . . . . . . . . . . . . . . .

1

II. Conditions precedent . . . . . . . . . . . . . . 9 1. Lack of jurisdiction of the court seised . . . . 9 a) Lack of jurisdiction pursuant to Arts. 3–6 . 9 b) How do Arts. 6 (1) and 14 fit into the system? . . . . . . . . . . . . . . . . . . . . . 11 2. Jurisdiction of a court in another Member State . . . . . . . . . . . . . . . . . . . . . . . . 17

III. Examination ex officio . . . . . . . . . . . . . 22 1. Examination of jurisdiction . . . . . . . . . . . 22 2. Ascertaining (and proving) facts . . . . . . . . 25 IV. Consequences . . . . . . . . . . . . . . . . . . . 28 V. Negativer Kompetenzkonflikt . . . . . . . . . 34

Bibliography: Grunsky, Rechtsfolgen des Fehlens der internationalen Zuständigkeit nach dem EuGVÜ, in: FS Hilmar Fenge (1996), p. 63; Schoibl, Die Prüfung der internationalen Zuständigkeit und der Zulässigkeit des Verfahrens nach dem Brüsseler und dem Luganer Übereinkommen, in: FS Rolf A. Schütze (1999), p. 777.

I. Ratio legis Art. 18 is to the letter identical to Arts. 9 Brussels II Regulation; 17 Brussels IIbis Regulation. It re- 1 sembles, and is some kind 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 In order to insurance the effective implementation of the Brussels IIter Regulation and in accordance with the principle of mutual trust on which the Regulation is based, it is for each court to examine properly whether it really has jurisdiction.2 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. 18 has to restrict the statement of Arts. 27 Brussels Ibis Regulation; 25 Brussels I Regulation considerably. 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. 18 requires a court not to trespass on the exclusive jurisdiction of another court3 if it does not have equivalent jurisdiction of equal rank itself. 199 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. 200 Schäuble in Althammer, Art. 16 note 8. 1 See only Simons in Corneloup, Art. 17 note 2. 2 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 73; L (Case C-656/13), ECLI:EU:C:2014:2364 para. 58; W v. V (Case C-499/15), ECLI:EU:C:2017:118 para. 54; Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24 para. 44; OF v. PG (Case C-759/18), ECLI:EU:C:2019:816 para. 32 = Ned. Jur. 2019 Nr. 458 with note de Boer. 3 See Briggs, (2003) 74 BYIL 525, 527.

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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.4 Accordingly, Art. 18 aims at fighting such incentives and at protecting the jurisdictional system of the Brussels IIbis Regulation against attempts to circumvent it.5 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.6 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.7

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Art. 18 makes it crystal-clear that the heads of jurisdiction cannot be disposed of by the parties. On the other hand, Art. 18 rules out any freedom of disposition even where cooperative spouses and partners might want to proceed jointly.8 It is mandatory and applies whether or not there are extant proceedings in the courts of the other Member State.9 Art. 18 applies not only at first instance, but also in appeal proceedings before higher instances.10

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Originally and genetically, the rule was believed to help cure the phenomenon of forum shopping.11 It was intended to disencourage 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.12 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 seised lacks jurisdiction. Art. 18 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.13 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. 18 is not concerned with the case of truly competing jurisdictions, or more precisely, Art. 18 is concerned with this only insofar as in the event of truly competing jurisdictions the court originally seised still can pursue the proceedings pending before it.14 Obliging this court to check its jurisdiction will not alter the affirmative result but rather produce it.

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On the other hand, forum shopping becomes a genuine problem only if and insofar as all courts concerned and in particular the court originally seised do have jurisdiction if jurisdiction is ascertained according to the respective jurisdictional rules. Art. 18 is not concerned with precisely this. Hence, the hope to provide some remedy for the really troubling kind of forum shopping by introducing Art. 18 is quite vain a hope.15

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Art. 18 is a rather complicated and multi-faceted rule playing a role in different contexts not easily to be reconciled with each other. Intrinsically, it also is invisibly wired with, and linked to, Art. 6 (1):16 According to Art. 6 (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. 4 5 6 7 8 9 10 11 12 13 14 15 16

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. Illustration: Hoge Raad ECLI:NL:HR:2018: 917; A-G Vlas, NIPR 2019 Nr. 4 p. 104. 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). 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.

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But if different actions are already pending the forum must oblige to Art. 18 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. 3.17 Art. 6 (1) is of lesser rank than Arts. 3–5; if somewhere else than in the State of the forum actually seised 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 case directly to a court in another country. Only Art. 19 (3) 2nd sentence and Arts. 12; 13 are some (but only some)18 kind of an exception to this rule.19 Art. 18 is an attempt of an answer to the problem, but only the negative part that the case cannot be heard before the court actually seised. 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.20

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If one is poised to detect some general, political problem with the approach taken very much depends 8 on how much sympathy one has with the jurisdictional regime of the Brussels II bis system: He who deems this regime insensitive and unconvincing, will nurse a grudge against Art. 18, too.21 The personal evaluation of the protected object heavily influences the personal evaluation of the protecting measure. However, it cannot be denied that Art. 18 is a consistent measure if one wants to protect the jurisdictional system.

II. Conditions precedent 1. Lack of jurisdiction of the court seised a) Lack of jurisdiction pursuant to Arts. 3–6 First and utmost, in order to render Art. 18 operative the court actually seised must lack jurisdiction. 9 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 seised is not erased by virtue of Art. 18. 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. 18 finally secures the precedence of the Regulation regime over rules of national law, particularly such rules which express a preference for a forum nationalitatis.22 Jurisdiction for the purposes of Art. 18 means international jurisdiction only; matters of loacal jurisdiction or venue are not addressed, but left to the national law of the deciding. Court.23

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b) How do Arts. 6 (1) and 14 fit into the system? Yet the question might arises as to how Arts. 6 (1) and 14 fit into the system and whether Arts. 6 (1) and 14 can also be deemed to be referred to by Art. 18. Perhaps it is advisable to reformulate the question posed: Has “jurisdiction under this Regulation” in essence to be read as “jurisdiction under Arts. 3 to 6 (or Arts. 8 to 13 respectively)”,24 or is residual jurisdiction based on the lex fori by virtue

17 Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo, (Case C-68/07) (2007) ECR I-10403, I-10414 et seq. para. 20. 18 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. 19 McGuire, ZfRV 2005, 83, 84. 20 Grunsky in FS Hilmar Fenge (1996), p. 63, 66–68. 21 Rauscher in Rauscher, Art. 17 note 2. 22 Boiché, Gaz. Pal. 2005, 1641, 1643. 23 Simons in Corneloup, Art. 17 note 11. 24 To this avail e.g. Geimer in Zöller, Art. 17 note 2; Schäuble in Althammer, Art. 17 note 3; Simons in Corneloup, Art. 17 note 15.

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Art. 18 Brussels IIter Examination as to jurisdiction of Arts. 6 (1) or 14 of equal rank and can be deemed as imported and forming part of the jurisdictional system of the Regulation? 12

In favour of the latter solution the argument is put forward that to decide else would lead to insensible and untenable results.25 Allegedly, a court which bases its jurisdiction justifiedly on national law via Art. 6 (1) 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 exclusive nature in that constellation.26

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Additionally, the situation under Arts. 28 Brussels Ibis Regulation; 26 Brussels I Regulation is invoked.27 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.28 But this does not conform with, 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; Art. 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.29 If anything can be gained from Arts. 28 Brussels Ibis Regulation; Art. 26 (1) Brussels I Regulation at all, it does certainly not support the reported contention.

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Thirdly, the linguistic difference between “under this Regulation” and “by virtue of this Regulation” in the wording of (1) is said to get some explanation if “under” includes Art. 6 (1) whereas “by virtue of ” does not.30 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.

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The apparent clash between Art. 6 (1) and Art. 3 could be solved in the way that a court which could base its own jurisdiction solely on Art. 6 (1) should back down if the other court concerned can claim jurisdiction under Art. 3.31 Insofar, Art. 6 can be said to convey exclusivity with apparent consequences for Art. 18.32

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In cases of concurring jurisdiction the court must accept and continue the proceedings, though. In this event it does not matter whether a court in another state also has jurisdiction. The doctrine of forum non conveniens33 has not found refuge in, nor favour with, the Brussels IIter Regulation, but for Art. 12. 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. 18 becomes inoperable already if the court seised has jurisdiction regardless what can be stated with regard to other courts. 2. Jurisdiction of a court in another Member State

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Both prerequisites have to be fulfilled cumulatively in order to trigger Art. 18 into operation. 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. 18 if no other court in any Mem25 26 27 28 29 30 31 32 33

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. 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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ber State does have jurisdiction positively. That own jurisdiction to a certain degree is made dependent on others not being vested with jurisdiction by the Community Act is a peculiarity since generally courts are only concerned with ascertaining their own jurisdiction and not that of courts in other States.34 The court seised is confronted with the task to assess as to whether courts in other Member States 18 have jurisdiction.35 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 seised. Insofar, the court originally seised completes only a hypothetical examination and not the real stuff. Yet it is competent to determine the issue for the purposes of Art. 18 if only approaching the position of the other courts concerned with considerable care.36 It must not remit any questions of the jurisdiction of the other courts concerned to them.37 Accordingly, the judge has to be particularly alert to take proper account of any intraCommunity cross-border element the case before him has.38 Consequentially, this could possibly lead to diverging opinions as to whether the court seised lateron has jurisdiction. Yet in the event that the court originally seised declares itself lacking jurisdiction and dismisses the case by virtue of Art. 18 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 seised. That court has finally and conclusively dismissed the case, and for re-opening the case it would lack jurisdiction eventually.

19

Art. 18 is only relevant if the court is competent for the main issue and not only concerned with a 20 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.39 In the event that no court in the entire EU would have jurisdiction pursuant to the yardsticks estab- 21 lished by the Brussels IIbis Regulation Art. 18 does not require the court seised to dismiss the case.40 Instead, the court seised is invited to assess as to whether its own jurisdiction could be established by virtue of Arts. 6; 7 or Art. 14 respectivley, each in conjunction with national law.41

III. Examination ex officio 1. Examination of jurisdiction The court must not wait for an application by either party to examine or review its jurisdiction.42 Art. 18 obliges the court to do so on its own motion, i.e. ex officio.43 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.44 In particular, the respondent is not required to invoke lack of jurisdiction.45 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 re34 35 36 37 38 39 40 41 42 43 44 45

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); Gruber in Nomos Kommentar BGB, Art. 17 note 2; Schäuble in Althammer, Art. 17 note 5. 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. Gruber in Nomos Kommentar BGB, Art. 17 note 1; Hausmann, A note 103; Schäuble in Althammer, Art. 17 note 1.

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Art. 18 Brussels IIter Examination as to jurisdiction quired 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 forum46 or not if Art. 18 did not exist. In the event of the defendant alleging and invoking lack of jurisdiction no recourse to national law should be held, though.47 The shape of zthe ensuing decision is governed by the lex fori anyway.48 23

The most important aspect ought to be stressed and emphasised again: Art. 18 establishes an 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.49 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.50 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.

24

If the application has already reached a higher court by way of appeal, national law generally might venture to impose restrictions as to whether higher courts are allowed to (re-) examine jurisdiction. Yet Art. 18 is binding upon higher courts unequivocally. Whether the court is at first, second or even third instance it has to comply with Art. 18.51 EU law is of a higher rank than national law. Hence, such restrictions if existing would be blasted away by Art. 18 in cases falling within the scope of the Brussels IIter Regulation.52 2. Ascertaining (and proving) facts

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One has clearly to distinguish between the legal examination as such on one hand and ascertaining the facts underlying such examination on the other hand. Art. 18 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. 18 does not ask the court to investigate the facts of its own motion.53 The Community rule does not go that far.

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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 seised.54 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.55 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.56 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. 18. 46 47 48 49 50 51 52 53 54 55 56

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.); AB v. BC (Children) (2020) EWHC 162 (Fam) (59), (2020) 2 FLR 312 (F.D., Russell J.). Rogers-Headicar v. Headicar (2005) 2 FCR 1, 5 (C.A., per Thorpe L.J.). Dilger in BBGS, Art. 17 note 1 (2005). 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; 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; 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.

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As can be already discerned from Art. 6 (2) it follows from Art. 18 that under the Brussels IIter 27 Regulation in principle the court cannot assume jurisdiction only on the basis that the respondent continues with the trial without contesting jurisdiction.57 In general, there is nothing like a tacit submission under the Brussels IIter system. The term “recognition of jurisdiction” in Art. 12 (1) (b) Brussels IIbis Regulation had to be interpreted extensively so that that article established a very restricted exception from the principle stated. However, Art. 12 Brussels IIbis Regulation has not been retained in the Brussels IIter Regulation. Art. 18 does not presuppose for an examination by the court of its own motion and ex officio that the respondent does not enter an appearance, in any event.58

IV. Consequences Pursuant to Art. 18 the court must declare that it has no jurisdiction to entertain the pending pro- 28 ceedings. The wording of Art. 18 is absolutely clear and unambiguous in this regard.59 Such declaration has to be distinguished from any ruling as to substance.60 It is the judge’s responsibility to ensure that the appropriate declaration is made.61 Due to the hierarchical priority of the Regulation, this applies regardless whether such declaration would be permitted under national law.62 Art. 18 conveys and establishes the necessary jurisdictionfor issuing the declaration.63 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.64 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 to sub- 29 stance, 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.65 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 decalaration would refer only to the concrete proceedings pending before the single court second seised.66 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 seised in another Member State has not dismissed the case before it.67

57 Van Den Eeckhout in van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 85. 58 Van Den Eeckhout in van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 90. 59 Kerstin Sundelind Lopez v. Miguel Enrique Lopez Lizazo (Case C-68/07), (2007) ECR I-10405, I-10414 para. 19. 60 See Child and Family Agency v. RD (2014) IESC 47 (16) (S.C. Ireland, ct. judgm. per O’Donnell Donal J.). 61 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.). 62 Child and Family Agency v. CJ (2015) IECA 86 (39), (2015) 2 ILRM 412, 429 (CA Ireland, per Finlay Geoghegan J.). 63 Child and Family Agency v. CJ (2015) IECA 86 (32), (45), (2015) 2 ILRM 412, 429, 431 (CA Ireland, per Finlay Geoghegan J.). 64 See only OGH EvBl 2009/41 with note Frauenberger-Pfeiler = iFamZ 2009/53 with note Fucik; Simotta in Fasching/Konecny, Art. 17 note 7. 65 Rauscher in Rauscher, Art. 17 note 14. 66 Child and Family Agency v. CJ (2015) IECA 86 (47), (2015) 2 ILRM 412, 431 (CA Ireland, per Finlay Geoghegan J.). 67 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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The national law of the forum determines as to whether an appeal against the final decision of the court respective instance is permissible or not. For instance, in Germany the Beschwerde pursuant to § 612e (1) ZPO would be permissible.68 Its prospects of course depend on the merits on the complaint. If national law establishes the first instance as the only and final instance so be it, too.

31

The Brussels IIter 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.69 The dismissal for lack of jurisdiction is a purely negative decision,70 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. 12.71

32

Art. 18 does not urge on the court dismissing the case pending before it, to pronounce which jurisdiction it deems competent.72 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 seised has to dismiss its case if already another jurisdiction would be competent.73

33

A determination that the present forum lacks jurisdiction pursuant to Art. 18 to determine care proceedings does not leave it bereft of jurisdiction to marke interim orders under the circumstances envisaged by Art. 15.74

V. Negativer Kompetenzkonflikt 34

Strictly sticking to the wording, Art. 18 does not concern the case that neither the court seised 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. 18, namely that the court seised itself lacks jurisdiction under the Regulation, as referring to Arts. 3–5; 6 (2) or 8–13 only, Art. 6 (1) or Art. 14 respectively could come to the rescue.75 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 seised competent the court has to dismiss the application anyway. In any event, Art. 18 does not vest jurisdiction in any court be it a court in another Member State be it the court seised itself.76

68 Borth in Musielak, ZPO (10th ed. 2011) Art. 17 note 1. 69 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. 70 See Simons in Corneloup, Art. 17 note 19. 71 A v. Perusturvalautakunta (Case C-523/07), (2009) ECR I-2805, I-2850 paras. 53–56. 72 Dilger in BBGS Art. 17 note 5; Dilger, para. 320; Simotta in Fasching/Konecny, Art. 17 note 9. Contra Puszkajler, IPRax 2001, 79, 83. 73 Simotta in Fasching/Konecny, Art. 17 note 9. 74 Child and Family Agency v. CJ (2016(IESC 51 (24) (S.C. of Ireland, per O’Donnell J.); (2015) IECA 86 (32), (2015) 2 ILRM 412, 426 (CA Ireland, per Finlay Geoghegan J.); Harding in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), p. 339, 345. 75 Vogel, MDR 2000, 1045, 1048; cf. also Rauscher in Rauscher, Art. 17 note 10. 76 Spellenberg in FS Reinhold Geimer zum 65. Geb. (2002), p. 1257, 1278; Rauscher in Rauscher, Art. 17 note 10.

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Article 19 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. 1393/2007 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. 1393/2007 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. I. Ratio legis: Guarantee of an effective defence to the respondent . . . . . . . II. Systematic structure . . . . . . . . . . . 1. Connecting factors employed . . . . . . 2. Systematic relationship between the paragraphs . . . . . . . . . . . . . . . . .

. . . . . . . . .

1 3 3

. . .

6

III. Respondent . . . . . . . . . . . . . . . . . . . 10 IV. Respondent’s habitual residence outside the forum state . . . . . . . . . . . . . . . . . 12 1. Generalities . . . . . . . . . . . . . . . . . . . 12 2. Respondent habitually resident outside the EU . . . . . . . . . . . . . . . . . . . . . . 14

3. Respondent habitually resident in the forum state . . . . . . . . . . . . . . . . . . . . . . . . 16 4. Unknown residence of the respondent . . . . 18 V. Relevant documents and timely reception . 19 VI. Lack of appearance by the respondent . . . 22 VII. Service of the document instituting the proceedings . . . . . . . . . . . . . . . . . . . VIII. Consequences . . . . . . . . . . . . . . . . . . 1. Mandatory stay of proceedings . . . . . . . . 2. Continuation in the event of proper service 3. The case of initially deficient service . . . . .

26 36 36 38 39

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; Vitellini, 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. Ratio legis: Guarantee of an effective defence to the respondent Art. 19 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. 19 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 with a view to the recognition of the future judgment in other Member States, regard must be had to the ground of refusal pursuant 1 See only Rauscher in Rauscher, Art. 17 note 6; Hausmann, A note 107. 2 Report Borrás, para. 50; Dilger in BBGS, Art. 18 note 1 (2005). 3 Finger, JR 2001, 177, 179.

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Art. 19 Brussels IIter Examination as to admissibility to Art. 38 (b) or Art. 39 (1) (b) 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. 19 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. 19 is applicable in parental responsibility proceedings.7 But it does not apply in purely domestic cases, for lack of EU competence under Art. 81 TFEU.8

II. Systematic structure 1. Connecting factors employed 3

Art. 19 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. 19.

5

Whereto and to which State a document must be transmitted depends not only on the 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

6

(2) takes precedence to (3).10 This is only logical and consequential since Art. 20 (1) Service Regulation expressly gives the Service Regulation precedence to the Hague Service Convention. Accordingly, in practice (2) becomes the predominant rule when it comes down to service outside the forum state.

7

(2) and (3) in turn take precedence to (1). (1) is a subsidiary rule only.11 Insofar as service 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 4 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). 5 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. 6 See Schoibl in FS Rolf A. Schütze zum 65. Geb. (1999), p. 777, 780; Mankowski in Rauscher, Art. 28 Brüssel Ia-VO note 1. 7 Hausmann, B note 202. 8 Spellenberg in FS Peter Gottwald (2014), p. 607, 614; Simons in Corneloup, Art. 18 note 6. 9 Mankowski in Rauscher, Art. 28 Brüssel Ia-VO note 9a. 10 See only Hausmann, A note 108. 11 See only Hausmann, A note 108.

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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 Brussels IIbis 8 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 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 mains 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

III. Respondent Who is the respondent has generally to be determined formally, i.e. by the formal denomination in a given set of proceedings instituted by the applicant. In matrimonial proceedings, matters are clear in principal. There the other spouse from which 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. 19 does not apply consequentially.13

10

Yet in many Member States, proceedings in matters of parental responsibility can be established by 11 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. 19 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. 19 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 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 200016. 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.

12

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

13

12 To the same avail Rauscher in Rauscher, Art. 18 note 10; Schäuble in Althammer, Art. 18 note 7. 13 Simotta in Fasching/Konecny, Art. 18 note 8. 14 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. 15 COM (1999) 220 final. 16 COM (2000) 151 final.

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Art. 19 Brussels IIter Examination as to admissibility 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 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.

15

But in fact the true sister rules are in line with each other in this regard.20 Meticulous and 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

16

The respondent domiciled in the forum state itself is not protected, anyway. This is a remarkable difference in detail from the approach taken in Arts. 22 (b); 23 (c).21 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.

17

But more probably, it is only due to some drafting error that the respondent habitually resident in the forum state is not included and not protected:22 Arts. 20 (1) Brussels Convention; 26 (1) 2007 Lugano Convention; 28 (1) Brussels Ibis Regulation deal with situations where Arts. 18 Brussels Convention; 24 2007 Lugano Convention; 26 (1) Brussels Ibis 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 2007 Lugano Convention; 24 Brussels Ibis Regulation – be based on Arts. 2 (1) Brussels Convention or 2007 Lugano Convention; 4 (1) Brussels Ibis Regulation respectively. But the second paragraphs of Arts. 20 Brussels Convention; 26 2007 Lugano Convention; 28 Brussels Ibis Regulation do not refer to the respective first paragraphs and do not import the restriction by way of 17 Spellenberg in Staudinger, Art. 18 note 4; Dilger in BBGS, Art. 18 note 3 (2005); Hausmann, A note 110, B note 204. Contra Gruber in Nomos Kommentar BGB, Art. 18 note 3. 18 Dilger in BBGS, Art. 18 note 3 (2005). 19 Dilger in BBGS, Art. 18 note 3 (2005). 20 See also Gruber in Nomos Kommentar BGB, Art. 18 note 3. 21 Spellenberg in FS Peter Gottwald (2014), p. 607, 616 affirms this. 22 Tentatively shared by Spellenberg in FS Peter Gottwald (2014), p. 607, 617.

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reference. The restriction to be found in (1) thus does not find its counterpart in Arts. 20 (2) Brussels Convention; 26 (2) 2007 Lugano Convention; 28 (2) Brussels Ibis Regulation. It fits very ill here under (1) since Art. 19 does on purpose not contain a counterpart to Arts. 20 (1) Brussels Convention; 26 (1) 2007 Lugano Convention; 28 (1) Brussels Ibis Regulation. To read the first and second paragraphs of Arts. 20 Brussels Convention; 26 2007 Lugano Convention; 28 Brussels Ibis 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/2007 Lugano Convention and nowadays Art. 28 (2) Brussels Ibis Regulation do. 4. Unknown residence of the respondent Art. 19 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. 19 cannot apply in this scenario.23 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.24 Where such efforts have been undertaked, 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.25

18

V. Relevant documents and timely reception The terms “document instituting the proceedings” and “to receive in sufficient time” have to be in- 19 terpreted corresponding to, and in the light of, originally, Art. 34 (2) Brussels I Regulation and now Art. 45 (1) (b) Brussels Ibis Regulation plus, 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. The document instituting the proceedings therefore means the document provided by the law of the forum to bring the proceedings to the notice of the respondent first time by its service.26 Such document has to contain the essential elements of the legal action and therefore the essential cause for the application27 enabling the respondent to make an informed decision as to whether to defend his case or to enter an appearance.28 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 23 Spellenberg in FS Peter Gottwald (2014), p. 607, 609; Simons in Corneloup, Art. 18 note 16. 24 Hypotecˇní 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. 25 Hypotecˇní 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; Spellenberg in FS Peter Gottwald (2014), p. 607, 609; Simons in Corneloup, Art. 18 note 15. 26 Kropholler/von Hein, Art. 34 EuGVVO note 29 with further references; cf. for further details Frank, Das verfahrenseinleitende Schriftstück in Art. 27 Nr 2 EuGVÜ, Lugano-Übereinkommen und in Art. 6 Haager Unterhaltsübereinkommen 1973 (1998). 27 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. 28 BGHZ 141, 286.

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Art. 19 Brussels IIter Examination as to admissibility strives for such aims should be contained in the document insofar as required (and permitted) by the lex fori. 21

The document instituting the proceedings is received in sufficient time if the respondent is enabled and in a position to arrange for an appropriate defence taking into account the particular circumstances of the case.29 This is a functional approach avoiding any necessity to hold recourse to the lex fori.30 The matter is one of fact rathe rthan of law.31

VI. Lack of appearance by the respondent 22

For Art. 19 to become operative the respondent must not enter an appearance. Lack of 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. 19 is modelled.32 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.

23

If the respondent enters an appearance but does not reply anything substantial this does not trigger Art. 19. An appearance remains an appearance regardless of its content, the notion being a formal one.

24

An appearance does not require that the respondent replies as to substance, though. Notwithstanding 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 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.33

25

Matters are different yet again if the respondent enters an appearance in order to raise the objection that the court seised lacks jurisdiction. Art. 19 aims at protecting fair trial, not the rules on jurisdiction. Hence, in this scenario the court has to apply not Art. 19, but Art. 17 and has to examine its jurisdiction.34

VII. Service of the document instituting the proceedings 26

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 (EC) No 1393/ 2007 apply but for Denmark who has deplorably opted out of Title IV of the TFEU completely and has not even kept the backdoor open to creep in by a mere opt-in. Yet the then EC and Denmark

29 OLG Hamm, RIW 1987, 871; OLG Köln, NJW-RR 1995, 446, Kropholler/von Hein, Art. 34 EuGVVO note 34. 30 But favouring such recourse (wothout any material difference as to the eventual outcome) Rauscher in Rauscher, Art. 18 note 17; Schäuble in Althammer, Art. 18 note 11. 31 Hausmann, A note 113. 32 See only Rauscher in Rauscher, Art. 18 note 8; Simotta in Fasching/Konecny, Art. 18 note 4; Simons in Corneloup, Art. 18 note 7. 33 Dilger in BBGS, Art. 18 note 2 (2005); Spellenberg in Staudinger, Art. 18 note 15; 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. 34 Dilger in BBGS, Art. 18 note 2 (2005); Gruber in Nomos Kommentar BGB, Art. 18 note 2; Simotta in Fasching/Konecny, Art. 18 note 6.

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have concluded a bilateral Agreement35 transferring the substance of the Service Regulation. Denmark has duly implemented this Agreement.36 The original Service Regulation, Regulation (EC) No.1348/2000, has been superseded by Regulation (EC) No.1393/2007.37 This does not pose any major problem. (2) must be read as referring not to the repealed Art. 19 Regulation (EC) No.1348/2000 anymore, but to its successor, Art. 19 Regulation (EC) No.1393/2007.

27

The current Art. 19 Service Regulation reads:

28

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: (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. 2. 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. 3. Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures. 4. 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. 5. Paragraph 4 shall not apply to judgments concerning the status or capacity of persons. 35 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 aso 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. 36 OJ EC 2007 L 94/70; 2009 L 331/21. 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.

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In the course of Europeanisation of international procedural law, Art. 19 is by virtue of (2) 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.

30

Pursuant to (3), in other instances the service has to accord with Art. 15 of the Hague Service 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.38 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 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”.39 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.

31

The list of Contracting States of the Hague Service Convention which are not Member States of the Service Regulation or the EU, comprises:40 Albania; Antigua and Barbuda; Argentina; Armenia; Australia; the Bahamas; Barbados; Belarus; Belize; Bosnia and Herzegovina; Botsuana; 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 Moldawia; the Russian Federation; San Marino; Serbia; the Seychelles; Sri Lanka; St. Vincent and Grenadines; Turkey; Ukraine; USA; Venezuela; Viet Nam.

32

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.

33

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 Nether38 Hüßtege in Thomas/Putzo, Art. 18 note 4. 39 Emphasis added. 40 See the actual status http://www.hcch.net/en/instruments/conventions/status-table/?cid=17.

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lands, Portugal, Slovakia, Spain, the United Kingdom and Cyprus.41 The Contracting States which are non-Member States of the EU, but have foled such declaration, can be named as:42 Antigua and Barbuda; Argentina; Australia; Botsuana; 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 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.43 This keeps the line with Arts. 22 (b); 23 (c); 31 (2) where such a differentiation does not occur, either.44

34

For the details of service under Art. 19 Service Regulation or Art. 15 Hague Service Convention, the 35 commentaries specifically dedicated to these rules should be consulted.45 Particularities which would only unearth in the present context of the Brussels IIbis Regulation, have not been observed yet46 insofar as service upon a named respondent is at stake.47

VIII. Consequences 1. Mandatory stay of proceedings (1) urges the court to stay the proceedings until proper service has been established and evidenced. 36 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.48 On the other hand, a stay still is only a temporary and interim measure; it must not be 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.

37

2. Continuation in the event of proper service If the court reaches the conclusion and asserts that the document instituting proceedings was prop- 38 erly 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.

41 42 43 44 45 46 47

http://www.hcch.net/en/instruments/conventions/status-table/?cid=17. 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). 48 Rauscher in Rauscher, Art. 18 note 12; Schäuble in Althammer, Art. 18 note 9.

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Art. 20 Brussels IIter Lis pendens and dependent actions 3. The case of initially deficient service 39

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).

40

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.

41

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 20 Lis pendens and dependent actions 1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are instituted before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Except where the jurisdiction of one of the courts is based solely on Article 15, where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are instituted before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of the court first seised. In that case, the party who instituted proceedings before the court second seised may bring those proceedings before the court first seised. 4. Where a court of a Member State on which an acceptance of jurisdiction as referred to in Article 10 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance. 5. Where and to the extent that the court has established exclusive jurisdiction in accordance with an acceptance of jurisdiction as referred to in Article 10, any court of another Member State shall decline jurisdiction in favour of that court. I. General considerations . . . . . . . . . . .

1

II. Lis pendens and Third States . . . . . . . III. Interrelated actions relating to divorce, legal separation or marriage annulment, (1) . . . . . . . . . . . . . . . . . . . . 1. General considerations . . . . . . . . . . .

18

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23 23

2. 3. 4. 5.

Identity of the parties . . . . . . . . . . . . Colliding causes of action . . . . . . . . . “False lis pendens” . . . . . . . . . . . . . . Conflict between separation and divorce proceedings . . . . . . . . . . . . . . . . . . a) Precedence of the earlier separation proceedings? . . . . . . . . . . . . . . . .

26 30 35 38 38

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6. IV. 1. 2. 3. V.

b) Tentative vote against an approach favouring the more severe result . . . c) Lack of a core issue theory . . . . . . . d) Coordination with res iudicata . . . . e) The uneasy case of the vanishing Art. 11 (2) Brussels II Regulation . . . First seised . . . . . . . . . . . . . . . . . Identical matter of parental responsibility, (2) . . . . . . . . . . . . . . . . . . Same child or same children concerned Same “cause of action” . . . . . . . . . . Exception in cases of Art. 15 . . . . . . . Consequence: mandatory stay . . . . . .

. . .

42 43 44

. .

45 51

2.

3. . . . . .

VI. Further consequences depending on acceptance of, or declining, jurisdiction by the court first seised, (3) . . . . . . . . . . 1. Transformation of stay into dismissal in the event of the court first seised accepting its jurisdiction . . . . . . . . . . . . . . a) Mandatory dismissal . . . . . . . . . . . b) Decision by the court first seised on its jurisdiction . . . . . . . . . . . . . . . . aa) Generalities . . . . . . . . . . . . . bb) Appeal pending against any decision . . . . . . . . . . . . . . . . cc) Stay by the court first seised for want of jurisdiction . . . . . . . . . c) Overcoming informational difficulties .

56 58 60 63 64

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Art. 20 Brussels IIter

d) Continuous collision of proceedings . . e) Declining jurisdiction and later applications . . . . . . . . . . . . . . . . . . . . f) Cooperation under Arts. 12; 13 . . . . . Continuation of proceedings before the court second seised after the court first seised declined jurisdiction . . . . . . . . “False transfer” of the case by virtue of the second clause of (3) . . . . . . . . . . . a) The model employed by (3) 2nd sentence as opposed to a genuine transfer . b) Consequential questions . . . . . . . . . Choice of court and consequences for lis pendens, (4) and (5) . . . . . . . . . . . . . Generalities . . . . . . . . . . . . . . . . . . Art. 31 (2), (3) Brussels Ibis Regulation as role model . . . . . . . . . . . . . . . . . Analogy to Art. 31 (4) Brussels Ibis Regulation? . . . . . . . . . . . . . . . . . .

86 88 89

90 96 96 103 109 109 111 116

68 68

VIII. Anti-suit injunctions . . . . . . . . . . . .

117 119

73 73

IX. Relation between Art. 20 and Art. 15 . . . X. Alleviation by the European Judicial Network? . . . . . . . . . . . . . . . . . . .

122

76

XI. Conflicting matrimonial and ancillary civil proceedings . . . . . . . . . . . . . . .

124

80 83

XII. Violation of Art. 20 does not constitute a justification for refusal of recognition . .

129

Bibliography: Andrae, Anerkennung und Vollstreckung von Entscheidungen sowie die Beachtung der früheren Rechtshängigkeit nach der EheVO (Brüssel II-Verordnung), ERA-Forum 1/2003, 28; Geimer, Lis pendens in der Europäischen Union, in: FS Hans Jürgen Sonnenberger (2004), p. 357; U. P. Gruber, Die „ausländische Rechtshängigkeit“ bei Scheidungsverfahren, FamRZ 1999, 1563; U. P. Gruber, Die neue „europäische Rechtshängigkeit bei Scheidungsverfahren“, FamRZ 2000, 1129; U. P. 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 DaphneAriane Simotta (2012), p. 437; R. Wagner, Ausländische Rechtshängigkeit in Ehesachen unter besonderer Berücksichtigung der EG-Verordnungen Brüssel II und Brüssel II a, FPR 2004, 286.

I. General considerations Art. 20 copies Art. 19 Brussels IIbis Regulation virtually to the letter and without material changes.1 It corresponds to, and heavily borrows from, Art. 21 Brussels Convention,2 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.3 All those rules are intended to

1 Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 25. 2 See only Cassaz. RDIPP 2005, 424, 426; Mostermans, NIPR 2001, 293, 300. 3 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 27.

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1

Art. 20 Brussels IIter Lis pendens and dependent actions prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom.4 2

Recital (38) neatly summarizes the underpinning policy: (38) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable decisions will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously. However, in order to enhance the effectiveness of exclusive choice-of-court agreements, the provisions of this Regulation on lis pendens should not stand in the way where parents confer exclusive jurisdiction on the courts of a Member State.

3

The objective of Art. 20 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.5 Likewise, (2) shall prevent decisions which are incompatible.6 To promote the recognition and enforcement of judgments is one of the fundamental aims of the entire regime, and the lis pendens provisions are a part of central importance to the scheme under which this is to be achieved.7 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.8

4

Possible conflict is solved by Art. 20 establishing a basic principle of prior temporis (and not by a concept as vague as that of the court better suited).9 Qui prior est tempore potior est iure.10 Seisin is the gateway to establishing which proceedings take precedence.11 Chronological order rules.12 The proceedings before the court first seised take precedence to all other competing actions. Strict chronological precedence reigns.13 This had the edge of simplicity at the outset14 and is deeply rooted in mutual respect between Member States.15 It is a hard and fast rule.16 It establishes a tie-break rule17 clear and effective,18 as clear-cut, as precise and as black-letter fixed as possible.19 Art. 20 is abun-

4 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; MH v. MH (Case C-173/16), ECLI:EU:C:2016:452 para. 22. 5 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. 6 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 67. 7 A-G Bot, Opinion of 6 September 2018 in Case C-386/17, ECLI:EU:C:2018:670 para. 39; DT v. FL (2007) I.L.Pr. 763, 793 (H.C., McKechnie J.); Vitellino in Malatesta/Bariatti/Pocar, p. 221, 226; Barrière Brousse, Clunet 2019, 1235, 1239. 8 Mittal v. Mittal (2013) EWCA Civ 1255 (35), (2014) Fam. 102, (2014) 1 FLR 1514 (C.A., per Lewison L.J.). 9 Mostermans, NIPR 2001, 293, 300; Crône, Defrénois 2015, 117, 122; Niel/Morin, Petites Affiches n°66, 3 avril 2017, 10, 11. 10 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. 11 Re M (BIIa Article 19: Court First Seised) (2018) EWCA Civ 1637 (61), (2019) 1 FLR 741, (2018) 3 FCR 405 (C.A., per Peter Jackson L.J.). 12 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 30. 13 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.). 14 Bailey-Harris/Wilson, (2016) Fam. L. 568, 570; Bailey-Harris/Wilson, (2016) Fam. L. 692, 693. 15 Bailey-Harris/Wilson, (2016) Fam. L. 692, 693. 16 Althammer in Althammer, Art. 19 note 3. 17 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.). 18 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. 19 Vitellini in Malatesta/Bariatti/Pocar, p. 221, 225.

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dantly clear for the court second seised.20 It does not permit the court second seised to ponder, and to tamper with, as to which set of proceedings might have the more extensive cause.21 Any kind of forum non conveniens doctrine is ruled out22 (but for a small remainder in Art. 15). A time-consuming search for a materially founded solution of the conflict is ruled out in order to generate and foster legal certainty.23 Indubitably, Art. 20 has to be read purposively and not as tightly as one might read a national statute.24 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.25 A court must not be seen to take opportunities for usurping the function of the judge in another Member State.26 Once another jurisdiction is demonstrated to be apparently first seised, 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.27 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.28 For instance, Art. 20 (2), (3) have to be read in the light of Recitals (12) and (13).29

5

Effectively, Art. 20 establishes a race with the winner being the one who commences the proceedings 6 first.30 The central advantage of such a somewhat arbitrary, but iron31 rule is simplicity and certainty, with consequent reduction or elimination of expensive and superfluous litigation in two jurisdictions.32 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.33 The framers and drafters put their faith in the simplicity, certainty and practicability of a rule of chronological priority.34 Simple chronology rules.35 A clear and workable rule might be deemed far better than an opaque, if doctrinally purer, rule.36 For instance, the court second seised must not speculate as to whether any decision eventually rendered by the court first seised would be recognised in the Statte of the court second seised.37 Yet in cases with an international dimension the temptation on the parties first to manoeuvre and 7 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.38 Evidently, Art. 20 does not strike out such possibilities, but on the contrary fosters and enhances them. It gives great if not giant incentives for 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

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.). Wermuth v. Wermuth (No. 1) (2003) 1 FLR 1022, 1023 (F.D., Bracewell J.). 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 MH v. MH (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); Gruber, FamRZ 2000, 1129, 1132; Geimer in Zöller, Art. 19 note 2; Althammer in Althammer, Art. 19 note 2. Wermuth v. Wermuth (No. 2) (2003) 1 FLR 1029, 1037 et seq. (C.A., per Thorpe L.J.).

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Art. 20 Brussels IIter Lis pendens and dependent actions forum shopping.39 In the context of the Brussels I/Ibis Regulations it might be said that although Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation encourage 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.40 But in the context of the Brussels IIter 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 gigantic battles) have dramatic consequences in financial consequences.41 This is alleged to be an utter unfairness of Brussels IIter in the field of lis pendens.42 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.43 8

Art. 20 does not stand to be construed in isolation, but in its context in the Regulation as a whole, and in particular within Chapter II, which concerns jurisdiction, though.44 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. 20.45 Like Art. 21 Brussels Convention, Art. 20 does not require the jurisdictional rules of the Brussels IIter Regulation to be applicable in order to become operative.46

9

The issue of a collision with proceedings before religious authorities47 can only arise if and and insofar the law of a Member State integrates the respective religious authority into its own judicial system, evelvating such authority to the status of a ‘court’ in the sense of Art. 2 pt. 1.

10

Art. 20 does not presuppose that the future judgment of the court first seised carries with the positive affirmation that it will be recognised and enforced once it is rendered, either.48 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. 20. Technically, it is only required that the decision of the court first seised asserting jurisdiction is final.49

11

Whereas the barring effect of lis pendens is judged exclusively by virtue of Art. 20, the res iudicata effect of the judgment handed down by the court first seised has to be determined pursuant to the lex fori of the court first seised50 Therefore, the barring effect of a competing action may, by Art. 20, 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).

39 See only Baruffi in Bariatti (ed.), La famiglia nel diritto internazionale privato comunitario (Milano 2007), p. 175, 200 et seq. 40 Baatz, (2004) LMCLQ 25, 28. 41 Malatesta in Corneloup, Art. 19 note 3. 42 Hodson, (2007) Fam. L. 1099, 1103. 43 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 42; see also A-G Cruz Villalón, Opinion of 8 September 2015 in Case C-489/14, ECLI:EU:C:2015:559 para. 94. Sceptical Hilbig-Lugani, GPR 2016, 132, 135–136. 44 C v. FC (Brussels II: Free-standing application for parental responsibility) (2004) 1 FLR 317, 328 (F.D., Judge Rex Tedd Q.C.). 45 Wermuth v. Wermuth (No. 1) (2003) 1 FLR 1022, 1028 (F.D., Bracewell J.); Uccella, Vita not. 2006, 1261, 1266. 46 See Geimer in FS Robert Schweizer (1999), p. 175, 176. 47 An example under French domestic rules is provided by Cass. Petites Affiches n°66, 3 avril 2017, 10 with note Niel/Morin; discussed by Dorange, Lamy actualité 25 janvier 2017; Berlaud, Gaz. Pal. 31 janvier 2017, 32; Mélin, Dalloz actualité 1 février 2017. 48 See only Hau, FamRZ 2000, 1333, 1339; Hausmann, A note 124; Henrich, para. 21; Gruber in Nomos Kommentar BGB, Art. 19 Brüssel IIa-VO note 15; Hüßtege in Thomas/Putzo, Art. 19 note 1; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren, in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 7. 49 See only Gruber, FamRZ 2000, 1129, 1133; Rolf Wagner, FPR 2004, 286, 288; Henrich, para. 21. 50 Gruber, FamRZ 2000, 1129, 1134.

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Similar to Arts. 29 Brussels Ibis Regulation; 27 Brussels I Regulation; 21 Brussels Convention51, the 12 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 seised is irrelevant. Thus, taking lis pendens prevailing into consideration does by no means hinge upon whether the rivalling judgment can be apprehended to be recognised.52 Despite the impression which the heading by expressly adding “dependent actions” to “lis pendens” 13 might convey, it cannot be affirmatively asserted with absolute clarity and security that Art. 20 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. 20 coins them) and “related actions” in the terminology used by Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation; 22 Brussels Conventions. It goes without saying that Art. 20 can only come into operation and only bear real meaning if there 14 are proceedings which can be properly described as ‘existing’ before a court at the relevant date.53 For a court to be seised of a matter, there must in fact be existing proceedings before it.54 Concurring proceedings do only exist if they are pending simutaneously.55 To construe Art. 20 in any other way is potentially to make a nonsense of it by a court being seised 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 A hiatus is a hiatus and reverses the order of precedence if the proceedings once terminated are recommenced later-on.58 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.59 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. If the courts of one Member State, originally first seised, have declined jurisdiction or have else dismissed the case in a final appeal judgment, the court originally second seised steps up and is not obliged to decree a stay anymore snce the proceedings pending before it have become the only set of proceedings still pending.60 Art. 20 has as a general prerequisite that both sets of proceedings are still pending,61 else there could not be a conflict and collision to be solved by virtue of Art. 20. 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. 30 as to whether the Brussels IIter 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 51 52 53 54 55 56 57 58 59 60 61

BGH, NJW 1995, 1758, OLG Köln, NJW 1991, 1427. Hau, FamRZ 1999, 484, 487, 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.). A v. B. (Case C-489/14), ECLI:EU:C:2015:654 para. 37); Ilaria Giusti v. Ferruccio Ferragamo (2019) EWCA Civ 691 (56), (2019) 2 FLR 261, (2019) 2 FCR 827 (C.A., per Moylan L.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.). Cf. Re M (BIIa Article 19: Court First Seised) (2018) EWCA Civ 1637 (59), (2019) 1 FLR 741, (2018) 3 FCR 405 (C.A., per Jackson L.J.). Contra Mercredi v. Chaffe (2011) EWCA Civ 272, (2011) 2 FLR 515, 532 (98) (C.A., per Elias L.J.). LM v. KD (2018) EWHC 3057 (104)-(105), (2019) 1 FLR 1071, (2019) 1 FCR 669 (F.D., Baker L.J.); Emmanuel Guinchard, RTD eur. 215, 799; Chalas, RCDIP 2016, 387, 391. See only Derby City Council v. SK (2015) EWFC 57 (27), (2016) 2 FLR 12 (F.C., Keehan J.); Idot, Europe Décembre 2015, 50.

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Art. 20 Brussels IIter Lis pendens and dependent actions proceedings are still pending might determine the fate of these proceedings, and this might only happen if one denies that the Brussels IIter Regulation has rendered a final verdict against the recognition of dismissing decisions. Res iudicata might not operate either under Arts. 30 et seq. Brussels IIter 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. 16

Likewise, there are no competing proceedings and thus no alternative jurisdiction to which a court seised could possibly defer, if proceedings before a certain court have never been properly served on the respondent in those proceedings.62

17

Art. 20 operates only in the general confines of the Brussels IIter Regulation. Due to the general scope of application with regard to matrimonial proccedings 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,63 in particular with regard to matrimonial property (which are covered by the Matrimonial Property Regulation yet only as regards marriages concluded on or after 29 January 2019).

II. Lis pendens and Third States 18

Art. 20 is only applicable if both sets of proceedings are pending before courts in different Member States. Art. 20 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.64 The field is left to national rules on international lis pendens.65

19

In its Report, initiating the recast process, the Commission also mentioned Arts. 33; 34 Brussels Ibis Regulation as potential templates for reform in a then future Brussels IIter Regulation.66 This would have established a European regime for the hitherto uncovered67 field of staying proceedings with regard to parallel proceedings pending in a Third State.68 But the reform agenda did not pursue such plans any further, as is evidenced by the lack of any such reflection in the Proposal. The Brussels IIter Regulation remains silent on the issue.69 62 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.). 63 OGH SZ 2011/56; Hausmann, A note 122. 64 See only OGH unalex AT-799; Cass. 24 juin 2020 – nos 19.11-714, 19.–11.870, JurisData n° 2020-008806 (note Farge, JCP G 2020, 1303); KG, FamRZ 2016, 836 with note Geimer; OLG Hamm, IPRax 2018, 263, 265; Hof ’s-Hertogenbosch NIPR 2010 Nr. 404 p. 673; 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, (2011) 2 FCR 33 (F.D., Deputy Judge Theis Q.C.); ER v. BF (2018) EWFC 18 (23), (2018) 3 FCR 846 (F.C., Baker J.); 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; Scott, (2010) Fam. L. 740; Frankle, (2014) IFL 17; Bantekas, (2014) IFL 30; 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; Andrae, IPRax 2018, 243 at 243–245; Juárez Pérez, CDT 12 (1) (2020), 610, 618. 65 E.g. Hof Amsterdam NIPR 2020 Nr. 146 p. 290; Hof ’s-Hertogenbosch ECLI:NL:GHSHE:2020:638. 66 Commission Report on the application of Brussels IIbis, COM (2014) 225 final p. 9. 67 See only OGH unalex AT-799; Cass. 24 juin 2020 – nos 19.11-714, 19.-11.870, JurisData n° 2020-008806 (note Farge, JCP G 2020, 1303); KG, FamRZ 2016, 836 with note Geimer; OLG Hamm, IPRax 2018, 263, 265; Hof ’s-Hertogenbosch NIPR 2010 Nr. 404 p. 673; 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, (2011) 2 FCR 33 (F.D., Deputy Judge Theis Q.C.); ER v. BF (2018) EWFC 18 (23), (2018) 3 FCR 846 (F.C., Baker J.); 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; Andrew Scott, (2010) Fam. L. 740; Frankle, (2014) IFL 17; Bantekas, (2014) IFL 30; 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; Andrae, IPRax 2018, 243 at 243–245; Juárez Pérez, CDT 12 (1) (2020), 610, 618. 68 Jonathan Hill/Ní Shúilleabhán, Clarkson & Hill’s Conflict of Laws (5th ed. 2016) para. 8.34.

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Yet the silence is telling. The missing counterpart to Arts. 33; 34 Brussels Ibis Regulation70 even after 20 the recasting process serves as a strong argumentum e contrario that the Brussels IIter Regulation shall not contain respective rules and does not address lis pendens as regards collisions with proceedings in Third States.71 Apparently, divorce and parental care are too sensitive matters than they could be compared to general civil and commercial matters in this regard, and the differences in values pursued in (at least certain) Third States are too big than to be overcome.72 Applying Arts. 33; 34 Brussels Ibis Regulation per analogiam73 would be too bold a step, now ignoring the fact that the Brussels IIter Regulation did not follow the lead of the Brussels Ibis Regulation in this regard albeit being of a later date.74 Furthermore, lis pendens mechanisms based on respect for the foreign proceedings should not overstretch mutual trust.75 Consequently, national rules apply to parallel proceedings in Third States,76 but only if and to the extent that they do not impair nor impede the full effectiveness of the European regime on jurisdiction.77 As a side note it should be mentioned that in practical resuls that oes not deviate too much from the approach pursued in Art. 33 (1) (a) Brussels Ibis Regulation.78 Art. 17 is believed not to be applicable, even not per analogiam.79 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 seised with consequential matters like maintenance claims earlier (for instance by virtue of Art. 27 2007 Lugano Convention) than it would be seised with the main proceedings.80 Whereas it might tentatively be in the line of Owusu81 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.82 English courts still were entitled to grant dis-

69 Clavel/Jault-Seseke, D. 2021, 923, 933; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 24. 70 On these rules e.g. Marongiu Buonaiuti, Riv. dir. int. 2011, 496; Marongiu Buonaiuti, YbPIL XV (2013/2014), 87; Marongiu Buonaiuti in Mankowski (ed.), Research Handbook on the Brussels Ibis Regulation (2020), p. 250; Franzina, RDIPP 2014, 23; Franzina, Dir. comm. int. 2014, 624; Carbone/Tuo in Ferrari/Ragno (eds.), Cross-border Litigation in Europe: the Brussels I Recast Regulation as a panacea? (2015), p. 1; Vitellino in Malatesta (a cura di), La riforma del Regolamento Bruxelles I (2016), p. 109; Penasa, Riv. dir. proc. 2018, 717; Tsikrikas in FS Herbert Roth (2021), p. 821, 827–834; Tichy´ in Trunk/Hatzimihail (eds.), EU Civil Procedure Law and Third Countries: Which Way Forward? (2021), p. 95. 71 See Juárez Pérez, CDT 12 (1) (2020), 610, 618 and also Dutta, FamRZ 2018, 131, 132. Cf. also under the Maintenance Regulation Re C (a child) (2021) EWFC 32 (57)-(58) (F.C., Munby J.). Yet contrast, in principle extending Arts. 33; 34 Brussels Ibis Regulation to the 2007 Lugano Convention by giving Art. 28 2007 Lugano Convention a reflexive effect, JSC Commercial Bank Privatbank v. Igor Kolomoisky et al. (2019) EWCA 1708 (178) (C.A., ct. judgment). 72 Mankowski in Garber/Lugani (ed.), Die Brüssel IIb-VO (2022) sub II B. 73 OLG Hamm, IPRax 2018, 263, 265 verbatim applies Arts. 33; 34 2007 Lugano Convention per analogiam. Yet these rules are on recognition, not on lis pendens; Dutta, FamRZ 2018, 131, 132; Andrae, IPRax 2018, 243 at 243. 74 Concurring in the result Prisching in Gitschthaler, Art. 16 note 4; Völker/Dimmler in Prütting/Gehrlein, Art. 16 note 1. 75 Van Calster, gavclaw.com 11 December 2019 https://gavclaw.com/2019/11/12/privatbank-v-kolomoisky-and-bo holiubov. 76 See only Amos/Dutta, FamRZ 2014, 444, 446; Streicher, FamRB 2017, 164, 165; Oldenburger, jurisPR-FamR 8/ 2017 Anm. 1 sub C; Dutta, FamRZ 2018, 131, 132; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), paras. 24, 31. 77 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. 78 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 24. 79 KG, FamRZ 2016, 836, 838. 80 Geimer, FamRZ 2016, 840, 841. 81 Andrew Owusu v. Nugent B. Jackson (Case C-281/02), (2005) ECR I-1383 paras. 37 et seq. 82 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.

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Art. 20 Brussels IIter Lis pendens and dependent actions cretionary stays in favour of third countries.83 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.84 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.85 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.86 22

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. 20 and consequentially to decline jurisdiction in favour of the court of the Member State which was second seised 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 23

(1) refers to applications for divorce, legal separation of marriage annulment, but does not cover any proceedings relating to parental responsibility.87 It is a one-hunderded percent continuation of Art. 19 (1) Brussels IIbis Regulation.88 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.89 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 after a certain period of time has lapsed in another jurisdiction), are irrelevant and do not matter.90 Complete identity of the cause is not required.91

24

It would be untenable that the courts of Member State A dissolve the marriage whereas the courts of Member State B uphold the very same marriage. Results could not be more strikingly contradictory and irreconcilable. Art. 20 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.

25

On the other hand, such contending actions in matrimonial matters must not lead to negative conflicts of jurisdiction.92 Therefore, the court later seised 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. 83 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). 84 Contra Jarmain, (2007) Fam. L. 429; Karsten, (2009) IFL 35; Amlot/Longmate, (2010) Fam. L. 990. 85 Ní Shúilleabháin, para. 5.34. 86 Wells-Greco, (2011) IFL 207, 208. 87 Report Borrás, para. 54. 88 Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 25. 89 Hau, FamRZ 2000, 1333, 1339, Ch. Kohler, NJW 2001, 10, 13. 90 Gaudemet-Tallon, Clunet 128 (2001), 381, 400–401 no. 48; Mostyn, (2001) Fam. L. 359, 364; Spellenberg in Staudinger, Art. 19 note 9. 91 Althammer, FamRZ 2015, 2039. 92 See Report Borrás, para. 53.

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2. Identity of the parties (1) withholds priority of the proceedings before the court first seised, provided the actions covered 26 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.93 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 probability 27 since matrimonial proceedings per definitionem are between the spouses and generally nobody else.94 Yet there might be rare instances to another avail.95 An example is to be said to occur if an action for the annulment of the marriage between X and Y on 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.96 Insofar as third-party nullity actions are permitted and believed to fall in the scope of Brussels IIbis such actions might generate further examples.97 Possibly children might sue in their own name for maintenance, but even suits relating to parental re- 28 sponsibility 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.98 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. 20 demands that Art. 20 comes into operation in order to avoid conflicting results being reached if ever possible.99

29

3. Colliding causes of action Potentially, any matrimonial proceedings falling within the scope of the Brussels IIbis Regulation can create a lis pendens100 as far as the same marriage is concerned.101 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.102 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 theyx are not called upon to ruminate whether annulment and divorce pursue identical causes of action or not.

30

Different actions for divorce clearly share the same cause of action.103 Likewise, applications for 31 competing orders with regard to the same child relate to the same cause of action.104 Independent reconcilation proceedings which the lex fori does not require as necessary and mandatory first steps to-

93 94 95 96 97 98 99 100 101 102 103 104

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. 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.

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Art. 20 Brussels IIter Lis pendens and dependent actions wards the dissolution of a marriage do not happen to collide with divorce or annulment proceedings.105 32

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.106

33

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.107 Hence, if an identical incidental question is raised this does not trigger off the application of Art. 20 and does not by such means vest a prerogative for answering in the court first seised.108 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.109

34

Connected or interrelated claims (for instance for maintenance or for the division of matrimonial property) do not matter as to the identification of the main cause for the purposes of Art. 20.110 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.111 4. “False lis pendens”

35

Provided that the parties of several proceedings are identical, the lis pendens rules applies, by (1), to what are called “false lis pendens”112 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.113 The eventual disappearance of a pendant to Art. 11 (2) Brussels II Regulation in the present Art. 20114 makes such contention at least less convincing if not less tenable.

36

Since (1), as a point of reference, is not modelled on Art. 22 Brussels Convention,115 afterwards 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.116 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. Thus, independent proceedings relating to parental respon-

105 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. 106 Ní Shúilleabháin, para. 5.10. 107 See Malatesta in Corneloup, Art. 19 note 11. 108 Tentatively contra Baratta in Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 182. 109 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.). 110 Gardeñes Santiago, AEDIPr 2008, 880, 883; Roth, IPRax 2013, 188, 189; Althammer in Althammer, Art. 19 note 6; cf. also Aud. Prov. Madrid AEDIPr 2009, 966, 967. 111 Dilger in BBGS, Art. 19 note 8 (2005); Althammer in Althammer, Art. 19 note 7; Geimer in Zöller, Art. 19 note 5. 112 See Report Borrás, para. 54. 113 Report Borrás, para. 56. 114 On this disappearance and its potential consequences see in more detail infra Art. 19 notes 38–41 (Mankowski). 115 See Report Borrás, para. 56. 116 Supra Art. 19 note 17 (Mankowski).

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sibility as pursued in a Member State do not bar a petition for divorce filed in another Member State.117 As far as (1) comprises dependent actions, it is understood that all actions filed are contingent, 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.118 As a whole, (1) is designed to deal with the differences in legislation between the various Member States and especially to avoid problems for Member States which do not have legal separation.119

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5. Conflict between separation and divorce proceedings a) Precedence of the earlier separation proceedings? According to (1), an earlier application for legal separation bars divorce proceedings or annulment 38 proceedings even when the law governing the latter action does not (yet) allow for divorce or marriage annulment.120 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.121 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.122 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.123 The Report Borrás argues in favour of an independent way124 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.125 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.126

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An additional argument supporting this result should be the equal treatment of the Member States: 40 In some Member States separation is generally required as a strict condition for divorce.127 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. Originally, this kind of conflict might have been sorted out by Art. 11 (2) Brussels II Regulation.128 The best ratio to underlay that rule might have been that it avoided characterisation issues and a burning need for heavy distinguishing.129

117 van Den Eeckhout in van Houtte/Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (2001), p. 69, 92. 118 Hüßtege in Thomas/Putzo, Art. 19 note 9. 119 Report Borrás, paras. 52, 54. 120 Report Borrás, para. 57; Malatesta in Corneloup, Art. 19 note 17. 121 See Mostyn, (2001) Fam. L. 359, 364; Malatesta in Corneloup, Art. 19 note14. 122 AP Girona AEDIPr 2009, 1000, 1001; Gardeñes Santiago, AEDIPr 2008, 880, 883. 123 A v. B. (Case C-489/14), ECLI:EU:C:2015:654 para. 33; Hilbig-Lugani, GPR 2016, 132, 133. 124 Report Borrás, para. 52. 125 Report Borrás, para. 52. 126 App. Perugia Riv. dir. int. priv. proc. 2012, 53; Malatesta in Corneloup, Art. 19 note 16. 127 For the sake of argument, it is assumed that the conflicts rules applied would lead to the lex fori as applicable substantive law. 128 See in more detail supra Art. 20 notes 38–40 (Mankowski). 129 Mostermans, NIPR 2001, 293, 300.

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Art. 20 Brussels IIter Lis pendens and dependent actions b) Tentative vote against an approach favouring the more severe result 42

Thus, (1) also tentatively votes against any approach that the application possibly producing the more severe and more radical result should generally and on an abstract level prevail.130 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

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(1) does not adopt expressly the so-called core issue theory as it was developed under Art. 21 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.131 An alternative explanation would read that the applications listed might concern causes of action different in principle,132 but are at least akin to “related actions” in the sense employed by Arts. 30 Brussels Ibis Regulation; 28 Brussels I Regulation.133 In practice, the explanation underpinning (1) is not a matter of real concern anyway.134 d) Coordination with res iudicata

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The results produced by this approach are not entirely convincing, though. This applies in 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.135 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.136 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.137 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.138 Nothing is gained by (1) insofar, and commencing another set of divorce proceedings in the second Member State after dismissing or finishing the first set139 only perpetuates the struggle and allows costs to explode.140 e) The uneasy case of the vanishing Art. 11 (2) Brussels II Regulation

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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:

130 131 132 133 134 135 136 137 138

Spellenberg in Staudinger, Art. 19 note 9. Hau, FamRZ 2000, 1033, 1039; 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. 19 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. 139 See Ní Shúilleabháin, para. 5.08. 140 Rauscher in Rauscher, Europäisches Zivilprozessrecht (1st ed. 2004), Art. 11 Brüssel II-VO note 28.

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“When proceedings for divorce, legal separation or marriage annulment not involving the same cause 46 of action and between the same parties are brought before courts in different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised 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”.141

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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 regulation142 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.

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Unfortunately, this leaves open only two fairly distinct, if not alternative alleys: The first one settles 49 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. 20. 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. But another piece of the wording has remained unaltered and would now be puzzling if the content 50 of Art. 11 (2) Brussels II Regulation had vanished completely: the wording of the heading. It 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 and IIter Regulations of sloppy editing) that the content which had previously been covered by Art. 11 (2) Brussels II Regulation must also sneak into Art. 20. 6. First seised Which court is first seised is a matter of timing. To ascertain which court is first seised it has firstly to 51 be ascertained when either of the courts concerned was seised. 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 seised.143 Problems might arise where two sets of proceedings issue almost contemporaneously.144 In principle, the time of lodgement should be determinative if two sets of proceedings issue on the same day.145 If no official records are kept of the exact time of lodgement this tie-breaker fails.146 Even if exact re141 Report Borrás, para. 53. 142 Like Spellenberg in Staudinger, Art. 19 note 3 puts forward tentatively. 143 See Gruber in Nomos Kommentar BGB, Art. 19 note 9; Hausmann, A note 125; Hüßtege in Thomas/Putzo, Art. 19 note 1. 144 Practical examples are provided by Cass. Clunet 136 (2009), 587 with note Fohrer-Dedeurwaerder and L-K 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. 145 Ní Shúilleabháin, para. 5.13; Malatesta in Corneloup, Art. 16 note 15. 146 Ní Shúilleabháin, para. 5.13; Malatesta in Corneloup, Art. 16 note 15.

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Art. 20 Brussels IIter Lis pendens and dependent actions cords 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.147 Generally, where the difference in time is a matter of hours the rather complex definition of seisin in Art. 17 does not eliminate the risk of conflicting judgments.148 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.149 If absolute, not local time mattered applicants would benefit the more the respective Member State is to the East.150 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.151 Closing down courts over noon or for the early afternoon might prove a severe disadvantage for the applicant pursuing his fortunes in the respective jurisdiction the more so where the respective domestic procedural law does not provide any remedies for ensuing detrimental consequences.152 53

If the proceedings in the first court have been terminated by judgment and are thus no longer pending, Art. 20 becomes inapplicable.153 Yet the judgment rendered by the court originally first seized might now determine the outcome of the other set of proceedings by way of its recognition by the court originally second seised under Art. 23.154 (1) might be potentially wider than the limits the lex fori of the court first seised applies to its notion of res iudicata; thus is conceivable that after the court first seised has given judgment the proceedings before the court second seised might continue as to substance where matters are not covered by that judgment.155 This is a consequence to be derived from the lack of a uniform European concept of res iudicata.

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Art. 20 becomes inapplicable if the proceedings in the first court have been discontinued, too.156 But it does not suffice that proceedings are rather dormant for they might be reinflated with life on a respective application by either party.157

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The crucial case is that the court second seised disregards that the cause has become pending earlier with another court, and continues its “own” proceedings. Art. 20 does not expressly provide for this case and sanctions which might deter the court second seised from walking down this avenue. Francovich liability imposed upon the State of the court second seised 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. 20 second seised in other Member States might be more feasible. Seen from a systematic perspective, 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. 20 does not feature in it. Violation of Art. 20 can only be introduced as an unwritten ground of refusal iuxta vel contra legem.158 At least for matters of parental responsibility, the CJEU has tentatively done so.159 In particular, the court first seised 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 seised rendered in violation of Art. 20.160 This establishes a disincentive

147 Ní Shúilleabháin, para. 5.13; Dimmler, FamRB 2016, 43, 44. 148 Fohrer-Dedeurwaerder, Clunet 136 (2009), 588, 594; Malatesta in Corneloup, Art. 16 note 15. 149 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 47. Sceptical Rieck, NJW 2015, 3776, 3778; Hilbig-Lugani, GPR 2016, 132, 136. 150 Hilbig-Lugani, GPR 2016, 132, 136; see also A-G Cruz Villalón, Opinion of 8 September 2015 in Case C-489/14, ECLI:EU:C:2015:559 para. 36. 151 Hilbig-Lugani, GPR 2016, 132, 136. 152 Nourissat, Procédures décembre 2015 comm. 660; Chalas, RCDIP 2016, 387, 393. 153 See AA v. BB (2014) EWHC 4219 (Fam) (62), (2015) 2 FLR 1251, 1262 (F.D., Moylan J.). 154 Rauscher in Rauscher, Art. 19 note. 23; Althammer in Althammer, Art. 19 note 12. 155 Althammer in Althammer, Art. 19 note 12. 156 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. 157 Ní Shúilleabháin, para. 5.15; Malatesta in Corneloup, Art. 16 note 16. 158 Dutta/A. Schulz, ZEuP 2012, 526, 538–540; Althammer in Althammer, Art. 19 note 3. 159 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.). 160 Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU), (2010) ECR I-14309 para. 70.

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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) According to (2), the same lis pendens rule as set forth in (1) applies if several proceedings relating to 56 parental responsibility relate to the same child and involve the “same cause of action”.161 (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.162 After the extension of the Brussels IIbis Regulation to all matters of parental responsibility the previous problems which occurred under the Brussels II Regulation with regard to so-called “independent” matters of parental responsibility (i.e. such matters without status proceedings between the parents pending and not annexed or ancillary to such proceedings),163 are extinguished.164 (2) strictly requires the “same cause of action” and does not extend to merely related actions.165 (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.166 On the other hand, identity of the parties is not required.167 The opposite would not be 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.168 The object of the action is the end the action has in view.169 Account must be taken of the applicants’ respective claims in each of the different sets of proceedings.170

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1. Same child or same children concerned Basic required is that the possibly colliding applications relate to the same child.171 Proceedings re- 58 lated to different children have different purposes172 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 seised. Under the aus-

161 Illustration: e.g. Rb. Midden-Nederland NIPR 2017 Nr. 289 p. 560. 162 Malatesta in Corneloup, Art. 19 note 1. 163 On this topic OLG Karlsruhe, IPRax 2004, 524 = FamRZ 2005, 287 with note Frank; Gruber, IPRax 2004, 507. 164 Gruber, IPRax 2004, 507, 509. 165 See only Malatesta in Corneloup, Art. 19 note 7. 166 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 66. 167 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 65; Malatesta in Corneloup, Art. 19 note 19. 168 As Tower Hamlets London Borough Council v. MK (2012) EWHC 426 (Fam) (43) (F.D., Baker J.) did. 169 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 68. 170 Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), (2010) ECR I-11163 para. 68. 171 OLG Hamm, FamRZ 2006, 1043; Hausmann, B note 216; Rauscher in Rauscher, Art. 19 note 38. 172 Rauscher in Rauscher, Art. 19 note 39.

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Art. 20 Brussels IIter Lis pendens and dependent actions pices of family unity the solution is not optimal, though, and a better cooperation among authorities would be advisable.173 59

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,174 not for an application of Art. 20. 2. Same “cause of action”

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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.175 Thus, the “same cause of action” is filed provided that the ‘central issue’ of several proceedings is identical.176 The common objective is the decisive factor.177 A set of matrimonial proceedings and set of proceedings relating to parental responsibility as such never relate to the same disputed matter.178 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.179 Parental responsibility might be the true core issue, but within the return action is is a mere incidental question and does thus not determine the cause of action.180 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.181

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Yet in practice informational difficulties as to the scope and cause of the proceedings pending 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.182 The latter party is primarily burdened with the onus to establish that an identical cause is already pending elsewhere.183

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Similar to the prerequisites of the Brussels Ibis/Brussels I Regime, a proceeding relating only 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.184 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,185 misconstrues both Art. 20 and in particular Art. 20.186

173 174 175 176 177 178 179 180 181 182 183 184 185 186

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To the same avail Malatesta in Corneloup, Art. 19 note 18. See on the possible effects of the European Judicial Network infra Art. 20 note 122 (Mankowski). Gruber, FamRZ 2000, 1129, 1131. 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. 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.

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3. Exception in cases of Art. 15 A novelty compared to the Brussels IIbis Regulation is the exception in (2): Excluded are cases where 63 one of the courts concerned has jurisdiction “only” based on a jurisdiction agreement under Art. 15.

V. Consequence: mandatory stay If the prerequisites listed in (1) exist or more precisely: if the courts first seised positively asserts its 64 own jurisdiction, the court second seised must of its own motion stay its proceedings pursuant to (3) 1st sentence.187 It must not wait for any application by either party to do so. On the other hand, the court second seised 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 seised establishes its own jurisdiction or not. Else the danger would arise that the court second seised dismisses prematurely and the court first seised 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.188 Consequentially, (3) 1st sentence follows suit in order to avoid the risk of a negativer Kompetenzkonflikt (negative conflict of jurisdictions).189 Indirectly, maintaining the effet utile demands a tentatively restrictive application and interpretation of the transfer mechanism established by Art. 13.190 If the court second seised cannot detect a reason why the courts of it State should have international jurisdiction anyway, it appears more appropriate to dismiss the case entirely under Art. 18 and not to stay first under (3) 1st sentence and to dismiss only at a later stage after the cases might have ‘returned’.191 The court second seised is bereft of any discretion as to whether to stay the proceedings or to decline jurisdiction and dismiss the proceedings.192 The court first seised has exclusive jurisdiction if it establishes so, regardless of convenience.193 To order the stay is imperative and compulsory.194 The parties do not have any means to abrogate from this, either.195 Nor has the court the power to make the stay conditional e.g. on the progress of the proceedings in the court first seised.196 If jurisdiction is contested it is also for the court first seised to decide upon that particular issue.197 In particular any party contesting the validity of the act initiating the first set of proceedings is not only invited but rather compelled to do so before the court first seised.198

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The immediate consequence under (2) is the same as under (1): The court second seised 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).199 If the court which was seised later does not regard the cause as identical it will not apply (2) and will persist with the proceedings pending before it.200

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187 See only Trib. Bruxelles J. trib. 2003, 665, 666. 188 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. 189 Report Borrás, para. 53; OLG Karlsruhe, FamRZ 2011, 1528, 1529; OLG Bamberg, FamRZ 2018, 38, 39. Yet cf. OLG Stuttgart, NJOZ 2017, 338 para. 14. 190 IQ v. JP (Case C-478/17), ECLI:EU:C:2018:812 para. 44; Égea in Égea/Guinchard, RTDEur 2019, 761, 762. 191 OLG Stuttgart, NJOZ 2017, 338 para. 14; see also Riegner, NZFam 2017, 970. Yet cf. OLG Bamberg, FamRZ 2018, 38, 39. 192 Layton/Mercer, para. 22.025; Malatesta in Corneloup, Art. 19 note 25. 193 Brown/Fisher, (2008) 158 New L.J. 1548, 1549. 194 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.). 195 See Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) (2003) ECR I-14693, I-14738 para. 42. 196 See Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) (2003) ECR I-14693, I-14740 et seq. para. 51 et seq.; OLG München, RIW 1998, 631; Layton/Mercer, para. 22.026. 197 Mostermans, NIPR 2001, 293, 301. 198 Trib. Bruxelles J. trib. 2003, 665, 666. 199 Supra Art. 20 note 51 (Mankowski). 200 See only Cassaz. RDIPP 2007, 198, 200.

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If the court secons seised does not abide (1) or (2) and does not stay, but proceed, the ensuing decision on the merits might be challenged by any remedies which the appeal system of the resprective Member State offers. Conversely, if a court stays although the prerequisites of (1) and (2) are not fulfilled this is appealable under the system of the respective Member States, too.201

VI. Further consequences depending on acceptance of, or declining, jurisdiction by the court first seised, (3) 1. Transformation of stay into dismissal in the event of the court first seised accepting its jurisdiction a) Mandatory dismissal 68

According to (3), the court second seised is obliged to decline jurisdiction where the jurisdiction of the court first seised is established. This mechanism is modelled on Art. 27(2) Brussels I Regulation. The court first seised shall decide whether jurisdiction is accepted. In order for the jurisdiction of the court first seised to be established, it is sufficient according to the CJEU202 that the court first seised 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.203 Art. 18 guarantees a proper examination of jurisdiction under Art. 3.204 It is not required that the decision on jurisdiction may not be appealed against anymore.205

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If by these or any other means the court first seised 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.206 On the other hand, acceptance of jurisdiction by the court first seised avoids any negative conflict of jurisdiction. Thus, the court second seised 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 seised accepted jurisdiction and the news about this reached the court second seised) 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.

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The dismissal is mandatory. The court second seised does not have any discretion to opt for 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 seised is itself under an obligation to bring its proceedings to an end.207 An argumentum e contrario relying on the verbal difference to (1) and (2) should not be accepted.

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As far as competing proceedings relating to parental responsibility are concerned, it is of no importance whether any of those proceedings is pursued ex officio or not.208

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Any decision entered into by the court second seised can be appealed againts in accordance ithe 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.209

201 OGH RdW 2020/46, 27. 202 The CJEU might have overlooked that unlike under the Brussels I/Ibis regime the Brussels IIbis Regulation does not containany rule founding jurisdiction on submission. 203 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. 204 Hilbig-Lugani, GPR 2016, 132, 134. 205 Hilbig-Lugani, GPR 2016, 132, 134. 206 Gruber, FamRZ 2000, 1129, 1133. 207 AG Schleswig, IPRspr. 2008 Nr. 185 p. 587; Layton/Mercer, para. 22.027. 208 Gruber, FamRZ 2000, 1129, 1132. 209 Malatesta in Corneloup, Art. 19 note 28.

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b) Decision by the court first seised on its jurisdiction aa) Generalities The court first seised decides on its jurisdiction in the manner provided for by its own procedural 73 rules.210 The point at which, and the means by which, the jurisdiction of the court first seised is established or not, as the case may be, must necessarily be a matter for the procedural law of that court.211 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 Prozessurteil212 which decisively lacks the force of res iudicata. It is for the national law of the court first seised 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 seised has been contested and upon such motion by either party been positively reaffirmed.213 On the other hand, it should not automatically be assumed that the jurisdiction of the court first seised has been established just because that court has embarked on 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.214

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It is solely and exclusive in the competence of the court first seised to decide upon its own jurisdic- 75 tion.215 The court second seised is bound by the first court’s decision on its jurisdiction and must not second guess it. The court second seised is not entitled to question the correctness and the lawfulness of the first court’s decision. It must not censure the court first seised and must not behave, even indirectly, as a kind of appellate court to the court first seised. The court second seised has to accept any finding on habitual residence by the court first seised and must not reverse the ensuing result by ascertaining a deviating habitual residence for the respective spouse establishing its, the second court’s, jurisdiction.216 Before the court first seid rendered its decision, it is not even entitled to influence the court first seised. It must not request that the court first seised declkares itself lacking competence.217 bb) Appeal pending against any decision If the court first seised has decided on its jurisdiction but the decision is under appeal or other judi- 76 cial review in the respective state (3) 1st sentence is not triggered since the courts of the jurisdiction where the first action became pending, have not yet given their final say.218 Since there a final result has not yet been reached the less the court second seised can proceed to final conclusions or a dismissal. The condition precedent of (3) 1st sentence is not yet fulfilled.219 It is still for (1) and preliminary solutions to govern the field.220 There needs to be a formally final decision in order to exert binding effects.221 Any appeal in the State of the court first seised suspends a dismissive decision by the court

210 211 212 213 214 215 216 217 218 219

See only Malatesta in Corneloup, Art. 19 note 22. Layton/Mercer, para. 22.026. Geimer in FS Robert Schweizer (1999), p. 175, 187. Layton/Mercer, para. 22.027. Layton/Mercer, para. 22.027. 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. Moore v. Moore (2007) EWCA Civ 361, (2007) 2 FLR 339, (2007) ILPr 481 (102) et seq. (C.A., per Lawrence Collins L.J.). 220 Apparently to a different avail L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117 (F.D., Singer J.). 221 Wagner, FPR 2004, 286, 288; Rauscher in Rauscher, Art. 19 note 46; Hausmann, A note 132.

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Art. 20 Brussels IIter Lis pendens and dependent actions second seised. This covers both an appeal against a decision by the court first seised asserting jurisdiction222 and an appeal against a decision by the court first seised declining jurisdiction.223 77

In any event, the court second seised must not speculate or guess as to the likelihood of the appeal to succeed.224 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.225 Whatever the evidence in support of a solution contrary to that of the court first seised 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.226

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If one court regards itself as the court second seised and gives judgment accordingly, but an appeal is lodged against such judgment, the other court in the other jurisdiction which deems itself first seised (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.227

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If the national law of the court first seised allows for a separate interim judgment of jurisdiction (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 loged against it and the court first seised subsequently provceeds to issuing a judgment on the merits as to substance.228 cc) Stay by the court first seised for want of jurisdiction

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Matters become overly complicated where the courts involved reach different conclusions as to which court was the one first seised. Imagine that one court (A) deems itself to be the court second seised and the other court (B) accordingly the one to be first seised 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 seised. The difficulty is that proceedings which are stayed, rather than dismissed, are merely suspended, and capable of recommencing upon the claimant’s application.229

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This poses quite some conundrum, and any solution must appear closely related to Alexander 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 seised 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.230 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.231

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Sometimes common sense is said to suggest that a court cannot be seised of an action which is no longer active – even if it might be re-activated.232 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, espe222 See only William Grant & Sons International Ltd. v. Marie-Brizard & Roger International SA 1998 SC 536. 223 Moore v. Moore (2007) EWCA Civ 361, (2007) 2 FLR 339, (2007) ILPr 481 (103) (C.A., per Lawrence Collins L.J.). 224 L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117 (F.D., Singer J.). 225 L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117 (F.D., Singer J.). 226 L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117 (F.D., Singer J.). 227 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). 228 See Trib. Belluno RDIPP 2011, 727. 229 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 7. 230 L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117 (F.D., Singer J.). 231 See L-K v. K (Brussels II Revised: Maintenance Pending Suit) (2006) 2 FLR 1113, 1117–1119 (F.D., Singer J.). 232 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8.

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cially if it is open to the court to refuse to lift the stay.233 Moreover, it is unclear how the objectives underlying Arts. 18 and 19 would be served by concluding that a court remains seised of proceedings which have been stayed.234 There allegedly is no risk of parallel proceedings or of inconsistent judgments.235 c) Overcoming informational difficulties The court second seised in any event has to overcome informational difficulties as to get the neces- 83 sary knowledge whether the court first seised accepted or declined its own jurisdiction, though. Yet ordinarily the party most interested will inform the court accordingly if not the court first seised sets upon informing its fellow judges in the other jurisdiction. But it should be noted that the court first seised is not under any obligation to inform the court second seised. The European Judicial Network might provide the proper basis for direct communication between 84 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.236 Cases tend to illustrate the potential of direct judicial communication and cooperation.237 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 seised. Counsel should be in a position to give an up-to-date assessment of the likely progress in the other proceedings.238 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.239

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d) Continuous collision of proceedings In order for there to be a situation of lis pendens it is important that the colliding proceedings be 86 pending simultaneously before the courts of different Member States.240 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 rendered241 for the expired proceedings cannot result in any decision anymore. Even if the jurisdiction fo the court first seised had been initially established in the first proceedings, the situation of lis pendens does not exist any longer, and jurisdiction is not established anymore.242 Following the lapse of the proceedings before the court initially first seised (for instance243 as the re- 87 sult of the expiry of time limits imposed by the procedural law of that forum244), the court initially second seised becomes the court first seised for actual purposes on the date of that lapse.245 This might become important in the light of later applications to the court initially first seised. Incentives

233 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8. For the opposite view cf. Briggs/ Rees, pp. 201 et seq. 234 This view was taken in Haji-Ioannou v. Frangos (1999) 2 Lloyd’s Rep. 337 (C.A.). 235 Fentiman in Magnus/Mankowski, Art. 32 Brussels Ibis Regulation note 8. 236 Bentinck v. Bentinck (2007) EWCA Civ 175, (2007) 2 FCR 267, 278 (C.A., per Thorpe L.J.). 237 Bush v. Bush (2008) EWCA Civ 865, (2008) 2 FLR 1437, 1447 (49) (C.A., per Thorpe L.J.). 238 Moore v. Moore (2007) EWCA Civ 361, (2007) 2 FLR 339, (2007) ILPr 481 (7) (C.A., per Thorpe L.J.). 239 Moore v. Moore (2007) EWCA Civ 361, (2007) 2 FLR 339, (2007) ILPr 481 (7) (C.A., per Thorpe L.J.). 240 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37; Hilbig-Lugani, GPR 2016, 132, 134. 241 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37. 242 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 37. 243 For other instances, e.g. retraction of the application, Hilbig-Lugani, GPR 2016, 132, 135. 244 A v. B (Case C-489/14), ECLI:EU:C:2015:654 para. 42. 245 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.

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Art. 20 Brussels IIter Lis pendens and dependent actions to initiate precuationary second proceedings speculating on the then future lapse of the initially first proceedings ensue.246 e) Declining jurisdiction and later applications 88

Declining jurisdiction by virtue of (3) 1st sentence does not bar a later application to the court second seised if the cause of action of these proceedings reaches further than the final judgment handed down by the court first seised. For example, (3) 1st sentence 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.247 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 Arts. 12; 13

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In a rare if not exotic setting, the court second seised might still hear the case in spite of the court first seised positively affirming its own jurisdiction: The court first seised might ascertain its own jurisdiction in principle and nonetheless transfer the case to the court second seised under Arts. 12; 13.248 2. Continuation of proceedings before the court second seised after the court first seised declined jurisdiction

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Where the court first seised declines jurisdiction, the court second seised may continue, or carry on, with the proceedings pending before it. Although this is not expressly provided for, the court second seised shall lift the stay if the challenge to jurisdiction of the court first seised is successfully upheld.249 For instance, in Italy the court might seize upon the procedural institute of riassunzione.250

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If the court first seised fails to accept jurisdiction explicitly, but prefers to reject the application for substantial reasons only, the court second seised is able to pursue the competing proceedings as well. Neither is such a negative judgment rendered by the court first seised 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.251

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In the event that the case is not pending anymore with the court first seised, the principal requirement of lis pendens has ceased to exist and Art. 20 becomes ineffective in the concrete case.252 Whether and, if so, when the case has become not pending before the court first seised has to be ascertained pursuant to the national law of the court first seised.253 If the dis-seising of the court first seised has come about through a successful challenge of its jurisdiction, the court second seised may proceed to hear the case.254

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If the court first seised 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.255 In246 Hilbig-Lugani, GPR 2016, 132, 134–135. 247 Report Borrás, para. 57. 248 Malatesta in Corneloup, Art. 19 note 27; see Verschraegen in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich (Wien 2007), p. 91, 99. 249 Layton/Mercer, para. 22.026; Baratta in Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 180. 250 Baratta in Picone (ed.), Diritto internazionale private e diritto comunitario (Padova 2004), p. 163, 180. 251 Hüßtege in Thomas/Putzo, Art. 19 note 14. 252 DT v. FL (2007) I.L.Pr. 763, 793 et seq. (H.C., McKechnie J.); Geimer in FS Robert Schweizer (1999), p. 175, 190. 253 Geimer in FS Robert Schweizer (1999), p. 175, 191. 254 Briggs/Rees, para. 2.205. 255 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.

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sofar the rules on the recognition of judgments substitute for, and take the place of, Art. 20. They will establish the respective impediments to the proceedings before the court second seised. When judgment has been given the court first seised is functus officio and accordingly, neither that court is seised anymore nor is the case pending before it or any other court in the respective jurisdiction anymore256 if no appeal has been lodged. If the court first seised takes unduly long time (i.e. some years) to decide upon its own jurisdiction the court second seised might feel tempted to break the deadlock by lifting the stay and continuing the proceedings still pending before it.257 Yet this appears to be incompatible with, and to conflict with, the decision of the ECJ in Gasser.258 There, such “simple” delay did not amount to a justification for the court second seised 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 seised.259

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A further prerequisite for continuing the proceedings before the court second seised is that the court second seised has jurisdiction. If it lacks jurisdiction it has to dismiss the case pending before it pursuant to Art. 17.260 In practice, but for Art. 6 (1) the court second seised might dismiss the case even without wiating for the court first seised to decide on its, the court first seised’s, jurisdiction as a matter of pragmatism.

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3. “False transfer” of the case by virtue of the second clause of (3) a) The model employed by (3) 2nd sentence as opposed to a genuine transfer The second clause of (3) allows for some kind of transferring an application to the court first seised, but is not to be interpreted as a reference made by the court second seised 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 seised. He is permitted to do so but only if the court second seised declines jurisdiction and dismisses the case.261 (3) 2nd sentence 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.262 The mechanism is a major renovation and innovation of the lis pendens system.263

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The applicant’s right to apply is to be judged autonomously, i.e. independently from the yardsticks of national laws, by the Brussels IIbis Regulation and therefore precedes any differing lex fori of the court first seised.264 The court first seised 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.265 As a consequence, difficulty may arise for Member States who do not have legal separation.

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(3) 2nd sentence does not allow for a true transfer of the case from one court to the other. The means 98 employed are rather different and worlds apart from such a genuine transfer: The court second seised dismisses the application pending before it, and invites the applicant to renew his application before the other court, the court first seised.266 Playing with words one could feel tempted to say that not

256 257 258 259 260 261 262 263 264 265 266

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, Brussels Ibis Regulation (2nd ed. 2022), Introduction to Arts. 27–30 Brussels I Regulation notes 35–47. Dörner in Saenger, Art. 19 note 1; Hausmann, A note 131. Supra Art. 20 note 77 (Mankowski). Report Borrás, para. 55. Malatesta in Corneloup, Art. 19 note 5. Gruber, FamRZ 2000, 1129, 1134. For a different view see Vogel, MDR 2000, 1045, 1049. A practical example is provided by Trib. Belluno RDIPP 2011, 727, 729.

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Art. 20 Brussels IIter Lis pendens and dependent actions the case is transferred but the parties.267 The main difference can be easily identified: the court first seised is not bound by any order the court second seised 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. 99

(3) 2nd sentence only applies if the proceedings are covered by (3) 1st sentence and if the court first seised has 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 there.268 As a consequence, transferring an application to the court first seised remains impossible until the court second seised has declined jurisdiction according to (3) 1st sentence. 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.

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(3) 2nd sentence seems to cater in particular for the situation where a different kind of proceeding was brought before the court second seised.269 Its practical importance might arise in particular where the second kind of proceeding goes beyond the first one.270 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.271

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Contrary to what the Report Borrás suggests,272 (3) 2nd sentence does not autonomously constitute jurisdiction, but does not establish any ground of jurisdiction at all.273 One has to recall that it requires as a prerequisite that the court first seised has already accepted jurisdiction over the matter. Hence, the court first seised can only be applicable by virtue of Arts. 3 et seq. and on no other ground. The court first seised 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 seised 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 seised.274

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(3) 2nd sentence gains its core importance insofar as it inhibits raising any objections which the national law of the court first seised might ordinarily have in store against subsequent or belated applications.275 In particular, time limits as to be found in that law are to be disregarded since (3) 2nd sentence enjoys the primacy and superiority of EU law over national law.276 What is permitted by (3) 2nd sentence must not be barred by national law. (3) 2nd sentence must be allowed to exude its effet utile. b) Consequential questions

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(3) 2nd sentence generates quite some consequential questions which it does not address openly. The program designed by the EU legislator is rather sketchy and pointillistic than comprehensive and cries out rather loudly for gap-filling. This might in turn trigger criticism.277

267 268 269 270 271 272 273 274 275 276 277

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See Rb. ’s-Gravenhage NIPR 2002 Nr. 95 p. 184. Report Borrás, para. 55. Ní Shúilleabháin, para. 5.07. Gruber, FamRZ 2000, 1129, 1134; Gruber in Nomos Kommentar BGB, Art. 19 note 25; 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; Wagner, FPR 2004, 286, 288; 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. See in particular Ancel/Watt, RCDIP 90 (2001), 401, 428–431; Tagaras in Mélanges en hommage à Jean-Victor Louis (2003), p. 455, 462–464.

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If (3) 2nd sentence is seen in isolation, acceptance of jurisdiction by the court first seised itself is not 104 guaranteed by the very rule itself. The jurisdiction of the court first seised must be determined by virtue of Arts. 3–15.278 As far as competing actions are concerned, jurisdiction may, in dubious cases, be established under Art. 5. Yet relating back to (3) 1st sentence 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 seised must have accepted jurisdiction before the “transfer” can be implemented.279 Other consequential questions follow suit, in particular, which law shall be applicable for which as- 105 pects.280 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 seised does not provide for exactly the legal institution (e.g. annulment) which the applicant sought for.281 Merely procedural aspects on the other hand should be dealt with by the national lex fori of 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.282 If party roles have been reversed the scenario comes close to a counterclaim.283

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The option opened by (3) cl. 2 ceases to exist when the court first seised has given final and binding judgment as to substance284 or dismissed the case for good.

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If the case as to substance has reached the appellate instances in the State of the court first seised the ratio to join cases at first glance appears to favour that the transferred case shoould 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 seised on joined cases and the judicial conjunction of cases.

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VII. Choice of court and consequences for lis pendens, (4) and (5) 1. Generalities (4) and (5) are innovations on the Brussels IIbis Regulation. They permit to reflect the impact of juris- 109 dictional party autonomy on lis pendens. (4) provides that where a court of a Member State on which an acceptance of jurisdiction as referred to in Art. 10 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement or acceptance declares that it has no jurisdiction under the agreement or acceptance. (5) states that where and to the extent that the court has established exclusive jurisdiction in accordance with an acceptance of jurisdiction as referred to in Art. 10, any court of another Member State shall decline jurisdiction in favour of that court. Recital (38) 3rd sentence clearly expresses the policy pursued: “In order to enhance the effectiveness of exclusive choice-of-court agreements, the provisions of this Regulation on lis pendens should not stand in the way where parents confer exclusive jurisdiction on the courts of a Member State.” Exclusive jurisdiction based on respected party autonomy shall take precedence to lis pendens. At its very core, this can be based on the old adage of volenti non fit iniuria: He who validly consents to a certain exclusive jurisdiction must not countermand its own consent, but is bound by it. 278 279 280 281

Report Borrás, para. 55. Supra Art. 20 note 76 (Mankowski). See Borrás in Malatesta/Bariatti/Pocar, p. 99, 106. Gaudemet-Tallon, Clunet 128 (2001), 383, 403; Ancel/Watt, RCDIP 90 (2011), 403, 430; Malatesta in Corneloup, Art. 19 note 31. 282 Spellenberg in Staudinger, Art. 19 note 27; Simotta in Fasching/Konecny, Art. 19 note 55. 283 Spellenberg in Staudinger, Art. 19 note 27; Simotta in Fasching/Konecny, Art. 19 note 55. 284 Hausmann, A note 133.

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Art. 20 Brussels IIter Lis pendens and dependent actions 2. Art. 31 (2), (3) Brussels Ibis Regulation as role model 111

In essence, (4) and (5) are modeled after Art. 31 (2), (3) Brussels Ibis Regulation.285 For the sake of convenience, the text of these role models286 reads: Article 31 Brussel Ibis Regulation (2) Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement. (3) Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court.

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As to when jurisdiction conferred by parties’ autonomy is exclusive, Art. 10 (4) provides the answer: in the cases covered by Art. 10 (1) (b) ii), namely where the parties expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction. It is striking and odd that Art. 10 (4) refers only to cases of acceptance under Art. 10 (1) (b) ii), but not also to cases of freely entered agreements under Art. 10 (1) (b) i). For the latter an analogy to Art. 10 (4) could be ventilated, vesting presumed exclusivity into the jurisdiction so agreed upon, supported by an analogy to Art. 25 (1) 3rd sentence Brussels Ibis Regulation. This appears the more justified since Art. 31 (2) Brussels Ibis Regulation as the evident role model for (4) is inextricably intertwined with Art. 25 Brussels Ibis Regulation.

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Art 31 (2) Brussels Ibis Regulation aims at protecting (at least exclusive) choice of court agreements and to grant them precedence to the principle of priority in time.287 In reversal of the principle of priority in time,288 a lawsuit brought in the forum prorogatum enjoys precedence to a suit in the forum derogatum even it is brought later than the latter. It is soley and exclusively for the forum prorogatum to derteminer the validity of the choice of court agreement. Similar to Arts. 5; 6 HCCA,289 Art. 31 (2) Brussels Ibis Regulation establishes exclusive Kompetenz-Kompetenz.290 In particular such Kompetenz-Kompetenz has the so called negative effect291 that no other court than the forum prorogatum must assert or deny the validity of the choice of court agreement. He who has bound himself to sue only in a certain court, must not sue in other courts, and such other courts have to wait for the forum prorogatum whether it affirms or rejects its own competence and consequently any binding obligation on the parties’ side. Only where the court nominated in the choice of court agreement has negated ist own cmpetence, other courts may step in. In this event any obligation to sue only in a certain court, is negated.

114

Every forum derogatum has to subdue to a positive decision rendered by the forum prorogatum and has consequetly to declare itself lacking jurisdiction the suit pursuant to Art. 31 (3) Brussels Ibis Reg-

285 Gruber/Möller, IPRax 2020, 393, 404; Brosch, GPR 2020, 179, 182. 286 Case law on Art. 31 (2) Brussels Ibis Regulation: BGH, ZIP 2021, 1514 (cases notes by J. Schmidt, EWiR 2021, 508; Fölsing, ZInsO 2021, 1734); KG, ZIP 2021, 308 (case note Fölsing, ZInsO 2021, 699); Etihad Airways PLSC v. Flöther (2020) EWCA Civ 1707, (2021) 2 WLR 939 (C.A.), (2019) EWHC 3107 (Comm), (2020) QB 793, (2020) 2 WLR 333 (Q.B.D., Jacobs J.); Perella Weinberg Partners UL LLP and Perella Weinberg Partners (Europe) LLP v. Codere SA (2016) EWHC 1182 (Comm) (Q.B.D., Walker J.); Commerzbank AG v. Liquimar Tankers Management Inc. (2017) EWHC 161 (Comm), (2017) 1 WLR 3497 (Q.B.D., Cranston J.). Bibliography on Art. 31 (2) Brussels Ibis Regulation: Mankowski, RIW 2015, 17; Hilbig-Lugani in FS Rolf A. Schütze zum 80. Geb. (2014), p. 195; Kindler in FS Dagmar Coester-Waltjen (2015), p. 485. 287 See only Carbone, Dir. comm. int. 2013, 651, 652. 288 Not quite clear Hartley in Essays in Honour of Michael Bogdan (2013), p. 95, 100; Hartley, (2013) 129 LQR 309, 312: “sort of reverse lis pendens rule” and following Tretthahn/Hiersche, ÖJZ 2014, 57, 60: “reverse lis pendens rule”. Correctly e.g. Sánchez Fernández, YbPIL 12 (2010), 377, 395. 289 Carbone, Dir. comm. int. 2013, 651, 657. 290 von Hein, RIW 2013, 97, 105; Arnt Nielsen, Nordic J. Int. L. 83 (2014), 61, 66. 291 Deumier/Laazouzi/Treppoz, Rev. contrats 2013, 1037, 1055.

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ulation. Further conseuences are governed by the domestic law of that court, most probably resulting in dismissing the claim for lcack of jurisdiction. Consequently, a two-tier procedure is established.292 In the opposite scenario that the court prima facie prorogated turns down jurisdiction for invalidity 115 of the prorogation, any hurdle in the way of the earlier set of proceedings ceases to exist, and that earlier set of poceedings before the court first seised (that is now asserted as not being validly derogated) should be resuscitated and continue.293 The court first seised has to follow the decision of the court prima facie prorogated on lacking existence or invalidity of the choice of court agreement and must not decide differently.294 In the event that the court prima facie prorogated denies a valid choice of court agreement, yet intends to establis own jurisdiction based on anothe ground jurisdiction, this course is barred by Art. 20 (1) since this scenario is outside Art. 20 (4) following Art. 31 (2) Brussels Ibis Regulation.295 3. Analogy to Art. 31 (4) Brussels Ibis Regulation? Art. 31 (2), (3) Brussels Ibis Regulation are subject to an exception: Art. 31 (4) Brussels Ibis Regula- 116 tion states that Art. 31 (2), (3) Brussels Ibis Regulation shall not apply to matters referred to in Sections 3, 4 or 5 of the Brussels Ibis Regulation where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the claimant and the agreement is not valid under a provision contained within those Sections. Art. 31 (4) Brussels Ibis Regulation has not been copied into Art. 20 since on its face that exception is germane to protective regimes for certain contract categories (insurance, consumer and employment contracts) which are believed to not have counterparts in the context of the Brussels IIter Regulation. However, it appears not absolutely excluded to think of an analogy to Art. 31 (4) Brussels Ibis Regulation where a strong asymmetry between the parties to the choice of court agreement is discernible in terms of bargaining power or information, with one parent being the weaker party in need of protection ex lege. This would relate to the wider context of Art. 8 (5) Hague Maintenance Procotol and Recitals (17) Matrimonial Property or Partnership Patrimonial Effects Regulations.296

VIII. Anti-suit injunctions In certain instances, parties seek relief against the possibility of being sued abroad by asking 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 with297 whereas civil law countries do not stock this weapon in their array. Under the Brussels I/Ibis regime the ECJ has clearly ruled out the admissibility of anti-suit injunctions directed against lawsuits being initiated elsewhere in the EU.298 The case has not been tested under the Brussels IIbis or IIter regimes yet, though. Anti-suit injunctions or their lesser interim version, the so-called Hemain injunction,299 are available in Eng-

292 Cadet, Clunet 140 (2013), 765, 781. 293 Siehe nur Bowen, 2014 SLT art. 99, 103. Lacking the last precision Herranz Ballesteros, (2014) 10 JPrIL 291, 306. 294 Ratkovic´/Zgrabljic´ Rotar, (2013) 9 JPrIL 245, 265; Penasa, Int’l. Lis 2013, 117, 122–123. 295 Nielsen, (2013) 50 C.M. L.Rev. 503, 522; Penasa, Int’l. Lis 2013, 117, 123; Tretthahn/Hiersche, ÖJZ 2014, 57, 60; see also Herranz Ballesteros, (2014) 10 JPrIL 291, 306. 296 On this context cf. Mankowski in Amend-Traut (ed.), 2018: Familie und Recht (2018), p. 37. 297 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.). 298 Turner v. Grovit (Case C-159/02), (2004) ECR I-3565. 299 Leading case and consequently name-giving 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.).

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Art. 20 Brussels IIter Lis pendens and dependent actions land even in matrimonial proceedings.300 The requirements under English law are that England is the natural forum and that the pursuit of foreign proceedings would be vexatious or oppressive.301 118

Yet the solution found under the Brussels I/Ibis regime should equally be adopted under the Brussels IIter regime: Anti-suit injunctions should be deemed inadmissible, and Art. 20 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.302 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. 20 obliges to apply the rules of lis alibi pendens.303

IX. Relation between Art. 20 and Art. 15 119

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. 15 such that interim orders should properly be made, in effect, on a protective basis.304

120

Art. 20 does not bar any measures under Art. 15 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.305

121

In yet another perspective, injunctive relief must not interfere with Art. 20. Art. 15 cannot be used illegitimately to seize jurisdiction validly vested in the first court.306 Competing sets of injunctive relief may not be deemed as the same cause of action, and the less injunctive relief based on Art. 15 triggers questions of lis pendens and the main proceedings unter Art. 20.307

X. Alleviation by the European Judicial Network? 122

Art. 20 bears obvious problems. Perhaps the creation of the European Judicial Network 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.308 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.309 300 de Dampierre v. de Dampierre (19889 1 A.C. 92, 110 (H.L., per Lord Goff of Chieveley). 301 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). 302 Rauscher, IPRax 2004, 405, 409; Dutta/Heinze, ZEuP 2005, 428, 459; Hau, ZZP Int. 9 (2004), 191, 196 et seq. 303 Otobo v. Otobo (2003) 1 FLR 192, 207 (C.A., per Thorpe L.J.). 304 A v. L (Jurisdiction: Brussels II) (2002) 1 FLR 1042, 1043 (F.D., Judge Garner); see also Font i Segura, REDI 2004, 273, 294. 305 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 (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. 306 Re ML and AL (Children) (Contact order: Brussels II Regulation) (2007) 1 FCR 475, 485 (F.D., Nicholas Mostyn Q.C.). 307 Rb. Maastricht NIPR 2007 Nr. 288 p. 382; sse also Prütting in FS Daphne-Ariane Simotta (2012), p. 437, 439–440. 308 Chorley v. Chorley (2005) 2 FLR 38, 45 (C.A., per Thorpe L.J.); Thorpe, March (2005) IFL 3. 309 Chorley v. Chorley (2005) 2 FLR 38, 45 (C.A., per Thorpe L.J.).

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Nevertheless, even close judicial cooperation could not and must not overcome the guarantee given 123 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. 15.310 Not even Art. 20 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.

XI. Conflicting matrimonial and ancillary civil proceedings Art. 20 does not establish any rule dealing directly with the case that matrimonial proceedings are 124 conflicting with “ordinary” but ancillary civil proceedings,311 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.312 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 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 case313 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. 20 (3). The solution of the conflict heavily depends on whether the matrimonial proceedings pending were 125 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. If the situation is vice versa i.e. if the civil proceedings became pending after the matrimonial pro- 126 ceedings had been already pending the civil proceedings should be subjected to the treatment which Art. 28 Brussels I Regulation requires for related actions.314 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.315 It would be quite inconsistent with the objectives and underlying policies of the Brussels IIbis Regulation was the civil court second seised to say that it was perfectly in order to bring civil proceedings which only thinly disguise their true competitive objectives.316 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. 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

310 See in more detail Introduction note 123 (Magnus/Mankowski). 311 OGH SZ 2011/56; Hausmann, A note 122. 312 Marongiu Bonaiuti, RDIPP 2005, 699; Malatesta in Corneloup, Art. 19 notes 11, 36. Mistaken Trib. Firenze RDIPP 2005, 737. 313 Prazic v. Prazic (2006) 2 FLR 1124 (C.A.). 314 Sceptical Ní Shúilleabháin, para. 5.40. 315 Prazic v. Prazic (2006) 2 FLR 1124, 1136 (C.A., per Thorpe L.J.). 316 Prazic v. Prazic (2006) 2 FLR 1124, 1136 (C.A., per Thorpe L.J.).

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Art. 20 Brussels IIter Lis pendens and dependent actions partial regimes but clearly within a European framework. Spurious elements of this general idea might still be detected in Art. 20 itself at least insofar as it covers so-called “false” lis pendens.317 128

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.318 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 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/2007 Lugano Convention. 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.

XII. Violation of Art. 20 does not constitute a justification for refusal of recognition 129

If a court second seised misapplies or disregards Art. 20, such violation of Art. 20 does not constitute a gorund for refusal of recognition of the ensuing judgment rendered by the court second seised, The rule of non-review of jurisdiction as to be derived by way of argumentum e contario from Arts. 38; 39, extends to the rules of lis pendens although they are not rules on jurisdiction in the strict sense.319 Yet they feature in Chapter II under the overall heading “Jurisdiction”.320 Whenever the court first seised, ruling on an incidental claim for recognition, examined whether the rules on lis pendens have been correctly applied by the court second seised and, therefore, the reasons why the court second seised has not declined jurisdiction, the court first seised would be reviewing the jurisdiction of the court second seised.321 Notwithstanding the fact that (3) does not contain any express reference to Art. 20, an alleged breach of Art. 20 does not allow the court first seised, if it does not unauthorisedly review the jurisdiction of the court second seised, to refuse recognition of a judgment issued by the court second seised contrary to the rules on lis pendens.322 The failure to sanction the mandatory rules on lis pendens raises a moral hazard of favouring tactical litigation,323 though, which could be cured only in a further, future recast.324 “Imperativité sans exclusivité” is some sort of self-contradiction.325 Given the rigidity of the principle of prior tempore, reconciling principle and pragmatism might end in a kind of circulus vitiosus, nonetheless.326

317 See Malatesta in Corneloup, Art. 19 note 6. 318 Rb. Maastricht, NIPR 2007 Nr. 191 p. 258. 319 Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24 paras. 50–56; Véronique Legrand, Petites Affiches n° 53, 14 mars 2019, 7, 9; Álvarez González, La Ley/Unión Europea núm. 68, marzo de 2019, 1, 3–4; Deschuyteneer, SEW 2019, 517, 518–521; Rodríguez Vázquez, CDT 12 (1) (2020), 690, 696–698. 320 Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24 para. 50; A-G Bot, Opinion of 6 September 2018 in Case C-386/17, ECLI:EU:C:2018:670 para. 76. 321 Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24 para. 51; A-G Bot, Opinion of 6 September 2018 in Case C-386/17, ECLI:EU:C:2018:670 para. 77. 322 Stefano Liberato v. Luminita Luisa Grigorescu (Case C-386/17), ECLI:EU:C:2019:24 para. 52; von Hein/Grohmann, FamRZ 2019, 1167, 1168; Muir Watt, RCDIP 2019, 487, 499–501. 323 A-G Bot, Opinion of 6 September 2018 in Case C-386/17, ECLI:EU:C:2018:670 para. 88; Muir Watt, RCDIP 2019, 495, 501–503; Barrière Brousse, Clunet 2019, 1235, 1240; Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 26; cf. also Dimmler, FamRB 2019, 174, 175. 324 von Hein/Grohmann, FamRZ 2019, 1167, 1169; Antomo in Pfeiffer/Lobach/Rapp (ed.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 27; cf. also Rodríguez Vázquez, CDT 12 (1) (2020), 690, 699. 325 Muir Watt, RCDIP 2019, 487, 501–503. 326 Legrand, Petites Affiches n° 53, 14 mars 2019, 7, 10.

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Article 21 Right of the child to express his or her views 1. When exercising their jurisdiction under Section 2 of this Chapter, the courts of the Member States shall, in accordance with national law and procedure, provide the child who is capable of forming his or her own views with a genuine and effective opportunity to express his or her views, either directly, or through a representative or an appropriate body. 2. Where the court, in accordance with national law and procedure, gives a child an opportunity to express his or her views in accordance with this Article, the court shall give due weight to the views of the child in accordance with his or her age and maturity. I. General remarks . . . . . . . . . . . . . . . . .

1

II. Scope . . . . . . . . . . . . . . . . . . . . . . . .

4

III. Autonomous determination of minimum standards . . . . . . . . . . . . . . . . . . . . .

5

IV. Art. 21(1) Brussels IIter – Opportunity to express views . . . . . . . . . . . . . . . . . . . 7 1. General remarks . . . . . . . . . . . . . . . . . 7 2. The child’s capacity to form his or her own views . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Genuine and effective opportunity to express his or her views . . . . . . . . . . . . . . . . . . 12

4. Direct hearing or hearing through a representative or appropriate body . . . . . . . . . . . . 5. Type of hearing . . . . . . . . . . . . . . . . . . 6. Best interests of the child as limit to the expression of views . . . . . . . . . . . . . . . . 7. Further exceptions . . . . . . . . . . . . . . . . V. Art. 21(2) Brussels IIter – Taking the views expressed into account . . . . . . . . . . . . .

13 17 19 22 23

VI. Failure to hear the child as grounds for refusal of recognition or enforcement (Art. 39(2) Brussels IIter) . . . . . . . . . . . . 25

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in Pfeiffer/Lobach/Rapp, Europäisches Familien- und Erbrecht (2020) 13; Böhm, Das Recht des Kindes auf Meinungsäußerung (Art 21 Brüssel IIb-VO), in Garber/Lugani, Handbuch zur Brüssel IIb-VO (2022) 273; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Garber/Lugani, Die neue Brüssel IIb-VO, NJW 2022, 2225; Garber/Lugani, Die neue Brüssel IIb-VO, Zak 2022, 204; Gruber, Die Neufassung der EuEheVO, IPRax 2020, 393; Holzmann, Brüssel IIa VO: Elterliche Verantwortung und internationale Kindesentführungen (2008); Menne, Grenzüberschreitendes Kindschaftsrecht in der familiengerichtlichen Praxis: Besuchsregelungen, Kindesanhörung, Anerkennung ausländischer Entscheidungen, internationale Richternetzwerke, iFamZ 2015, 312; Schulz, Die Neufassung der Brüssel IIa-Verordnung, FamRZ 2020, 1141; Weller, Die Reform der EuEheVO, IPRax 2017, 222.

I. General remarks Art. 21 Brussels IIter – in accordance with Art. 24(1) of the CFR and Art. 12 of the UN Convention on the Rights of the Child (CRC) – provides for the right of the child to express his or her views in proceedings concerning parental responsibility. The purpose of the provision is to promote children’s free expression to their views in proceedings concerning them in order to be able to consider the interests of the child in the decisions to be made.1

1

Art. 21(1) Brussels IIter regulates whether (or under what conditions) a court is to gather the child’s views in proceedings concerning parental responsibility; Art. 21(2) Brussels IIter lays down the criteria according to which the court is to regard the views the child has actually expressed in making decisions.

2

The legal situation created by Art. 21 Brussels IIter differs from the legal situation of Brussels IIbis, 3 which up till now in Art. 11(2) of Brussels IIbis provided for a uniform duty for the child to be heard only for judgments concerning return pursuant to Arts. 12 and 13 of the HCA. The effect of Art. 21 Brussels IIter is to create a procedural rule on the level of European law that is directly binding in the Member States concerning the conditions according to which the court is to hear the child and to re1 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/23; Garber/Lugani, NJW 2022, 2225, 2228; Garber/Lugani, Zak 2022, 204, 206.

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Art. 21 Brussels IIter Right of the child to express his or her views gard the child’s views which results in a certain level of harmonising of the way in which the child is heard beyond the borders of the national jurisdictions.2 The practical details of conducting the hearing remain a matter for national legislation and procedures, however.3

II. Scope 4

The provision applies – as the wording expressly makes clear – to all proceedings on parental responsibility. It therefore applies regardless of whether a connection exists to proceedings in matrimonial matters or to other proceedings or not4, or whether contentious or non-contentious proceedings are concerned.5 The scope of the provision is also expressly extended via Art. 26 Brussels IIter to return proceedings pursuant to the HCA.

III. Autonomous determination of minimum standards 5

Art. 21 Brussels IIter lays down for the first time particular uniform, autonomous minimum standards that apply to all Member States to all proceedings concerning parental responsibility that serve the judicial decision of the court under which preconditions a child is to be given the opportunity to express his or her views (Art. 21(1) Brussels IIter) and what significance is to be attached to the views expressed by him or her in making decisions (Art. 21(2) Brussels IIter).

6

The practical details of conducting the hearing remain a matter for national legislation and procedures, however – as the wording of the provision expressly lays down.6 This concerns – as recital 39 Brussels IIter expressly states – on the one hand the question of who the child is to be heard by (personally by the decision-making body or a social worker or a social education worker or an expert or the youth welfare office, etc. that would simultaneously report the results to the court) and on the other hand the question how or where the hearing is to take place (e.g, directly in the courtroom or at the child’s home or by video conference, etc.)7 To some extent large differences exist between the individual Member States with respect to how hearing the child is practically conducted in matters of parental responsibility.8

IV. Art. 21(1) Brussels IIter – Opportunity to express views 1. General remarks 7

Art. 21(1) Brussels IIter regulates whether (or under which conditions) a court is to gather the child’s views in proceedings on parental responsibility. 2. The child’s capacity to form his or her own views

8

The provision makes the court’s duty to give a child opportunity to express his or her views in proceedings on parental responsibility solely contingent upon him or her being able to form his or her

2 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/29; Garber/Lugani, NJW 2022, 2225, 2228. 3 See also recital 39 Brussels IIter; cf. also Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/30; Garber/Lugani, NJW 2022, 2225, 2228; Garber/Lugani, Zak 2022, 204, 206; Weller, IPRax 2017, 222, 227. 4 Recital 7 to Brussels IIter; Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 44; on the previous Commission proposal, see also Weller, IPRax 2017, 222, 227. 5 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/27; Brosch, GPR 2020, 179, 184. 6 See also recital 39 to Brussels IIter; cf. also Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/30; Weller, IPRax 2017, 222, 227. 7 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 45; Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/30; Weller, IPRax 2017, 222, 227; Brosch, GPR 2020, 179 184. 8 For an overview of the practice of child hearings in various European states, see Menne, iFamZ 2015, 315, 316.

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own views and being able to express them.9 This is determined solely by the capacity of the child to form his or her own views. The child’s right to express his or her own views is not based on age10 or on having reached a certain 9 level of maturity.11 Thus, the court may not refrain from gathering the child’s views simply because the child has not reached as certain minimum age or level of maturity.12 In this way Art. 21(1) Brussels IIter deviates from Art. 11(2) of Brussels IIbis, which until now made hearing the child (concerning judgments pursuant to Arts. 12 and 13 of the HCA) contingent on whether the hearing seemed inappropriate based in the child’s age or level of maturity.13 Thus, the child’s age and cognitive development may only have an effect on the question of the hearing to the extent that these circumstances already prevent the child from forming his or her own views.14 In the context of the practical details for conducting the hearing (to be selected according to national law) or as a further consequence of Art. 21(2) Brussels IIter, the significance of the child’s age and maturity may be considered in taking account of the views expressed. A precondition for the capacity to form his or her own views is the child’s capacity to have insight into 10 and understanding of forming his or her own views. It is not necessary, however, for the child to have the capacity to be able to communicate his or her will in words.15 Rather, if a (younger) child is not yet able to communicate its will verbally, its views are to be ascertained non-verbally, such as through playing, drawing or body language.16 Even very young children already possess the capacity to form their own views.17 It may be assumed that only infants and very young children do not possess the insight and understanding to form their own views.18

11

3. Genuine and effective opportunity to express his or her views Art. 21(1) Brussels IIter does not only refer to hearing the child per se, but also to the possibility for the child to be heard. The right of the child to be heard does not absolutely require conducting a hearing before the court. Rather, the court is obliged: 1. to make the legal proceedings and conditions available to the child that enable him or her to express his or her views freely, and 2. to gather these views.19

12

4. Direct hearing or hearing through a representative or appropriate body Art. 21(1) Brussels IIter stipulates that the child is to be given the opportunity to express his or her views “directly or through a representative or appropriate body”. Recital 39 on Brussels IIter states, however, that it remains a matter for the Member States to stipulate in national legislation and proceedings who is to conduct the hearing with the child. Accordingly, it is not the purpose of the Regulation to stipulate whether the child should be heard by the judge personally or by a specially trained expert who then gives a report to the court.

9 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/32. 10 For the age limits in different Member States see Völker/Steinfatt, FPR 2005, 415; Weller, IPRax 2017, 222, 227. 11 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/32. 12 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/32. 13 COM (2016) 411 final p. 17; Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 45 n. 108; Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/32; Schulz, FamRZ 2020, 1141, 1143 n 27; Weller, IPRax 2017, 222, 227. 14 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/32. 15 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/35. 16 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/35. 17 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/35. 18 Holzmann, Kindesentführungen, p. 187. 19 Aguirre Zarraga (Case C-491/10 PPU), ECLI:EU:C:2010:828.

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Art. 21 Brussels IIter Right of the child to express his or her views 14

An indirect hearing by a representative or an appropriate body is also possible. The term “representative” should not be understood as referring to the child’s legal representative (such as a parent) but to any legal advisor who may have been appointed for the proceedings.20 The term “appropriate body” includes the youth welfare office or natural persons such as social workers, social education workers or experts. These must of course report their results to the court.

15

The provision does not address the question which kind of hearing is to be selected and when; rather, these are questions pertaining to the practical details of conducting the hearing, the regulations of which Brussels IIter reserves for national procedural law.21

16

The alternative of hearing the child via a representative or appropriate body is meant to ensure that in arranging the practical details for conducting hearings the Member States also take account of situations in which conducting a hearing with the child personally would be detrimental to his or her interests for various reasons and is therefore not practical.22 In order to ensure that the provision is practically effective, the Member States within the meaning of Art. 21(1) Brussels IIter will have made provision that (at least) in such situations the child is given opportunity to express his or her will to the court in another manner.23 5. Type of hearing

17

Recital 39 on Brussels IIter states, however, that it remains a matter for the Member States to stipulate in national legislation and proceedings who is to conduct the hearing with the child.

18

Pursuant to recital 53 Brussels IIter, the option of a hearing by video conference should also be considered above all if the child is abroad and technical capabilities allow it. 6. Best interests of the child as limit to the expression of views

19

Recital 39 Brussels IIter states that while remaining a right of the child, hearing the child cannot constitute an absolute obligation but must be assessed taking into account the child’s best interests. This restriction is apparent in the ECJ’s rulings:24 even if a hearing remains a right of the child’s, it follows from Art. 24 of the CFR that a hearing does not constitute an absolute obligation. Rather, the court possesses a certain amount of discretion in respect of the question whether the child is to be heard or not, taking into account the individual circumstances and against the backdrop of the child’s best interests.25

20

Thus, a hearing pursuant to 21(1) Brussels IIter should also lapse if it would be detrimental to the child’s best interests due to certain circumstances.26 For example, this could include cases in which the child is already so heavily affected by the conflict between the parents that he or she cannot be expected to be able to express his or her views on rights of custody or contact during the proceedings.27

21

This corrective measure is, however, only to be employed very sparingly because restricting the hearing too generously on grounds of protecting the child’s best interests may conflict with the obligation to grant him or her a genuine and effective opportunity to express his or her views.28 Assessment should therefore be made on a case by case basis whether it is necessary in the child’s actual situation to refrain from gathering his or her views, or whether endangering the child’s best interests by the court conducting a hearing personally can be combatted by offering the child other options for expressing his or her views.29 20 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 45 n 104; Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/39; Schulz, FamRZ 2020, 1141, 1143 n 28. 21 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/40. 22 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/41. 23 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/41. 24 Aguirre Zarraga (Case C-491/10 PPU), ECLI:EU:C:2010:828. 25 Aguirre Zarraga (Case C-491/10 PPU), ECLI:EU:C:2010:828. 26 Recital 39 zur Brussels IIter; cf. also Schulz, FamRZ 2020, 1141, 1143. 27 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/42. 28 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/43. 29 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/43.

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7. Further exceptions Recital 57 on Brussels IIter states that the child does not have to be given an opportunity to express 22 his or her views if the proceedings have only affected the child’s property and provided that giving such an opportunity was not required in light of the subject matter of the proceedings. This circumstance may not result in refusing recognition and enforcement, however, the child’s best interests must have been taken into account when the judgment was handed down.

V. Art. 21(2) Brussels IIter – Taking the views expressed into account Art. 21(2) Brussels IIter determines what significance is to be attached to the views expressed by him or her in making decisions. According to this, the child’s views are to be given due weight. This means that the court is to examine the substance of the child’s views against the background of what would best serve his or her interests and includes the views in the judgment process. However, the court is not bound to the views expressed, neither does it always necessarily have to give them precedence before other points.30

23

In accordance with Art. 24(1) sentence 3 of the CFR and Art. 12(1) of the CRC, the age and maturity 24 of the child are determinative with respect to the question of taking account of the views expressed by the child. With the child’s increasing age and greater level of maturity as well as with the growing significance of the decision to be made concerning his or her future life, more and more weight is to be attached to the desires articulated by the child.31

VI. Failure to hear the child as grounds for refusal of recognition or enforcement (Art. 39(2) Brussels IIter) Pursuant to Art. 39(2) Brussels IIter (in conjunction with Art. 41 Brussels IIter for enforcement) a 25 court in the recognising state or enforcing state may as a rule refuse the recognition or enforcement of a decision in matters of parental responsibility if it was given without the child who is capable of forming his or her own views having been given an opportunity to express his or her views in accordance with Art. 21 Brussels IIter. Thus the yardstick whether a failure to hear the child in proceedings leads to a refusal of recognition or enforcement in any particular case or not is no longer the national procedural legislation of the recognising or enforcing state – in contrast to Art. 23(b) of Brussels IIbis –, but the uniform standards for hearings established in Art. 21(1) Brussels IIter.32 Also see recital 57 on Brussels IIter: “As concerns the opportunity given to a child to express his or her views, it should be for the court of origin to decide about the appropriate method for hearing a child. Therefore, it should not be possible to refuse recognition of a decision on the sole ground that the court of origin used a different method to hear the child than a court in the Member State of recognition would use. The Member State where recognition is invoked should not refuse recognition where one of the exceptions from this particular ground for refusal as permitted by this Regulation applies. The effect of those exceptions is that it should not be possible for a court in the Member State of enforcement to refuse to enforce a decision on the sole ground that the child was not given the opportunity to express his or her views, taking into account his or her best interests, if the proceedings only concerned the property of the child and provided that giving such an opportunity was not required in light of the subject matter of the proceedings, or in the case of the existence of serious grounds taking into account, in particular, the urgency of the case. Such serious grounds could be given, for instance, where there is imminent danger for the child’s physical and psychological integrity or life and any further delay might bear the risk that this danger materialises.”

30 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/27. 31 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/44. 32 Antomo in Pfeiffer/Lobach/Rapp, Familien- und Erbrecht IX p. 13, 46; Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/50; Schulz, FamRZ 2020, 1141, 1146; Brosch, GPR 2020, 179, 186.

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The hearing of the child is also a precondition for the direct enforcement of “privileged” decisions pursuant to Art. 42(1) Brussels IIter.

27

It is to be certified on the form for be used for issuing certificates in Annexes III, Vand VI that the child concerned was capable of forming his or her own views and that the child was given a genuine and effective opportunity to express his or her own views pursuant to Art. 21 Brussels IIter. In this way Brussels IIter also makes the criteria of Art. 21(1) Brussels IIter on hearing the child in proceedings serving the judicial decision of the court into the yardstick for issuing that certificate which is the precondition for the direct enforcement of the decision in question in the other Member States.33

28

Recital 71 Brussels IIter states that the obligation under Brussels IIter to give the child the opportunity to express his or her views should not apply to authentic instruments and agreements, but the right of the child to express his or her views pursuant to Art. 24 of the CFR and Art. 12 of the CRC continue to apply.

Chapter III International Child Abduction (Art. 22–Art. 29)

Introduction to Articles 22–29 Bibliography: 1980 Hague Convention: Beaumont/McEleavy, The Hague Convention on international Child Abduction, (1999); Gallant, Enlèvement international d’enfants: la convention de La Haye du 25 octobre 1980, Jurisclasseur int., Fasc. 549-30 (2019); Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction Convention, HCCH Publications (1982); Porcheron, La jurisprudence des deux Cours européennes (CEDH et CJUE) sur le déplacement illicite d’enfants: vers une relation de complémentarité?, Clunet 2015, 821. Brussels IIbis Regulation: Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles II bis, Rev. Crit. DIP. 2005, 569; Armstrong, L’articulation des règlements communautaires et des conventions de La Haye, in: Fulchiron/Nourissat, Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005) p. 111; Boele-Woelki/Gonzalez Beilfuss (eds.), Brussels IIBis. Its impact and Application in the Members States (2007); Colienne/Pfeiff, Les enlèvements internationaux d’enfants. Convention de La Haye et Règlement Bruxelles II bis, RTD familial 2009, 351; Deflers/Butruille-Cardew, Les apports du Règlement Bruxelles IIbis en matière d’enlèvements internationaux d’enfants, Gaz. Pal. 2005, 7; Devers, Les enlèvements d’enfants et le règlement Bruxelles II bis, in: H. Fulchiron (ed.), Les enlèvements d’enfants à travers les frontières, (2004) p. 33; 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, (2005) p. 223; Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois, Coll. Droit et Notariat, t. 9 (2004) pp. 71 et seq.; Gallant, Règlement Bruxelles II bis, Rép. dr. int. Dalloz (2013); Godechot-Patris/Lequette, Mineur, Rép. dr. int. Dalloz (2012); McEleavy, The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?, JPrIL, vol. 1, April 2005, p. 5; Schulz, The New Brussels II Regulation and the Hague Conventions of 1980 and 1996, IFL, March 2004, p. 22. Brussels IIter Regulation: Impact assessment, Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and in international child abduction (recast), SWD(2016) 207 final; Corneloup/Égéa/Gallant/JaultSeseke, Divorce, responsabilité parentale, enlèvement international – Commentaire du règlement n°2019/1111 du 25 juin 2019 (Bruxelles II ter), Bruylant, to be published; Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du (ter)rain, Rev. crit. DIP 2020, 215; Gallant, Le nouveau Règlement “Bruxelles II ter”, AJ Fam. 2019, p. 401; Devers/Farge (eds), Règlement Bruxelles II ter, Dr.fam. n°7–8 2022, Dossier 12 et seq.; Mailhé, Bruxelles II, troisième génération, JCP G 2019, 1109; Monéger, Les enlèvements d’enfants dans le projet de révision du Règlement Bruxelles II bis, in: dossier Enlèvement international d’enfant, AJ Fam. 2018, 538; Musseva, The recast of the Brussels II bis regulation: the sweets and sour fruits of unanimity, ERA Forum, Journal of the Academy of European Law (2020); Nuyts, Droit international privé européen, Chronique, Journal de droit européen 1er févr. 2021, n°276, p. 74; Thomas, La procédure de retour de l’enfant à l’aune du règlement Bruxelles 2 33 Böhm in Garber/Lugani, Handbuch zur Brüssel IIb-VO note 9/58.

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ter, Clunet 3/2020, n°9, p. 897; Wilderspin, Droit international privé de l’Union européenne (2019, Chronique coordonnée par Louis d’Avout, Journal du droit international (Clunet) n° 4, Octobre 2020, chron. 10, spéc. P. 58; Zanobetti, Un nuovo atto di diritto internazionale privato in materia matrimoniale, di responsabilita genitoriale e di sostrazione minori: il regolamento UE 2019/1111, editoriale del 15 luglio 2019.

Preliminary Remarks Child abduction is fully regulated under the Hague Convention of 25 October 1980.1 The spirit of the whole system of return of the child in the 1980 Hague Convention is quite specific: The aim is, as soon as possible, to return the child to the State where he or she was before being moved, irrespective of the substance of the case, that is to say, irrespective of any change in custody and access rights. The purpose of the action for restitution is to restore the situation prior to the wrongful removal, by putting an end to a situation deemed wrongful. The authorities to which an application for return is made must not rule on the substance of rights of custody, as long as it is not established that the conditions for return are fulfilled, and their decision on return does not affect the rights of custody as it existed.

1

The fight against wrongful removal is also enshrined in the fundamental rights of the child, since 2 Art. 11 of the International Convention on the Rights of the Child imposes an obligation on States Parties to take measures to combat wrongful removal, including through international or bilateral conventions. Within the Brussels IIbis and Brussels IIter Regulations, the wrongful removal of children is covered 3 by three sets of provisions: Some are concerned with the effect of judgments, others concern jurisdiction, while others specifically concern the cooperation of authorities in proceedings for the prompt return of the wrongfully removed child. In so far as the Brussels II bis Regulation laid down a single article – certainly substantial – on the latter point,2 the Brussels IIter Regulation chose to devote to the issue of the procedure for prompt return a whole chapter and no less than 8 articles, thus making an important change to the Brussels IIbis Regulation, at least in quantitative terms.3 The bias of the Brussels IIter Regulation, which takes over that already adopted by the Brussels IIbis Regulation, is not to superimpose new rules on those already existing in the Member States which are all parties to the 1980 Hague Convention. Thus, Art. 96 of the Brussels IIter Regulation, which governs the relationship between the Regulation and the 1980 Convention, states that: “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 continue to apply as complemented by the provisions of Chapters III and VI of this Regulation. Where a decision ordering the return of the child pursuant to the 1980 Hague Convention which was given in a Member State has to be recognised and enforced in another Member State following a further wrongful removal or retention of the child, Chapter IV shall apply”.

4

Finally, in order to facilitate the reading, we would like to clarify some terminology. For the Member State where the child was habitually resident immediately before the wrongful removal or retention, we use the shorter term “State of origin”. For the State to which a child has been wrongfully removed or is wrongfully retained, we use the term “Refuge State” or “State where the child is”.

5

1 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (HCCH 1980 Child Abduction Convention). Perez-Vera, Explanatory Report. 2 Art. 11 Brussels IIbis. 3 Chapter III: International child abduction, Arts. 22 to 29 Brussels IIter.

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Article 22 Return of the child under the 1980 Hague Convention Where a person, institution or other body alleging a breach of rights of custody applies, either directly or with the assistance of a Central Authority, to the court in a Member State for a decision on the basis of the 1980 Hague Convention ordering the return of a child under 16 years 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, Articles 23 to 29, and Chapter VI, of this Regulation shall apply and complement the 1980 Hague Convention.

I. Introductory Remarks 1

As already done in Art. 11(1) of the Brussels IIbis Regulation, Art. 22 of the new Regulation reproduces this idea that, in relation to the wrongful removal of children, the Regulation complements and does not replace the 1980 Hague Convention. It is thus based on the principle of the combined application of the 1980 Hague Convention and the Brussels IIter Regulation in cases of wrongful removal of children within the European Union.1 It is therefore necessary to define the boundaries of the situations in which this combined application of the Hague Convention and the Brussels IIter Regulation will be called upon to intervene (I) and then to determine which provisions of the Regulation will be additional to those of the Hague Convention (II).

II. Definition of situations subject to the combined application of the Regulation and the 1980 Hague Convention 2

As already noted, the Brussels IIter Regulation supplements the Convention without replacing it. This implies, on the one hand, that the provisions of the Regulation on the wrongful removal of children do not constitute a complete and independent set of rules, but must, on the contrary, be read in the light of the 1980 Hague Convention. This means, on the other hand, that, in the interests of consistency between the two texts, the basic concepts on which the system of the 1980 Hague Convention is based are fully respected by the Brussels IIter Regulation, as is the case with the concept of wrongful removal and the spirit of the prompt return mechanism which underpins the entire mechanism established by the Hague Convention. In that regard, Art. 22 reproduces the essential elements required by the 1980 Hague Convention for an application for prompt return to be made, in terms of both the procedure itself and the classification of the wrongful removal.

3

From the point of view of the return procedure, Art. 22 refers to the elements which characterise an application for prompt return within the Convention. Under the system of the 1980 Hague Convention, prompt return is ordered or, where appropriate, refused by a judicial or administrative authority. That said, the 1980 Hague Convention offers the applicant several procedural remedies. Although it allows direct referral to a judicial or administrative authority,2 it nevertheless favours an indirect procedure through the intervention and assistance of the Central Authorities.3 It thus appears that the entire return procedure is based on a system of cooperation between the authorities of the various States concerned and on the establishment of Central Authorities to be designated by each Contracting State.

4

Art. 22 of the Brussels II ter Regulation likewise refers to the classification of wrongful removal which specifically allows the applicant to bring an action for the prompt return of the child. All the ele-

1 This complementarity is also confirmed by Recitals (17) and (40). On this point, see CJEU, 19 September 2018, C.E and N.E, (Cases C-325/18 PPU and C-375/18 PPU), ECLI:EU:C:2018:739 para. 48, 50, Journal du Droit international 2019, 1492, with note Wilderspin. 2 Art. 29 of the Convention. 3 Arts. 8 to 10 of the Convention.

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ments of that classification are covered by Art. 22, whether the breach of rights of custody or the geographical elements of the wrongful removal.4 With regard to the concepts of rights of custody and wrongful removal or detention, it is observed that 5 the Regulation provides a definition similar to that of the 1980 Hague Convention in Arts. 2(9) and 2(11).5 As regards the definition of wrongful removal, however, there is a difference in wording between the two regulations, since the Brussels IIter Regulation chose to delete a clarification made by the Brussels IIbis Regulation with regard to joint custody, presumably in order to bring it formally closer to the definition laid down in the Hague Convention.6 The geographical aspects of wrongful removal are also present in Art. 22, since it is stated that the child must have been removed or detained in a State other than that in which he or she was habitually resident immediately before the removal or detention.

6

However, two important clarifications need to be underlined. First, Art. 22 states that the specific rules of the Regulation will be added to the provisions of the Convention in the context of an application for prompt return only in the event of a wrongful removal taking place between two Member States of the European Union.7 Not only must the child be wrongfully removed or retained in one Member State, but his or her habitual residence immediately before the removal must be in another Member State of the European Union. Only such a geographical configuration allows the two instruments to be applied in combination.8 The solution was already contained in Art. 11(1) of the Brussels IIbis Regulation.

7

Such a solution should also be extended to Art. 9 of the Brussels IIter Regulation (equivalent to Art. 10 8 of the Brussels IIbis Regulation), which provides for the retention of jurisdiction on the substance of the case by the authorities of the habitual residence immediately before the wrongful removal and organises the possible transfer of that jurisdiction to the authorities of the State in which the removed child would have acquired a new habitual residence.9 Next, Art. 22 takes care to state that the combined application of the Regulation and the Convention 9 concerns a child under the age of 16.10 Such a clarification, which was not included in the Brussels IIbis Regulation, is justified by the fact that the new Regulation now contains a general and substantive definition of the child. Art. 2(6) of the new Regulation provides that the child referred to in the Regulation “means any person below the age of 18 years”. However, in order for the Regulation and the 1980 Hague Convention to be easily articulated in the context of wrongful removal, the specific provisions on child abduction contained in the Brussels IIter Regulation must necessarily be aligned with the personal scope of the 1980 Hague Convention, which concerns only children under 16 years of age.11 This solution should not bring any particular complication, because child abductions systematically involve young children.

III. The additional provisions of the Brussels IIter Regulation Art. 22 of the Brussels IIter Regulation, as did Art. 11(1) of the Brussels IIbis Regulation, sets out the provisions which supplement the 1980 Hague Convention in the event of wrongful removal of a 4 For the constituent elements of the wrongful removal in the 1980 Hague Convention, see Art. 3 of the Hague Convention. Gallant, Enlèvement international d’enfants: la convention de La Haye du 25 octobre 1980, Jurisclasseur int., Fasc. 549-30, 2019; Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction Convention, 1982, n°64 et seq., p. 444. 5 CJEU 9 October 2014, (Case C-376/14 PPU), ECLI:EU:C:2014:2268. 6 The deleted clarification is, however, included in the preamble in Recital (18). On the whole of the concept of rights of custody, see supra Art. 2 notes 1 et seq. (Pintens). 7 CJEU 9 October 2014, (Case C-376/14/PPU), ECLI:EU:C:2014:2268. 8 For illustrations, CJEU 1 July. 2010, Povse, (Case C-211/10 PPU), ECLI:EU:C:2010:400; CJUE 22 December. 2010, Mercredi, (Case C-497/10 PPU), ECLI:EU:C:2010:829. 9 CJUE 24 March 2021, SS v. MPP, (Case C-603/20 PPU), ECLI:EU:C:2021:231; RJPF Sept. 2021. 33, with note Godechot-Patris; Dr. fam. July. 2021, p. 39, with note Devers. 10 See also Recital (17). 11 Art. 4 of the 1980 Hague Convention.

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Art. 23 Brussels IIter Receipt and processing of applications by Central Authorities child. These are, first of all, the provisions of Chapter III, which contains Art. 22, which are Arts. 23 to 29 of the Regulation. These are then the provisions of Chapter IV (General Provisions), which concern Arts. 85 to 91 of the Regulation. 11

Arts. 23 to 29 correspond, with amendments, to the former Art. 11 of the Brussels IIbis Regulation. These are, as we will see later, specific provisions to the action for prompt return of the child. While Art. 11 of the Brussels IIbis Regulation, although relatively voluminous with its 8 paragraphs, contained all the provisions additional to the mechanism of the Hague Convention, it is now, in addition to Art. 22, seven articles that complement the existing provisions.

12

Unlike the provisions in Chapter III, Arts. 85 to 91 of the Regulation are not specific to wrongful removal. They concern any type of request that may be made under the Brussels IIter Regulation. Overall, they concern the role and powers of the authorities involved in the procedures of the Regulation. They concern, respectively, cooperation and communication between courts, collection and transmission of information, notification to the data subject of the request, non-disclosure of information endangering the health, safety or liberty of the child or any other person, legalisation of documents, questions of translation of the various acts.

Article 23 Receipt and processing of applications by Central Authorities 1. The requested Central Authority shall act expeditiously in processing an application, based on the 1980 Hague Convention, as referred to in Article 22. 2. Where the Central Authority of the requested Member State receives an application referred to in Article 22, it shall, within five working days from the date of receipt of the application, acknowledge receipt. It shall, without undue delay, inform the Central Authority of the requesting Member State or the applicant, as appropriate, what initial steps have been or will be taken to deal with the application, and may request any further necessary documents and information. 1

Art. 23 of the Brussels IIter Regulation refers to the intervention of the Central Authorities when, in accordance with Art. 8 of the Hague Convention, they are seised of an application for wrongful removal. This is a new feature of the Brussels IIter Regulation compared to the Brussels IIbis Regulation, which did not contain an equivalent provision.

2

The Central Authorities are the primary interlocutors of the applicant for the return of the child and will then forward the application to the competent judicial or administrative authorities of the State to which the child was wrongfully removed, so that they can decide on the return. The Central Authorities thus play a major role in the cooperation mechanism put in place. Their main role is to promote cooperation with the Central Authorities of other Contracting States and to encourage cooperation between competent judicial or administrative authorities. They must make every effort to promote the objective of the prompt return of the child, the search for his or her location, the provision of information to the child’s counterpart in the requested State, or even the study of an amicable solution between the parties involved in the procedure.1

3

In this context, Art. 23 of the Brussels IIter Regulation seeks to improve the speed of the prompt return procedure. It is divided into two paragraphs, the main purpose of which is to ensure the speed of processing of a request made to the Central Authority and good cooperation between Central Authorities of the requested and requesting Member States. It states first of all that “The requested Central Authority shall act expeditiously in processing an application” based on the 1980 Hague Convention. The wording is rather imperative and appears to be an obligation for the Central Authority. Art. 23 Brussels IIter then sets out its requirements. On the one hand, the Central Authority receiving an application must acknowledge receipt within 5 days of receipt. On the other hand, it must inform 1 Art. 7 of the 1980 Convention.

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Art. 24 Brussels IIter

“without undue delay” the Central Authority of the requesting State2 or the applicant of the steps already taken in the procedure. Finally, it may request any additional documents or information it deems necessary. The idea is clearly to facilitate exchanges between Central Authorities. As we will see,3 time is a crucial element in the context of wrongful removal of a child. So far, only judicial or administrative authorities had been called upon to act expeditiously.4 Neither the Hague Convention nor the Brussels IIbis Regulation contain such a direct injunction5 to the Central Authorities, which are however major actors in the process of prompt return.

Article 24 Expeditious court proceedings 1. A court to which an application for the return of a child referred to in Article 22 is made shall act expeditiously in proceedings on the application, using the most expeditious procedures available under national law. 2. Without prejudice to paragraph 1 a court of first instance shall, except where exceptional circumstances make this impossible, give its decision no later than six weeks after it is seised. 3. Except where exceptional circumstances make this impossible, a court of higher instance shall give its decision no later than six weeks after all the required procedural steps have been taken and the court is in a position to examine the appeal, whether by hearing or otherwise. In line with the spirit of the prompt return mechanism, it is imperative that the procedure is imple- 1 mented swiftly. The 1980 Hague Convention calls for it,1 although unfortunately, and in particular through the use of legal remedies, it sometimes takes several years before the child is brought back to the State of his or her habitual residence of origin. Thus, as a first step, Art. 11 of the Convention requires the authorities of the Contracting States to use emergency procedures. As a second step, it states that if the competent authorities have not taken a decision within six weeks of their referral, they may be asked to explain the delay by the applicant or one of the Central Authorities concerned. The wording is suggestive and not imperative, but it has at least the merit of existence. The European Court of Human Rights regularly monitors compliance with these requirements. The 2 ECtHR, which refuses to apply the Hague Convention directly, may nevertheless refer to its provisions where they are relevant to the area of the ECHR, through the right to a fair trial and respect for private and family life.2 It thus ensures that States provide procedural protection to the parties.3 It also regularly ensures that the authorities of the Contracting States of both texts take all necessary measures for the return of the wrongfully removed child, be it the requesting4 or the requested authorities.5 The 2 In this respect, it is worth noting a drafting error in the French version of the text which refers here to the “requested” Member State instead of the “requesting” Member State. 3 See infra Art. 24 notes 1 et seq. (Gallant). 4 See infra Art. 24 notes 1 et seq. (Gallant). 5 With the exception of Art. 9 of the Hague Convention, which states that “if the Central Authority which receives an application referred to in Art. 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be”. 1 See to this effect Concl. and Recomm. of the 7th Special Commission, Oct. 2017, spec. p. 2, www.hcch.net. 2 Marchadier, La contribution de la Cour européenne des droits de l’homme à l’efficacité des conventions de La Haye de coopération judiciaire et administrative, Rev. crit. DIP 2007, p. 677, spec. p. 681, n° 4; Pettiti, La jurisprudence de la CEDH et la convention de La Haye sur les enlèvements d’enfants, AJ fam. 2006, p. 185. 3 ECHR, 3 June 2014, No 10280/12, Lopez Guio v. Slovaquie: JCP G 2014, 832, with note Sudre, spec. n° 14. 4 ECHR, 5 April 2005, No 71099/01, Monory v. Romania and Hungary. 5 See in particular ECHR, 6 Dec. 2005, No 14600/05, Eskinazi et Chelouche v. Turkey: Dr. fam. 2006, comm. 44, with note Sudre; ECHR, 22 June 2006, n° 7548/04, Bianchi v. Switzerland: Dr. fam. 2008, étude 14, with note Gouttenoire; ECHR, 17 July. 2008, n° 58081/00 and 58411/00, Leschiutta et Fraccaro v. Belgium: Dr. fam. 2008, alerte 72; Gouttenoire, La famille dans la jurisprudence de la Cour européenne des droits de l’homme 2008–2009: Dr. famille 2010, étude 1, spec. p. 13; ECHR, 6 Nov. 2008, C. v. Switzerland: JCP G 2009, I, 104,

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Art. 24 Brussels IIter Expeditious court proceedings authorities’ passivity is considered to be contrary to respect for family life because of the (potential) disruption of the children with the parent from whom they were abducted, where it results in too long a period of time to process the return application6 or locate the child.7 Thus, a period of eleven months is considered excessive, whereas the requested authorities have not been able to justify the length of the procedure.8 Conversely, the ECtHR does not condemn States whose authorities have taken all appropriate measures to ensure the prompt return of the child.9 3

The Brussels IIter Regulation, like Art. 11(3) of the Brussels IIbis10 Regulation, adds some rules to the 1980 Hague Convention, which are intended to improve its functioning. Upon receipt of a request for prompt return on the basis of the Hague Convention, the authorities of the State of refuge “shall act expeditiously in proceedings on the application, using the most expeditious procedures available under national law”. The objective of speed already stated in the Brussels IIbis Regulation could thus have had an impact on national legislation.11 The Brussels IIter Regulation decides not only to confirm it but also to strengthen it.

4

Art. 24 of the new Regulation, read in the light of Recitals (40), (41) and (42), introduces a clarification which was not contained in the Brussels IIbis Regulation. It was addressed equally to all courts, while the Brussels IIter Regulation introduced a distinction between courts of first instance and higher courts. The courts of first instance seised of an application for return must therefore give a decision “no later than six weeks after” they are seised. The mandatory form used breaks the less restrictive tone used by the 1980 Hague Convention, which, as we have seen, in the event that the authorities have not taken a decision within the six-week period, merely gives the Central Authorities the opportunity to request a statement of the reasons for the delay.12 The new Regulation also contains a specific provision for higher courts, stating that they must give their judgment “no later than six weeks after all the required procedural steps have been taken and [they are] in a position to examine the appeal”. The sixweek period – identical at all levels of jurisdiction – runs from the date of referral to the courts of first instance, while it runs from the moment when all the necessary procedural steps have been taken for the higher courts.13 Recital 42 states:

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“Such steps could include, depending on the legal system concerned, service of the appeal upon the respondent, either within the Member State where the court is located or within another Member State, transmission of the file and the appeal to the appellate court in Member States where the appeal has to be lodged with the court whose decision is appealed, or an application by a party to convene a hearing where such an application is required under national law”.

6

Since the duration of the period is the same for all levels of courts, it might be thought that the contribution of the new Art. 24 of the Regulation remains very superficial and ultimately does not alter the content of Art. 11(3) of the Brussels IIbis Regulation. However, it appears that targeting the courts seised of an appeal is not entirely neutral. The remedies, although perfectly necessary, are likely to increase the length of the proceedings for the return of the child in an extraordinary manner. It was therefore necessary to point out that the short period of six weeks also applies to higher courts.

6 7 8 9 10 11 12 13

n° 12, with note Sudre; ECHR, 22 April 2010, n° 4824/06 et 15512/08, Macready v. Czech Republic: JCP G 2010, p. 512, with note Picheral; ECHR, 5 Nov. 2015, n° 21444/11, Henrioud v. France: JCP G 2015, 1333, with note Gouttenoire; D. 2016, p. 1048, with note Clavel/Jault-Seseke. ECHR, 1 Feb. 2011, No 23205/08, Karoussiotis c/Portugal: Dr. fam. 2012, with note Gouttenoire, La famille dans la jurisprudence de la Cour européenne des droits de l’homme, étude 6, spec. n° 18. ECHR, 1 Feb. 2011, No 775/08, Dore c/Portugal: Dr. fam. 2012, with note Gouttenoire, prec., spec. n° 18. ECHR, 21 Feb. 2012, No 16965/10, Karrer v Romania: Dr. fam. 2012, comm. 66, with note Bruggeman; ECHR, 13 Jan. 2015, No 35632/13, Hoholm c/Slovakia. See the decisions cited by Gouttenoire, La famille dans la jurisprudence de la Cour européenne des droits de l’homme 2008–2009, Dr. fam. 2010, étude 1, spec. p. 13. On all these rules in the context of the Brussels IIbis Regulation, Fulchiron, La lutte contre les déplacements d’enfants in Fulchiron/Nourissat (ed.), p. 223. See, for example, French law: Art. 1210-6 of the Code of Civil Procedure, which provides that an application for return made on the basis of the Hague Convention systematically benefits from the fastest inter partes procedure in the French civil procedure (expedited procedure on the substance of the rights). Art. 11 of the 1980 Hague Convention. In that regard, see Recital (42).

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Art. 24 Brussels IIter

Such an objective of expediency is absolutely essential in the prompt return mechanism. As the 7 child’s name indicates, the return of the child is deemed to be ordered immediately, without any decision being taken on the substance of the rights of custody, in order to put an end to the wrongful nature of the removal of the child. Unfortunately, too often, this return only takes place several years after the wrongful removal, in particular due to the exercise of legal remedies. The spread of the procedure over time leads to the perverse effect of establishing a wrongful situation on a lasting basis. And if, therefore, the return is still legally justified, it will in fact have far greater consequences for the persons concerned, and ultimately particularly detrimental to the child. One of the priorities for prompt return is therefore to combat the slow pace of the procedure. It should be noted in this regard that, adding to the text of the Regulation, Recital (42) states in fine that “ Member States should also consider limiting the number of appeals possible against a decision granting or refusing the return of a child under the 1980 Hague Convention to one”.

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In any case, only exceptional circumstances can justify the failure of the courts to rule within a sixweek period. The exact nature of those “exceptional circumstances” is not wholly clear and leaves room for interpretation. It seems quite clear that practical circumstances could be accepted, (e.g. time required for the appointment of an expert) would be probably more difficult to accept. In any case, those exceptions are an exception to the general rule and should be interpreted strictly.

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It should be noted that, by introducing an urgent preliminary ruling procedure, EU law has also con- 10 tributed to this objective of speeding up the procedure in cases of references for a preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the Brussels IIbis Regulation in cases of wrongful removal. In fact, the decisions given in that context were delivered within a relatively short period of time between the date of receipt of the application by the Court and the decision itself (approximately two months)14. National courts are thus placed in a situation where they can refer a question to the Court of Justice for a preliminary ruling without fear of slowing down the handling of the case. Finally, it should be noted that Recital (41) of the Brussels IIter Regulation supplements Art. 24 in that it suggests that Member States, in addition to a rapid procedure, use a form of specialisation of 15 courts:

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“Member States should, in coherence with their national court structure, consider concentrating jurisdiction for those proceedings upon as limited a number of courts as possible. Jurisdiction for child abduction cases could be concentrated in one single court for the whole country or in a limited number of courts, using, for example, the number of appellate courts as point of departure and concentrating jurisdiction for international child abduction cases upon one court of first instance within each district of a court of appeal”.

12

Some national legislation had, since the entry into force of the Brussels IIbis Regulation, made adjustments within their national procedures specifically to organise a form of specialisation of their courts.16

13

14 See e.g. CJEU, 11 July 2008, Rinau, (Case C-195/08 PPU), ECLI:EU:C:2008:406; Rev. crit. DIP 2008, 871, with note Muir Watt; D. 2009, 1564, with note Courbe/Jault-Seseke; JCP 2008. II, 10207, with note Devers; CJUE, 23 Dec. 2009, Deticek, (Case C-403/09 PPU), ECLI:EU:C:2009:810; AJ fam. 2010, 131, with note Boiché; D. 2010, 1585, with note Courbe/Jault-Seseke; CJUE, 1 July 2010, Povse, (Case C-211/10 PPU), ECLI:EU:C:2010: 400; JCP 2010. II, 956, with note Devers; CJUE, 22 Dec. 2010, Aguirre Zarraga, (Case C-491/10 PPU), ECLI: EU:C:2010:828; Rev. crit. DIP 2012, 172, with note Muir Watt; D. 2011, 1374, with note Jault-Seseke; CJUE 9 January 2015, Bradbrooke (Case C-498/14 PPU), ECLI:EU:C:2015:3; RJPF March 2015, p. 37, with note Godechot-Patris; Europe March 2015, p. 38, with note Idot; Procédures March 2015, p. 24, with note Nourissat. 15 With regard to the Brussels IIbis Regulation, Fulchiron, La lutte contre les déplacements d’enfants, in Fulchiron/Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, (2005), p. 223; Gallant, L’impact et l’application du règlement Bruxelles IIbis en France, in (Boele-Woelki/Gonzalez Beilfuss (eds.), Brussels IIbis: its impact and application in the members states (2007) p. 103. 16 See, for example, in France, since 2004, the competent courts for wrongful removal are specialised courts: Art. 1210-5 of the Code of Civil Procedure; Art. L. 211-12 and R. 211-12 Code of the Judicial Organisation.

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Art. 25 Brussels IIter Alternative dispute resolution

Article 25 Alternative dispute resolution As early as possible and at any stage of the proceedings, the court either directly or, where appropriate, with the assistance of the Central Authorities, shall invite the parties to consider whether they are willing to engage in mediation or other means of alternative dispute resolution, unless this is contrary to the best interests of the child, it is not appropriate in the particular case or would unduly delay the proceedings. 1

Art. 25 of the new Brussels IIter Regulation has no equivalent in the Brussels IIa Regulation. It is a significant innovation, since it proposes that national courts invite the parties to use mediation or any other alternative means of dispute resolution. Mediation is sometimes referred to as prevention of wrongful removal, and the Hague Conference is working on this,1 without this having resulted in any harmonisation between States. In the context of the Regulation, mediation, like other alternative dispute resolution, is envisaged as a remedy to the displacement that has been made but which could be resolved through a discussion between the parties and, why not, an amicable solution at the State of residence of the child. The first part of Art. 25 Brussels IIter is in this sense, and one can only welcome the position taken by the Brussels IIter Regulation, which encourages this type of solution with regard to the wrongful removal of children.2 The provision must be read in accordance with the specific provisions of the Brussels IIter Regulation on the movement within the European Union of agreements concluded between parents.3 Agreements concluded in matters of parental responsibility benefit from a specific system of recognition and enforcement.

2

Technically, Art. 25 Brussels IIter states that the court seised of an application for prompt return “shall invite the parties to consider whether they are willing to engage in mediation or other means of alternative dispute resolution”. As can be seen, this is an obligation for the court seised to invite the parties to reflect on possible mediation. On the other hand, there is no obligation on the parties: The text is even keen to respect the desire of the parties to maintain the contentious solution or, conversely, to use an attempt at mediation. Such an invitation shall be made either directly by the court seised or through the Central Authorities. From a temporal point of view, the invitation must be made “as early as possible and at any stage of the proceedings”. Although the wording leaves perplexed and may seem contradictory – if the invitation to consider mediation is to take place as early as possible in the course of the proceedings, it is curious to consider that it can also take place at any stage of the procedure – the reading which seems most reasonable then leads to the assumption that even if an invitation to use mediation may take place at any time during the procedure, the sooner will be the best.

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In any event, while national courts are in principle obliged to make such an invitation, several exceptions significantly reduce their scope. The authorities seised may not invite the parties to consider possible mediation or any other alternative means of settling disputes if “this is contrary to the best interests of the child, it is not appropriate in the particular case or would unduly delay the proceedings”. It can be seen that, although a discussion between the parties through mediation is always absolutely desirable, it is in practice unrealistic, since the crystallised parental conflict surrounding the wrongful removal of children is at its peak. In other words, it is difficult for parents who are confronted with wrongful removal of a child – from the point of view of both the perpetrator and the person who has done so – to put themselves around a table for discussion. It is these practical situations that are

1 See the various Guides to Good Practice on preventing Child Abduction: Preventive measures, 2005; Mediation, 2012: www.hcch.net. Adde Gallant, La prévention des déplacements illicites, in Les enlèvements d’enfants à travers les frontières, (2004) p. 427. For Preventive measures in french law, see Bonfils/Gouttenoire, Droit des mineurs: (3e éd. 2021) n°729 et seq.; Garé, Réflexions sur l’efficacité de la convention de La Haye du 25 octobre 1980 relative aux aspects civils de l’enlèvement international d’enfants, in Mélanges Mouly, 1998, vol. 1, p. 299, p. 301. 2 See also Recitals (35), (43). 3 Arts. 64 et seq. of the Regulation on the recognition and enforcement of authentic instruments and agreements.

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Art. 26 Brussels IIter

taken into account by Art. 25 Brussels IIter, because in some cases it would be counterproductive to offer mediation, which is simply a loss.4

Article 26 Right of the child to express his or her views in return proceedings Article 21 of this Regulation shall also apply in return proceedings under the 1980 Hague Convention. As regards the taking into account of the child’s speech, the Brussels IIbis Regulation contained a specific provision in Art. 11(2) requiring the court which intended to refuse return by means of the exceptions provided for in Arts. 12 and 13 of the 1980 Hague Convention to ensure that the child was heard, unless that would be inappropriate in the light of his or her age and degree of maturity. The Regulation thus brought the hearing of the child into the European process of prompt return, which was a contribution to the 1980 Hague Convention.1

1

Art. 26 of the Brussels IIter2 Regulation addresses this disadvantage while strengthening the right of 2 the child to express himself in return proceedings based on the 1980 Hague Convention. That right takes the form of a reference to Art. 21 of the Brussels IIter Regulation, which governs the right of the child to express his or her views before the courts of the Member States in the exercise of their jurisdiction. In view of its location within the Regulation, since Art. 21 is at the very end of Chapter II concerning the jurisdiction of the authorities in matrimonial matters and in matters of parental responsibility, and therefore outside Chapter III on international child abduction, it could have been considered that it should not apply in proceedings for the prompt return of the child. However, it was not the wish of the European legislature that decided to include it in the system concerning wrongful removal. Art. 21 Brussels IIter, referring to Art. 26 Brussels IIter, must be read in the light of the fundamental rights of the child, and more specifically Art. 12 of the International Convention on the Rights of the Child, which it clearly acts as a relay within the European Regulation.3 Under Art. 21 Brussels IIter,4 the competent authorities have two obligations, the first is to give the child a real and effective opportunity to be heard and the second is to assess the views expressed by the child.

3

The first obligation is for the courts of the Member States to give the child who is capable of forming 4 his or her own views a genuine and effective opportunity to express his or her views. By referring to the child “capable of forming his or her own views”, the new Regulation eliminates the disadvantage of the Brussels IIbis Regulation, which provided that the child shall be heard, “unless this appears inappropriate having regard to his or her age or degree of maturity”. The ambiguity of the formula that allowed the judge not to hear the child because of his or her degree of maturity has been pointed out: how can one be sure of the child’s degree of maturity until he or she has been heard?5 Thus, from now on, if the child’s capacity of forming his or her own views conditions the possibility of hearing the child, age and maturity, as we shall see, will be taken into account at a later stage, when the judge

4 In particular in cases of violence within the couple. See Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: la protection des enfants gagne du ter(rain), Rev. crit. DIP 2020, 215, spéc. n°18. 1 Gouttenoire, L’audition de l’enfant dans le règlement Bruxelles II bis, in Fulchiron/Nourissat (eds.), Le nouveau droit communautaire du divorce et de la responsabilité parentale (2005) p. 201; Ubertazzi, The Child’s right to be heard in the Brussels system, European Papers, Vol. 2 2017, n°1, p. 43. 2 See also Recital (39). 3 See also Art. 24(1) of the Charter of Fundamental Rights of the European Union. 4 See supra Art. 21 notes 1 et seq. (Garber). 5 Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II ter: la protection de l’enfant gagne du ter(rain), Rev. crit. DIP 2020, 215, spéc. n°30.

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Art. 27 Brussels IIter Procedure for the return of a child evaluates the opinion expressed by the child.6 In stating that this possibility must be genuine and effective, the text stresses that it is not a petition of principle. The authorities of the Member States must make every effort to ensure that the child who is capable of forming his or her own views can express his or her views. 5

This material provision is not intended to unify procedures related to the child’s voice in the Member States. The text states that this obligation on Member States remains governed by national laws and procedures.7 In particular, the legislations of the Member States determine when the hearing should take place and at what stage of the proceedings it should be conducted, whether the child should be heard by the judge himself or by a specially trained expert, where the hearing should take place and how it should be reported. Recital (53) adds that depending on the technical means available, the court could consider the use of video-conferencing or any other communication technology if this would be necessary and not contrary to the fair conduct of the proceedings. However, by asking the courts of the Member States to ensure that the child capable of forming his or her own views has the opportunity to be heard, the text lays down a minimum requirement common to the Member States and in line with the fundamental rights of the child.

6

The second obligation imposed on Member States by the text concerns the fate of the opinion expressed by the child. The new regulation places here the criterion of the child’s age and maturity, which should enable the judges who have heard the child’s opinion to assess its weight. In the context of the 1980 Hague Convention, the right of the child to express herself is not generally enshrined. However, in the framework of exceptions to the return of the child, Art. 13 of the 1980 Hague Convention envisages the possibility that a court seised of an application for prompt return may refuse such return 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 can be seen, the wording used is the same in the Convention and in the Regulation, and the mechanism is identical: the views expressed must be taken into account by the judge, in accordance with the age and maturity of the child. The provision is in line with Art. 12 of the International Convention on the Rights of the Child and more broadly, shows that the Brussels IIter Regulation takes into account more prominently than before the fundamental rights of the child resulting from the International Convention on the Rights of the Child but also from the Charter of Fundamental Rights of the European Union. It goes without saying that, from a generational perspective, this new Brussels II instrument could not not have strengthened its involvement in the rights of the child.8

Article 27 Procedure for the return of a child 1. A court cannot refuse to return a child unless the person seeking the return of the child has been given an opportunity to be heard. 2. The court may, at any stage of the proceedings, in accordance with Article 15, examine whether contact between the child and the person seeking the return of the child should be ensured, taking into account the best interests of the child. 3. Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it shall not refuse to return the child if the party seeking the return of the child satisfies the court by providing sufficient evidence, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return.

6 Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du ter(rain), Rev. crit. DIP 2020, 215, spéc. n°30. 7 See Recitals (39), (53) and (57). 8 Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du ter(rain), Rev. crit. DIP 2020, 215, spéc. n°29.

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4. For the purposes of paragraph 3 of this Article, the court may communicate with the competent authorities of the Member State where the child was habitually resident immediately before the wrongful removal or retention, either directly in accordance with Article 86 or with the assistance of Central Authorities. 5. Where the court orders the return of the child, the court may, where appropriate, take provisional, including protective, measures in accordance with Article 15 of this Regulation in order to protect the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention, provided that the examining and taking of such measures would not unduly delay the return proceedings. 6. A decision ordering the return of the child may be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child. I. Preliminary remarks . . . . . . . . . . . . . . . II. Paragraph (1) . . . . . . . . . . . . . . . . . . .

1 3

V. Paragraph (4) . . . . . . . . . . . . . . . . . . . 15 VI. Point (5) . . . . . . . . . . . . . . . . . . . . . . 18

III. Paragraph (2) . . . . . . . . . . . . . . . . . . .

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VII. Point (6) . . . . . . . . . . . . . . . . . . . . . . 24

IV. Paragraph (3) . . . . . . . . . . . . . . . . . . .

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I. Preliminary remarks Art. 27 Brussels IIter is one of the most substantial provisions of Chapter III of the new Regulation 1 on International Child Abduction. It contains no less than six paragraphs which complement the mechanism of the 1980 Hague Convention as regards the procedure for the return of the child.1 This conventional mechanism for the prompt return of the child has several key aspects. These proceedings are separate from proceedings on custody of the child and do not seek to rule on the substance of parental authority. It is a procedure based on the interests of the child and which consists of bringing an end to an wrongful situation as soon as possible with the aim of bringing the child back to his or her State of origin. In that context, the 1980 Hague Convention lays down a principle of the prompt return of the child, in the sense that once the wrongful removal is characterised, the authorities must order the return of the child to his country of origin without ruling on the substance of parental authority. Only a few strictly understood exceptions will allow the courts seised to refuse to order return. While such exceptions are absolutely necessary to compensate for the automatic return which might be dangerous for the child in certain circumstances, it appears that, if they were to be understood too broadly, they could reduce the effectiveness of the prompt return mechanism. The whole mechanism for the prompt return of the child as envisaged by the 1980 Hague Convention is thus based on a subtle balance and is possible only through privileged cooperation between the authorities of the two States concerned. Overall, the new Regulation contributes, as already done by the Brussels IIbis Regulation, to strength- 2 ening the mechanism for the return of the child by making it more difficult to refuse return, in particular where it is based on the existence of a serious risk of danger to the child in the event of return (Art. 13(1) b) of the 1980 Hague Convention). It is accompanied by a strengthening of the protection of the child and the taking into account of his or her fundamental rights.

II. Paragraph (1) The first paragraph of Art. 27 Brussels IIter reproduces identically the text of Art. 11(5) of the Brus- 3 sels IIbis Regulation. It prohibits the refusal of return if the applicant has not had the opportunity to be heard, irrespective of the ground for refusal of return. That requirement guarantees a certain degree of procedural fairness and should serve as a remedy for refusal decisions given without the applicant for return having been able to submit his observations to the court of the State in which the 1 On this point, see supra Art. 22 notes 1 et seq. (Gallant).

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Art. 27 Brussels IIter Procedure for the return of a child child is located. The courts seised of the application for return sometimes have the temptation to consider that if the applicant does not appear physically in the proceedings, it is that he is disinterested and that the return action he has brought was in fact for the sole purpose of creating difficulties for the other parent. Apart from the fact that such considerations should not be taken into account when deciding whether or not to order the return of the child, it is without the applicant’s geographical remoteness and the cost of such removal in certain cases. 4

It seems that the term “heard” should not be interpreted restrictively, since written testimony seems sufficient to satisfy the rule. To this end, the Commission, in its Practice Guide for the application of the Brussels IIbis Regulation, recalled that the possibilities offered by the Taking of Evidence Regulation could be used.2 Recital (53) of the Brussels IIter Regulation also provides that “where it is not possible to hear a party or a child in person, and where the technical means are available, the court might consider holding a hearing through videoconference or by means of any other communication technology unless, on account of the particular circumstances of the case, the use of such technology would not be appropriate for the fair conduct of the proceedings”.

III. Paragraph (2) 5

Art. 27(2) of the Brussels IIter Regulation is a novelty in relation to the Brussels IIbis Regulation. It introduces into the mechanism for prompt return the possibility for the authorities seised of a return request to organise a contact between the child removed and the parent requesting the return. Again, the text clearly refers to the fundamental rights of the child. This concerns the right of the child to maintain relations with both parents, as proclaimed by Art. 9–3 of the International Convention on the Rights of the Child and Art. 24–3 of the Charter of Fundamental Rights of the European Union. With this precaution, the text thus highlights the effort made to take account of the fundamental rights of the child: as we have seen above, the fundamental rights of the child are indeed very present in the new Regulation, whether it is the very principle of combating the wrongful removal of children, the expression and consideration of his or her opinion, or even more generally his or her best interests, referred to on numerous occasions.

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Technically, Art. 27(2) Brussels IIter states that the court seised of an application for return ‘may, at any stage of the proceedings, examine whether contacts between the child and [the applicant for return] should be organised, taking into account the best interests of the child’. The provision is interesting in that it proposes for the first time to take into account, at the very heart of a prompt return proceedings, the particular situation resulting from the wrongful removal of the child, namely its separation from the parent requesting the return. The provision should be combined with those seeking to ensure that the prompt return proceedings is as rapid as possible. It should not be forgotten that once the child has been removed, it may take several weeks or even several months before a final decision is given. Although Art. 24 Brussels IIter seeks to address precisely this major inconvenience by imposing maximum time limits of six weeks on both first and higher courts, these time limits may be extended in practice, even if this should remain3 exceptional. The text thus gives the courts seised of the return of the child the opportunity to compensate for the discomfort of the situation by making it possible, ‘at any stage of the proceedings’, to ascertain whether contacts between the child and the parent from whom he has been separated are necessary, taking into account his or her best interests.

7

The text is relatively non-binding, since the authority seised is under no obligation. It “may” consider whether contacts “should” be organised. It can be regretted that the Regulation did not use a more mandatory formula requiring the authorities seised of a return request to establish a contact between the child and the parent requesting the return.4 The solution would have been more consistent with 2 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, now replaced by Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (Recast). 3 See supra Art. 24 notes 1 et seq. (Gallant). 4 To that effect, ECHR, 22 June 2006, Bianchi v Switzerland, Dr. Family 2008, Study 14, with note Gouttenoire, which guarantees the exercise of rights of access during the return proceedings.

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the overall mechanism: After wrongful removal, not only must the return of the child to his or her country of origin be organised immediately, but contact should be maintained between the child and the parent seeking return during the course of the proceedings. However, in the context of that dialectic, provision should have been made for the possibility of not doing so, in particular in cases where the applicant parent has represented a danger to the child. Finally, it should be noted that the text of Art. 27(2) Brussels IIter is slightly ambiguous. Although it 8 gives the authority seised the opportunity to examine whether contacts ‘should be organised’, it does not seem to confer on it the power to take appropriate measures. However, and most appropriately, it can be considered that the statement is contradicted by the reference to Art. 15 of the Regulation, which concerns the competence of the authorities in respect of provisional and protective measures. Thus, if the authority has the power to examine whether contacts between the child and the parent requesting return should be organised, it goes without saying that, depending on the answer given to that examination, it may, on the basis of Art. 15 of the Regulation, organise the setting up of those contacts itself during the period of the return procedure. However, the conditions of Art. 15 Brussels IIter will have to be respected, in particular as regards urgency and information to the authorities of the child’s State of origin.5

IV. Paragraph (3) As noted above,6 the mechanism for the prompt return of the child as provided for by the 1980 Ha- 9 gue Convention provides for a number of exceptions to return, including that in Art. 13(1) (b). That text states that return may be refused if the return defendant establishes that ‘there is a serious risk that the return of the child may expose him or her to physical or psychological danger, or in any other way places him in an intolerable situation’.7 It is thus for the parent who objects to the prompt return of the child to adduce evidence of such a danger or of the intolerability of the situation.8 Systematically used to oppose the return of the child, this provision has the disadvantage of introducing into the mechanism for prompt return consideration by the judicial or administrative authority of the substance of the case. However, its existence is justified by the desire to counteract the automatic return, which could be highly detrimental to the child in certain extreme situations. The assessment of what constitutes a serious risk of danger to the child or of an intolerable situation then becomes the cornerstone of the exception to return and ultimately of the whole mechanism. An overly broad interpretation would deprive the mechanism of prompt return of its effectiveness and, consequently, cover a posteriori the wrongful removal which the Convention is intended to combat. An overly strict interpretation, on the contrary, would lead to an “overly demanding conception of the automatic nature sought by the conventional mechanism”.9 The balance on which the Convention is based is therefore difficult to maintain and the role of national courts to be delicate. Art. 27(3) of the new Regulation reproduces, amending and clarifying Art. 11(4) of the Brussels IIbis 10 Regulation. It is clearly part of an approach aimed at limiting the possibilities of refusing the return of the child and must be supplemented by paragraphs (4) and (5) of the same Article.10 The new Regulation thus provides that where the authorities seized consider refusing to return the child on the basis of a serious risk of danger, the return will not be refused if adequate arrangements have been made to ensure the protection of the child after his or her return. The major contribution of the new regulation compared to the previous version lies in the evidential aspects of these protective measures. Indeed, where the old text was limited to a rather vague wording indicating that return would not be

5 6 7 8 9

See supra Art. 15 notes 1 et seq. (Pertegás Sender). See supra Art. 27 note 1 (Gallant). Pérez-Vera, Explanatory Report, Nos 29 and 116. See, for example, Cass. 1ere civ., 25 September 2013, No 12-25.864. Muir Watt, note under Cass. Cass. 1re civ., 15 June et 12 July 1994: Rev. crit. DIP 1995, p. 96, spec. p. 102. See Godechot-Patris/Lequette, Rép. intern. Dalloz, v° Mineur, n° 254. 10 Of which see infra Art. 27 notes 15 et seq. (Gallant).

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Art. 27 Brussels IIter Procedure for the return of a child refused “if it [were] established” that adequate measures had been taken, the new text clearly reinforces the possibility for the judge to ensure that such measures have been taken.11 11

Art. 27(3) Brussels IIter places the burden of proof on the applicant for return by requiring him to guarantee to the court that adequate arrangements have been made to ensure the protection of the child after his or her return “by providing sufficient evidence”. If the court seised considers that the return should not be ordered due to the existence of a serious risk of danger to the child, then the applicant for return should be given the opportunity to establish and convince the authority that the protection measures have been taken. The system seems rather balanced as it allows the applicant to show that the child is not at risk. Recital (45) sets out various examples of what these appropriate measures could be: A decision prohibiting the return applicant from approaching the child, a provisional measure allowing the abducting parent to remain with the child until a decision on the substance is issued after the return, or proof that medical equipment necessary for the treatment of the sick child is available in the child’s State of origin.

12

The court which would have considered refusing return on the basis of a serious risk of danger to the child must refuse return, as we have just seen if the applicant for return provides him with sufficient evidence, but also if the court “is otherwise satisfied” that adequate arrangements have been made to ensure the protection of the child in the event of return. The provision allows for some flexibility, stating that in any event the court seised of an application for return should not refuse it if it is ensured by all means that the protection of the child will be ensured. This is the case if the applicant for return is himself at the origin of the danger to which the child would be exposed in the event of his return: In this case, proof of effective protection of the child will obviously have to be found outside the parent seeking return.

13

In any event, it will be for the authority seised to assess the evidence provided to it, by the applicant or by any other means and on the basis of the actual risk of danger.12 It will order return only if it is convinced that there is no danger.

14

The new text thus divides the roles between the court seised and the applicant for return. While it is in principle for the latter to provide the evidence necessary to satisfy itself that the protection measures have been taken in the State of origin, in order to ensure the safe return of the child to his or her State of origin, the authority seised may be satisfied in any other way, including by itself playing an active role in the tracing of the elements. As such, the provisions of Art. 27(4) Brussels IIter may be useful.

V. Paragraph (4) 15

Evidence that adequate protection measures have been taken in the child’s country of origin can also be sought through cooperation between authorities, which offers wide possibilities. Thus, Recital (45) states that the authorities which have received a return request may “request the assistance of Central Authorities or network judges, in particular within the European Judicial Network in civil and commercial matters, as established by Council Decision 2001/470/EC (8), and the International Hague Network of Judges”.

16

Art. 27(4) Brussels IIter thus supplements Art. 27(3), since the court which intends to refuse return on the existence of a serious risk of danger, but which might think that adequate protective measures have been taken, ‘may communicate with the competent authorities of the Member State where the child was usually resident immediately before the wrongful removal or retention, either directly in accordance with Art. 86 or with the assistance of Central Authorities’. Cooperation between the authorities is clearly encouraged and organised here, since the authorities receiving an application for return can contact the authorities of the child’s State of origin “For the purposes of paragraph 3 of this Article”, i.e. whether or not adequate protection measures have been taken in the State of origin.

11 See also Recitals (44), (45) and (46). 12 See Recital (45).

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Communication between the authorities may take place either directly or through the Central Autho- 17 rities. As regards direct communication between the authorities, the Regulation refers to the provisions of Art. 86 Brussels IIter, which lays down a principle of direct communication between the authorities of the Member States, subject to respect for the procedural rights of the parties and the confidentiality of information. Such a possibility of direct communication between the authorities of the Member States was not provided for in the Brussels IIbis Regulation, and can thus be seen as a significant step forward in the field of cooperation between authorities. Cooperation through the Central Authorities is less innovative, as it already featured prominently in the Brussels IIbis Regulation.13

VI. Point (5) Going beyond the objectives of Arts. 27(3) and 27(4), Art. 27(5) Brussels IIter confers jurisdiction on 18 the authorities seised of an application for return to take provisional, including protective, measures to ensure the protection of the child in the event of his or her return to his or her State of origin. The basis used is, unsurprisingly, that of Art. 15 of the Regulation.14 It will be recalled that the text allows authorities which have no substantive competence to take provisional measures in urgent cases where they are the authorities of the State in which the child or property belonging to it are present.

19

The measures in question must be capable of putting an end to the danger to which the child would be exposed in the event of return. Recital (46) gives some examples of the interim measures that could be taken on the basis of Art. 15 in the context of Art. 27 Brussels IIter: This may be, for example, a measure ordering the child to reside with the abducting parent, the time of the return procedure.

20

In any event, the taking of measures must not unduly delay the return procedure. This is the delicate balance which underlies the entire structure of the 1980 Hague Convention and, indirectly, that of the Brussels II b Regulation. First, the debate on the existence of a possible danger in the event of return must not reintroduce a debate on the substance of parental authority, which falls within the jurisdiction of the authorities of the child’s State of origin.15 On the other hand, the prompt return procedure must remain as rapid as possible and the introduction of substantive considerations into the procedure risks unnecessarily prolonging it.16 Finally, it can be seen that these various arbitrations are based on the court hearing the application for return.

21

Such measures taken on the basis of Art. 15 Brussels IIter and intended to protect the child from a serious risk of danger in the event of return and pending the adoption of substantive measures after return must be moved within the Union pursuant to Arts. 30 et seq. of the Brussels IIter Regulation. they are now included in the judgments given under the Regulation and defined in Art. 2(1)(b). The solution is all the more interesting since it runs counter to the previous regulation,17 which did not include in the “decisions”, interim decisions taken on the basis of Art. 20 of the Brussels IIbis Regulation. Moreover, the solution also runs counter to the case-law of the Court of Justice which, in its Purrucker decision of 15 July 2010, refused to grant interim measures adopted on the basis of Art. 20 of the Brussels IIbis Regulation to the rules governing the recognition and enforcement of Arts. 21 et seq. of the Brussels IIbis Regulation.18

22

13 14 15 16 17

Art. 53 et seq. Brussels IIbis. See supra No 8. See Recital (46). On the expediency of the procedure, see supra Art. 24 (Gallant). Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du (ter)rain, Rev. crit. DIP 2020, 215, spec. n°20. 18 CJEU, 15 July 2010, Purrucker, Case C-256/09), ECLI:EU:C:2010:437, Europe 2010, no 350, with note Idot; Procédures 2010, no 343, with note Nourissat; AJ fam. 2010, 539, with note Boiché; D. 2011, 374, with note Jault-Seseke; RTD civ. 2011. 115, with note Hauser.

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Art. 27 Brussels IIter Procedure for the return of a child 23

The circulation regime is thus that of ‘ordinary’ decisions given in matters of parental responsibility, as opposed to the rules governing certain “privileged decisions” in Art. 42 et seq. of the Regulation. In particular, the certificate to be issued by the court which ordered the provisional measure shall be issued in accordance with Art. 36 and Annex (IV) of the Regulation. The certificate shall state precisely that the measure is taken in accordance with Art. 27(5) Brussels IIter on the basis of Art. 15 Brussels IIter. The judgment will be immediately enforceable in the Member State of origin of the child, dependent on those parties who wish to object to it to lodge an application for refusal or suspension of enforcement on one of the grounds for non-recognition listed in the text.19

VII. Point (6) 24

Art. 27(6) Brussels IIter introduces a provision which did not exist in the context of the Brussels IIbis Regulation. This is a very important provision, which lays down the principle of the possibility of provisional enforcement of judgments ordering the return of the child, including in the presence of a remedy by the wrongful removal person.20 It complements the provisions of the Brussels IIter Regulation which strengthen the speed of the procedure for the return of the child and which are set out in Art. 24, all with the aim of establishing a rapid and efficient procedure.

25

However, provisional enforcement of the decision ordering the return of the child is not automatic. It is left to the discretion of the courts seised of an application for return, which will nevertheless have to justify, in order to resort to provisional enforcement, that it is in the interests of the child to return to his or her country of origin before the decision on the appeal is given. It might have been more effective to reverse the principle and the exception and to impose the provisional enforcement of prompt return orders, except in cases where precisely there may be a reason to oppose it in the interests of the child. Such a solution would have been more consistent with the whole mechanism laid down by the Hague Convention and would undoubtedly have made the procedure more efficient.21 The prompt return once ordered by the court of the State in which enforcement is sought would not therefore be delayed by the initiation of a legal remedy and could thus meet the requirements of expediency inherent in the immediate surrender procedure. On the other hand, that solution would certainly have been affected by many of the laws of the Member States which not only hesitate to authorise provisional enforcement, but where, in any event, such provisional enforcement is not legal and is therefore subject to a specific assessment of the situation by the court.22

26

Art. 27(6) Brussels IIter, however, leaves aside the question of the provisional enforcement of return orders issued on the basis of Art. 29(6) Brussels IIter, i.e. return orders issued by the authorities of the child’s State of origin in the context of a decision on the substance of the rights and where the authorities of the State of refuge have already taken a decision and refused return.23 Such provisional enforcement was expressly provided for in Art. 11(6) of the Brussels IIter Regulation, but is no longer provided for.

19 See infra Art. 30 et seq. (de Lima Pinheiro). 20 See Recital (47). 21 See our observations to that effect on the organisation of a contact between the child removed and the parent requesting return, supra Art. 27 note 7 (Gallant). 22 See to that effect, the case-law of the French Supreme Court, for which return decisions do not benefit from automatic provisional enforcement, unlike decisions on the substance of parental authority: Cass. 1re Civ., 20 janv. 2010, n° 08-19.267, AJ fam. 2010, n° 4, p. 181, with note Boiché; D. 2010, p. 522, with note Auroy/Breton; JCP G 2010, p. 381, with note Devers; Procédures 2010, comm. 77, with note Douchy-Oudot; RJPF avr. 2010, p. 22, with note Eudier: Les décisions de retour ne bénéficient pas de l’exécution provisoire de plein droit. 23 See infra Art. 29 notes 1 et seq. (Gallant).

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Article 28 Enforcement of decisions ordering the return of a child 1. An authority competent for enforcement to which an application for the enforcement of a decision ordering the return of a child to another Member State is made shall act expeditiously in processing the application. 2. Where a decision as referred to in paragraph 1 has not been enforced within six weeks of the date when the enforcement proceedings were initiated, the party seeking enforcement or the Central Authority of the Member State of enforcement shall have the right to request a statement of the reasons for the delay from the authority competent for enforcement. Art. 28 Brussels IIter constitutes a new provision specific to the enforcement of decisions ordering the return of the child to another Member State. In the context of the Brussels IIbis Regulation, litigation on the enforcement of return orders has been quite extensive and has given rise to several decisions of the Court of Justice,1 in particular in the context of the “notwithstanding” return procedure based on Art. 11(8) of the Brussels IIbis Regulation, which allowed the authorities of the child’s State of origin to order the prompt return of the child despite the refusal to return by the authorities of the State to which the child had been removed.2

1

Art. 28 of the Brussels IIter Regulation expressly refers to orders for return “to another Member State”: it therefore concerns only ordinary decisions for prompt return, and not those that could be issued under Art. 29(6) Brussels IIter by the authorities of the child’s State of origin.3 The enforcement of the ordinary decision of return is requested from the authorities of the State whose courts have in principle ordered the return.

2

In the Brussels IIter Regulation system, the circulation of decisions on parental responsibility is governed by two separate regimes, one for ordinary decisions,4 and one for privileged decisions.5

3

The privileged decisions, referred to in Art. 42 of the Regulation, concern either access rights or the return of the child, pronounced during proceedings on the substance of the rights of custody by the authorities of the State of origin in the event that return has been previously refused by the authorities of the State where the child has been wrongfully removed.6

4

Other decisions on parental responsibility, including return orders other than those made on the ba- 5 sis of Art. 29(6) Brussels IIter, therefore fall into the category of decisions that can be described as “ordinary”,7 as opposed to “privileged decisions”. The circulation of ordinary decisions within the European Union, governed by Art. 30 et seq. of the Brussels IIter Regulation, is characterised by the abolition of the exequatur procedure (Art. 34) and by a small number of grounds for refusal of recognition (Art. 39 Brussels IIter). In order to circulate, return orders must be certified by the issuing judge (Art. 36 Brussels IIter and certificate in Annex III) and accompanied by a number of documents. If the return of the child is accompanied by provisional measures taken on the basis of Art. 27(5) Brussels IIter, the certificate is that of Annex IV. The actual enforcement will be carried out in accordance with the procedures of national law, in the same way as any national decision.8

1 See CJEU, 11 July 2008, Rinau, (Case C-195/08 PPU), ECLI:EU:C:2008:406; Rev. crit. DIP 2008, 871, with note Muir Watt; D. 2009, 1564, with note Courbe/Jault-Seseke; JCP 2008, II. 10207, with note Devers; CJEU, 1er July. 2010, Povse, (Case C-211/10 PPU), ECLI:EU:C:2010:400; JCP 2010, II. 956, with note Devers; CJEU, 22 déc. 2010, Aguirre Zarraga, (Case C-491/10 PPU), ECLI:EU:C:2010:828; Rev. crit. DIP 2012, 172, with note Muir Watt; D. 2011, 1374, with note Jault-Seseke. 2 See infra Art. 29 notes 16 et seq. (Gallant). 3 See infra Art. 29 notes 16 et seq. (Gallant). 4 Arts. 30 et seq. Brussels IIter. 5 Arts. 42 et seq. Brussels IIter. 6 About this proceedings, see infra Art. 29 notes 16 et seq. (Gallant). 7 Although the term is not used by the Brussels IIter Regulation. 8 On the whole regime, see Art. 30 et seq. (de Lima Pinheiro).

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Art. 29 Brussels IIter Procedure following a refusal to return the child 6

Art. 28 Brussels IIter extends, at the stage of enforcement of return orders, the wish already expressed in relation to the prompt return procedure by Arts. 23 and 24 of the Brussels IIter Regulation, to adopt a speedy procedure. To this end, it states, on the one hand, that the processing of the application for enforcement of the return order should be expeditious and, on the other hand, that if the order has not been enforced within the period of six weeks after the date of the opening of the enforcement proceedings, it is possible for the parties or the Central Authority of the “enforcing Member State” to ask the competent enforcement authority for the reasons for the delay.

Article 29 Procedure following a refusal to return the child under point (b) of Article 13(1) and Article 13(2) of the 1980 Hague Convention 1. This Article shall apply where a decision refusing the return of a child to another Member State is based solely on point (b) of Article 13(1), or on Article 13(2), of the 1980 Hague Convention. 2. The court giving a decision as referred to in paragraph 1 shall, of its own motion, issue a certificate using the form set out in Annex I. The certificate shall be completed and issued in the language of the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by a party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields. 3. If, at the time the court gives a decision as referred to in paragraph 1, a court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has already been seised of proceedings to examine the substance of rights of custody, the court, if it is aware of these proceedings, shall, within one month of the date of the decision referred to in paragraph 1, transmit to the court of that Member State, either directly or through the Central Authorities the following documents: (a) a copy of its decision as referred to in paragraph 1; (b) the certificate issued pursuant to paragraph 2; and (c) where applicable, a transcript, summary or minutes of the hearings before the court and any other documents it considers relevant. 4. The court in the Member State where the child was habitually resident immediately before the wrongful removal or retention may, where necessary, require a party to provide a translation or transliteration, in accordance with Article 91, of the decision as referred to in paragraph 1 and any other document attached to the certificate in accordance with point (c) of paragraph 3 of this Article. 5. If, in cases other than those referred to in paragraph 3, within three months of the notification of a decision as referred to in paragraph 1, one of the parties seises a court in the Member State where the child was habitually resident immediately before the wrongful removal or retention in order for the court to examine the substance of rights of custody, the following documents shall be submitted to the court by that party: (a) a copy of the decision as referred to in paragraph 1; (b) the certificate issued pursuant to paragraph 2; and (c) where applicable, a transcript, summary or minutes of the hearings before the court which refused the return of the child. 6. Notwithstanding a decision on non-return as referred to in paragraph 1, any decision on the substance of rights of custody resulting from proceedings referred to in paragraphs 3 and 5 which entails the return of the child shall be enforceable in another Member State in accordance with Chapter IV. 332

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Chapter III: International Child Abduction I. General Remarks . . . . . . . . . . . . . . . . . II. The scope of the “last word” procedure . . .

1 4

III. Cooperation of authorities . . . . . . . . . . .

9

Art. 29 Brussels IIter

IV. The “notwithstanding” return mechanism . 16 1. The “notwithstanding” return order . . . . . . 19 2. Effectiveness of preferred decisions . . . . . . . 26

I. General Remarks Art. 29 of the Brussels IIter Regulation is an equivalent to Art. 11(8) of the Brussels IIbis Regulation. It is more developed than the latter, has six paragraphs and makes numerous clarifications, but also changes to the mechanism of the previous Regulation.

1

Overall, the mechanism introduced by the two Regulations in Arts. 11(8) (Brussels IIbis) and 29 2 (Brussels IIter) constitutes a genuine addition to the system of the 1980 Hague Convention. The latter allows the authorities of the State of refuge of the child to exceptionally refuse to return the child to his or her State of origin, in the cases provided for in Arts. 12 and 13 of the Convention. Among these exceptions to return is the famous Art. 13(1)(b), which allows the refusal to return the child because of a serious risk of danger to the child. This text is systematically invoked by respondents to return proceedings and also is the basis most often used by courts to refuse to order the prompt return of the child to the country in which he or she was habitually resident immediately before the wrongful removal. The two Brussels II Regulations add a further layer to this mechanism by allowing the authorities of origin to counteract the refusal to return the child by the authorities of the State of refuge by ordering the return themselves. Described as the “return notwithstanding”1 or “last word” procedure,2 this procedure leads to decisions that will circulate immediately within the European Union, through a rapid and simplified enforcement regime, sometimes referred to as the “fast track” procedure.3 In particular, this procedure has given rise to significant litigation within the Member States and before the Court of Justice, centred on the question of the enforcement of the return ordered by the authorities of the State of origin when the authorities of the State of refuge of the child had previously refused such a return.4 Taking note of these difficulties,5 the new Regulation has chosen both to modify the mechanics of this last word procedure and to organise it in greater detail. In order to make the reading of this commentary clearer, we have chosen to present the new text thematically and to integrate the changes made by the new Regulation in relation to the system of the Brussels IIbis Regulation in the course of the comments. 1 Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis, Rev. crit. DIP 2005. p. 569, spec. p. 600. 2 Gallant, Responsabilité parentale et protection des enfants en droit international privé, Defrénois 2004 (Préf. Lagarde), spéc. n°500. 3 McEleavy, The new child abduction regime in the European Union: Symbiotic Relationship or Forced Partnership?, JPrIL, vol. 1, April 2005, p. 5, at 25 et seq. Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions – Le règlement Bruxelles IIbis, Rev. crit. DIP 2005, p. 569, spec. p. 600. 4 V. not. CJCE, 11 juill. 2008, Rinau, (Case C-195/08 PPU), ECLI:EU:C:2008:406; Rev. crit. DIP 2008, 871, with note Muir Watt; D. 2009, 1564, with note Courbe/Jault-Seseke; JCP 2008, II. 10207, with note Devers; CJUE, 1er juill. 2010, Povse, (Case C-211/10 PPU), ECLI:EU:C:2010:400; JCP 2010, II. 956, with note Devers; CJUE, 22 déc. 2010, Aguirre Zarraga, (Case C-491/10 PPU), ECLI:EU:C:2010:828; Rev. crit. DIP 2012, 172, with note Muir Watt; D. 2011, 1374, with note Jault-Seseke. Adde Lenaerts, The best Interests of the Child always come first: the Brussels IIbis Regulation and the European Court of Justice, Jurisprudencija/Jurisprudence (online), Court of Justice of the European Union, Luxembourg 2013, Volume 20, issue 4, p. 1302–1328; Beaumont/ Walker/Holliday, Conflicts of EU Courts on Child Abduction: the Reality of Article 11(6)-(8) Brussels IIa Proceedings across the EU, in Journal of Private International Law (2016) p. 211; Pailler, La portée de l’obligation de reconnaître une décision relative à la garde d’un enfant émanant de la juridiction de l’État membre dans lequel l’enfant a été déplacé en application du réglement n° 2201/2003 “Bruxelles IIbis”, Journal du droit international 2016 n°2, p. 593. 5 Commission staff working document impact assessment Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast), SWD/2016/0207 final – 2016/ 0190 (CNS).

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Art. 29 Brussels IIter Procedure following a refusal to return the child

II. The scope of the “last word” procedure 4

From the title of Art. 29 Brussels IIter, and as recalled by Art. 29(1) of the same Regulation, it may be noted that the procedure concerns only certain refusals of return and not all refusals of return permitted by the 1980 Hague Convention. The latter provides for several cases of refusal of return in its Arts. 12 and 13.6 The last word procedure introduced by the Brussels IIter Regulation concerns only refusals of return by the authorities of the State of refuge on two grounds: that of Art. 13(1)(b) and that of Art. 13(2) of the 1980 Hague Convention.

5

Art. 13(1) b) 1980 Hague Convention refers to the possibility for the authorities of the State where the child has been wrongful removed, to refuse the prompt return when “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”.

6

Art. 13(2) 1980 Hague Convention concerns the possibility to refuse the return “ 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.

7

The scope of the procedure of the last word is thus reduced by the Brussels IIter Regulation to these two cases, whereas the Brussels IIbis Regulation envisaged the procedure more broadly. It covered all refusals of return based on Art. 13 1980 Hague Convention, which also included the possibility of refusing return in case of lack of effective exercise of custody rights by the applicant for return or acquiescence to the latter under Art. 13(1)(a).

8

This reduction in the scope of the last word procedure can be explained by the desire to confine it to the most problematic and contentious cases of refusal of return, both in quantitative and qualitative terms. Despite recurrent litigation concerning the enforcement of decisions made under this procedure, the new Regulation has sought to maintain it and even to strengthen its effectiveness, as we shall see later. By reducing its scope, it excludes cases where the refusal to return is based on the acquiescence of the other parent or on custody rights that are not effectively exercised. However, on the one hand, these justifications for non-return are hardly used in practice, as the litigation of exceptions to return is essentially crystallised around the existence of a danger for the child in case of return. On the other hand, it may be assumed that in the context of a refusal of return justified by acquiescence to the removal, the legitimacy of the intervention a posteriori of the authorities of the child’s State of origin to pronounce a “notwithstanding” return would be diminished or even non-existent. The reduction of the scope of the last word procedure is therefore perfectly justified, in a context where it has been sought to strengthen its effectiveness and legitimacy. The latter will also be strengthened by the reform of the mechanism introduced by the new Regulation, as we shall see later.7

III. Cooperation of authorities 9

Arts. 29(2), 29(3), 29(4) and 29(5) of the Brussels IIter Regulation contain provisions that encourage the courts of the Member States to cooperate with each other. They are equivalent to Arts. 11(6) and 11(7) of the Brussels IIbis Regulation, but with some novelties and clarifications.

10

One of the characteristics of child abduction litigation is the coexistence of several proceedings in the Member States concerned by the wrongful removal. The proceedings, which are often intertwined, concern both the prompt return of the child and the substance of rights of custody. The Brussels IIter Regulation, while seeking to strengthen the mechanism for the prompt return of the child, attempts to remedy the difficulties arising from these cross proceedings-(return/substance of the rights of custody).

11

In any case, once the authorities of the State where the child is located issue a decision refusing return within the meaning of Art. 29(1),8 Art. 29(2) of the Brussels IIter Regulation provides that they shall 6 On all these exceptions in the framework of the 1980 Hague Convention, see Perez-Vera, Explanatory Report, n°27 et seq., n°113 et seq. 7 See infra Art. 29 notes 16 et seq. (Gallant).

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issue a certificate using the form in Annex I. This certificate is issued ex officio by the courts, even if neither party requests it. It is issued in the language of the decision and is in principle not translated, but it may also be issued, at the request of a party, in another official language of the EU institutions. Under Recital (49), “the purpose of this certificate is to inform the parties of the possibility to seise a court in the Member State where the child was habitually resident immediately before the wrongful removal or retention, within three months of the notification of the decision refusing the return of the child, with applications regarding the substance of rights of custody, or, if that court is already seised, to communicate to the court relevant documents relating to the return proceedings”. Once issued, this certificate will then be transmitted to the courts of the child’s State of origin, together with a copy of the refusal decision and, where appropriate, a record, summary or minutes of the hearings (Arts. 29(3) and (5)). However, this transmission will not be organised in the same way, depending on whether or not the courts of the Member State of origin were seized before the decision to refuse return was taken.

12

In the first case provided for in Art. 29(3) Brussels IIter, where the decision refusing return was issued 13 after the courts of the child’s State of origin had already been seized, the transmission of the certified refusal of return order should be made by the court itself, provided that it is aware of these proceedings on the substance of the rights before the courts of the State of origin. The transmission of the decision and the necessary documents should be made within one month from the date of the decision refusing return, either directly to the court in the Member State of origin or through the Central Authority. As regards the documents to be transmitted, the text provides that the court that issued the decision refusing return must transmit to the trial court not only the copy of the decision, the Annex I certificate, but also, where appropriate, a report or summary of the hearings, as well as any document it considers relevant. According to recital (50), “The term ‘any other documents it considers relevant’ should refer to any documents which contain information that might have a bearing on the outcome of those custody proceedings, if such information is not already contained in the decision refusing return”. It is also foreseen that the court of the child’s State of origin may request one of the parties to provide a translation or transliteration of the decision refusing return, as well as the accompanying documents.9 According to Art. 29(5) Brussels IIter, if no proceedings on the substance of the rights of custody ex- 14 isted at the time the decision refusing return was made, the party who so wishes has three months from the notification of the decision refusing return to apply to the courts of the child’s State of origin for a decision on the substance of the rights of custody, possibly entailing return. In this case, the transmission of the decision on non-return and the accompanying documents is no longer the responsibility of the court that issued the order, but of the party who subsequently applies for a decision on the substance of the rights of custody. With regard to the documents accompanying the order, Recital (51) states that “this does not preclude the court seised from asking for any additional documents it considers relevant, which contain information that might have a bearing on the outcome of the proceedings on the substance of rights of custody, if such information is not already contained in the decision refusing return”. The possibility for the authorities seized of the substance of the rights of custody to request a translation of the refusal decision and the accompanying documents is not renewed in this case, which is surprising: placed between paragraphs 3 and 5, this option seems to concern only the case of a decision on non-return made after the authorities of the child’s State of origin have already been seized of the substance of the rights of custody. In any event, the purpose of all these provisions is to facilitate co-operation between the courts seized of the prompt return of the child and those seized of the substance of rights of custody. Such co-operation is absolutely necessary in this very specific area of child abduction, where the borderline between the prompt return of the child and the substance of the rights is particularly blurred and where, in any event, decisions must be taken in the light of the best interests of the child.

8 Brevitatis causa, we will refer to “Decisions refusing return” as determined by Art. 29(1) Brussels IIter, based on Art. 13(1)(b) or 13(2) of the 1980 Hague Convention. 9 Art. 29(4) Brussels IIter.

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15

Art. 29 Brussels IIter Procedure following a refusal to return the child

IV. The “notwithstanding” return mechanism 16

Art. 29(6) of the Brussels IIter Regulation is equivalent to Art. 11(8) of the Brussels IIbis Regulation, but it is not an exact reproduction of it. It makes changes to it which are more substantial than apparent.

17

The overall structure of the new Regulation is identical to that of the Brussels IIbis Regulation, with two main elements. First, the authorities of the child’s State of origin may order the return of the child despite the fact that the authorities of the State where the child is located have refused to return the child on the basis of one of the exceptions to return provided for in the 1980 Hague Convention.10 In a second step, these return orders made by the authorities of the child’s State of origin are subject to an immediate enforcement mechanism.

18

Despite this structural similarity, the new text differs substantially from its predecessor, both as regards the return order itself and as regards its effectiveness. 1. The “notwithstanding” return order

19

Art. 29(6) Brussels IIter specifically states that the “notwithstanding” return order is not only the order issued by the courts of the child’s State of origin ordering the return of the child, but above all the order issued on the substance of the rights of custody and which entails the return of the child. This clarification was not included in the former Regulation and could therefore suggest that the courts of the child’s State of origin could, in any event, decide on the return of the child without necessarily having first decided on the substance of the rights.11 By emphasising that the authorities of the child’s State of origin may order the return of the child “notwithstanding” when they have ruled on the substance of the rights, the text allows for a better definition and emphasis of the role of the different authorities in the field of wrongful removal of children.

20

It is in fact common ground that the authorities of the State to which the child has been wrongfully removed are only competent for the immediate return of the child, both under the 1980 Hague Convention12 and the Brussels IIbis13/Brussels IIter14 Regulations. As a corollary, only the authorities of the habitual residence immediately before the wrongful removal of the child (the authorities of the State of origin) have jurisdiction to decide on the substance of the rights of custody,15 at least as long as the return dispute is not settled. Jurisdiction on the substance of the rights of custody may only be transferred to the authorities of the State to which the child has been wrongfully removed in the cases, exhaustively listed in Art. 10 of the Brussels IIbis Regulation and Art. 9 of the Brussels IIter Regulation, where the removal of the child ceases to be wrongful and the child may be considered to have acquired habitual residence in the State to which he or she was wrongfully removed.

21

In this respect, the new Art. 9 of the Brussels IIter Regulation ensures consistency between the provisions on the substantive jurisdiction of the authorities of the State of origin and the authorities of the new habitual residence once the wrongfulness of the removal has ceased. The transfer of jurisdiction will take place on condition that the child has acquired a habitual residence in the State to which he or she has been removed and, among other conditions, that no court of the State of origin has been seized under Arts. 29(3) and 29(5) Brussels IIter. This means that once a court has refused return in accordance with Art. 29(1) of the Brussels IIter Regulation, parties who seize the courts of the child’s State of origin to decide on the substance of the rights thus block any possibility of a transfer of jurisdiction on the substance of the rights to the authorities of the State to which the child has been re-

10 Exceptions of Arts. 12 and 13 of the 1980 Hague Convention, within of the Brussels IIbis Regulation, and the only Arts. 13(1)(b) and 13(2) in the framework of the Brussels IIter Regulation, see supra, n°4 et seq. 11 See CJEU 1er July 2010, Povse, (Case C-211/10 PPU), ECLI:EU:C:2010:400, para. 53; CJUE 9 January 2015, Bradbrooke, (Case C-498/14 PPU), ECLI:EU:C:2015:3, para. 47, RJPF March 2015, p. 37, with note GodechotPatris; Europe, March 2015, p. 38, with note Idot; Procédures, March 2015, p. 24, with note Nourissat. 12 Arts. 8 to 11 1980 Hague Convention. 13 Art. 11 Brussels IIbis. 14 Art. 22 Brussels IIter. 15 Arts. 8 and 10 Brussels IIbis/Arts. 7 and 9 Brussels IIter.

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moved. They are thus likely to have an incentive to seize to the courts of the State of origin to decide on the substance of the rights of custody.16 The solution is consistent with the whole text of Art. 9 Brussels IIter, which aims at transferring jurisdiction on the substance of the rights to the authorities of the new habitual residence only in the event that the return dispute has been resolved, one way or the other, and that the wrongfulness of the removal has thus completely disappeared.17

22

The difficulty usually arises from the fact that the parties bring the substantive and return proceed- 23 ings simultaneously before the courts of the Member States18 and that the decisions, which are often incompatible, intervene and overlap. If the spirit of the 1980 Hague Convention’s immediate return mechanism requires that the substance of the rights be excluded, it is because the immediacy of the processing of the application and the return of the child must be given priority. However, in the event of recourse to Art. 13(1)(b) of the 1980 Hague Convention, the substance of the rights are necessarily reintroduced into the mechanism, since it is a question of refusing return in the event of a serious risk of danger to the child if returned. In such a context, where decisions on the substance of the rights of custody are given or requested, and where a refusal of return has been pronounced, either on the basis of danger or on the basis of the child’s opposition, it therefore seems more relevant to decide the discussion on the substance of the custody rights, which will necessarily lead to a solution on the ground of return or non-return. Finally, in cases where return litigation is bypassed by proceedings on the substance of the rights of custody, where it becomes so complex that the proceedings stall and time passes, then it is time to leave the basis of immediate return and allow a decision on the substance of the rights which entails the return of the child to have the final say. The new Brussels IIter Regulation is therefore an important novelty which gives legitimacy to the me- 24 chanism of “notwithstanding return” which could be contested until now.19 It is no longer a question of simply countering a decision to refuse return with a return order. It is a matter of giving priority to litigation on the substance of the rights of custody over litigation on return, in cases where return is the consequence of the decision taken on the substance of the rights. This justification makes the intervention of the authorities of the State of origin more acceptable, as they do not decide on the immediate return as such within the framework of the return mechanism, but on the substance of the rights of custody, with a thorough examination of the child’s situation.20 The decision thus taken on the substance of the rights will or will not entail the return of the child, which is then the consequence of the decision on the substance of the rights, and no longer the consequence of the cessation of an abuse. The tasks between the authorities of the different States concerned are therefore clearly delineated: the 25 authorities of the State to which the child has been wrongfully removed must decide on his or her immediate return, without deciding on the substance of the custody rights, with the task of restoring the status quo ante; whereas the authorities of origin, naturally competent to decide on the substance of the rights, have the task of determining with which parent the child should reside, the return being only the consequence of such a decision. Art. 29(6) Brussels IIter thus clearly underlines this shift from return litigation, entrusted to the authorities of the State where the child has been removed and characterised by the objective of restoring the status quo ante as soon as possible, to litigation on the sub-

16 Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du (ter)rain, Rev. crit. DIP 2020, 215, spec. n°16. 17 See supra Art. 9 notes 1 et seq. (Garber). 18 CJEU, 11 July. 2008, Rinau, (Case C-195/08 PPU), ECLI:EU:C:2008:406; Rev. crit. DIP 2008, 871, with note Muir Watt; D. 2009, 1564, with note Courbe/Jault-Seseke; JCP 2008, II. 10207, with note Devers; CJEU, 23 December 2009, Deticek, (Case C-403/09 PPU), ECLI:EU:C:2009:810; AJ fam. 2010, 131, with note Boiché; D. 2010, 1585, with note Courbe/Jault-Seseke; CJEU, 1er July. 2010, Povse, (Case C-211/10, PPU), ECLI:EU:C: 2010:400; JCP 2010, II. 956, with note Devers; CJEU, 22 December 2010, Aguirre Zarraga, (Case C-491/10 PPU), ECLI:EU:C:2010:828; Rev. crit. DIP 2012, 172, with note Muir Watt; D. 2011, 1374, with note Jault-Seseke. 19 See Mailhé, “Bruxelles II, troisième génération”, JCP éd. G, 2019, 1109 (n°44–45, 28 October 2019, p. 1935), spec. p. 1939. 20 See Recital (48).

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Art. 29 Brussels IIter Procedure following a refusal to return the child stance of the rights of custody, entrusted to the authorities of the child’s lawful habitual residence and characterised by the search for the best practical solution for the child. In this respect, it seems that the mechanism of “the last say”, as renovated by the Brussels IIter Regulation, restores some mutual trust between Member States, where this had suffered under the Brussels IIbis Regulation.21 Indeed, although the mechanism of Art. 11(8) Brussels IIbis could be seen as an illustration of mutual trust between the Member States of the European Union, the difficulties of implementing the text in the field of enforcement of the “notwithstanding” return order may have shown that this mutual trust was somewhat undermined by the mechanism. 2. Effectiveness of preferred decisions 26

Without going into detail here,22 it is worth mentioning that the decision ordering the return issued on the basis of Art. 29(6) Brussels IIter by the authorities of the child’s State of origin is subject to a specific enforcement regime, falling under Chapter IV of the Regulation, and more specifically under Art. 42 et seq. Brussels IIter. The order is considered by the text as a privileged one: accompanied by a number of documents (Art. 46) including the certificate of Art. 47 in Annex VI, the decision ordering the return may be enforced immediately in the State where the child is, without any proceedings being required in that Member State.23 In contrast to the ordinary decision ordering the return, the only possibilities for the defendant to oppose the enforcement of the return order made on the basis of Art. 29(6) Brussels IIter will be to invoke a subsequent and irreconcilable decision concerning the same child issued by the authorities of the State in which recognition and enforcement is sought (Art. 50) or to show that there is a danger to the child which arose after the return order was made (Art. 56). Recital 52 Brussels IIter specifies that in order to benefit from the status of “privileged decision”, the decision made by the authorities of the State of origin must be properly certified but also has been made by the authorities of the State of origin of the child seized within three months of the notification of the decision to refuse return. In the event of a later seizure, the decision that would be issued by the authorities of the State of origin could not benefit from the status of a “privileged decision” and would have to circulate under the conditions of ordinary decisions, according to the provisions of Section 1 of Chapter IV of the Brussels IIter Regulation. As a result, authorities deciding on the substance of the rights of custody have to be extremely careful about the certificate they will issue in the case of a referral concomitant with an application for immediate return brought before the authorities of the State where the child is located.

27

With regard to the provisional enforcement of the return order made by the competent authorities on the substance of the rights of custody, the new Regulation remains silent, unlike the Brussels IIbis Regulation which expressly provided for such provisional enforcement in the context of Art. 11(6). As already mentioned above, the new Regulation provides for provisional enforcement in the context of “ordinary” return orders in Art. 27(6),24 but does not extend this provision to return orders notwithstanding. It might be tempting to seek to extend the content of Art. 27(6) Brussels IIter to all return orders, but both the place of the text within Chapter III and its letter and content (addressing classical child return proceedings brought before the courts of the State of refuge of the child) indicate that such provisional enforcement is confined to “ordinary” return orders. A reading of the recitals does not alter the solution (Recital (66)). As a result, the question of provisional enforcement of a “notwithstanding return” decision will be a matter of national law only.

21 22 23 24

See CJEU 1er July 2010, Povse, (Case C-211/10, PPU), ECLI:EU:C:2010:400, prec. See infra Arts. 42 et seq. (Magnus). See Recital (52). See supra Art. 27 notes 24 et seq. (Gallant).

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Chapter IV Recognition and Enforcement (Art. 30–Art. 75) Section 1 General provisions on recognition and enforcement (Art. 30–Art. 41)

Introduction to Articles 30–37 I. General purpose and structure of Chapter IV . . . . . . . . . . . . . . . . II. Scope of Chapter IV . . . . . . . . . . . 1. General aspects of the recognition and enforcement of foreign judgments . . . 2. Material scope . . . . . . . . . . . . . . .

. . . . 1 . . . . 14 . . . . 14 . . . . 22

3. Spatial scope . . . . . . . . . . . . . . . . . . . . 39 4. Temporal scope . . . . . . . . . . . . . . . . . . 41 III. Relationship with domestic rules on recognition and enforcement . . . . . . . . . 42 IV. Legislative history of Subsections 1–3 . . . . 43

Bibliography: Ancel/Muir Watt, La desunion européenne: le Règlement dit ‘Bruxelles II’, RCDIPP 2001, 404; Ancel/Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles II bis, RCDIPP 2005, 569; Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in: Thomas Pfeiffer/Lobach/Tobias Rapp (eds.), Europäisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13; Baratta, Il regolamento comunitario sul diritto internazional privato della famiglia, in: Paolo Picone, Diritto internazionale privato e diritto comunitário (2004), p. 163; Baratta, Réflexions sur la coopération judiciaire civile suite au traité de Lisbonne, in: Liber Fausto Pocar (2009), vol. II, p. 3; Beilfuss, What’s New in Regulation (EU) No 2019/1111?, YbPIL 2020/2021, 95; Biagioni, Il nuovo regolamento (UE) 2019/1111 relativo alla competenza, al riconoscimento e all’esecuzione delle decisioni in materia matrimoniale e di responsabilità gentoriale, e alla sottrazione internazionale, Riv. dir. int. 2019, 1169; Bonomi, Il regolamento comunitario sulla competenza e sul riconoscimento in material matrimoniale e di potestà dei genitori, Riv. dir. int. 2001, 298; Brito, O Regulamento (CE) n.º 2201/2003 do Conselho, de 27 de Novembro de 2003, relativo à competência, ao reconhecimento e à execução de decisões em matéria matrimonial e em matéria de responsabilidade parental, in: Est. António Marques dos Santos, vol. I (2005), p. 305; Calvo Caravaca/Carrascosa González, in: Calvo Caravaca/Carrascosa González (eds.), European Private International Law (2022), ps. 135 and 155; Calvo Caravaca/Carrascosa González/Castellanos Ruiz, Derecho de Familia Internacional (3rd. ed., 2005); Castro Mendes/Teixeira de Sousa, Manual de Processo Civil, 2 vols. (2022); Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: La protection des enfants gagne du ter(rain), RCDIP 2020, 215; Erb-Klünemann/Niethammer-Jürgens, Die neue Brüssel IIa-VO, Familien Rechtsberater 2019, 454; 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’, Clunet 2001, 381; Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017); Gomes de Almeida, Âmbito de aplicação, definições e relações com outros atos do Regulamento Bruxelas II ter, Julgar 2022, 11; Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97; Gruber, Die neue ‚europäische Rechtshängigkeit‘ bei Scheidungsverfahren, FamRZ 2000, 1129; Gruber, Verordnung EU 2019/1111, in: Nomos Kommentar BGB, vol. I (4th ed., 2021); Gruber/Möller, Die Neufassung der EuEheVO, IPRax 2020/5 393, 397; Hau, Internationales Eheverfahrensrecht in der Europäischen Union, FamRZ 1999, 484; Guinchard/Douchy-Oudot, Le nouveau règlement Bruxelles I bis (2014); Helms, Die Anerkennung ausländischer Entscheidungen im Europäischen Eheverfahrensrecht, FamRZ 2001, 257; Honorati, La proposta di revisione del regolamento Bruxelles II-bis: più tutela per i minori e più efficacia nell’esecuzione delle decisioni, RDIPP 2017, 247; Kohler, Internationales Verfahrensrecht für Ehesachen in der Europäischen Union: Die Verordnung ‚Brüssel II‘, NJW 2001, 15; Kohler, Libre circulation du divorce? Observations sur le règlement communautaire concernant les procédures en matière matrimoniale, in: Est. Isabel de Magalhães Collaço (2002), vol. I, p. 231; Kropholler, Internationales Privatrecht (6th ed. 2006); Kruger/ Samyn, Brussels II bis: Successes and Suggested Improvements, (2016) 12 JPIL 132; Lazic´ (ed.), Recommendation to Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union (2018), available on https://www.asser.nl/media/4662/m-5796-ecjustice-cross-border-proceedings-in-family-law-matters-10-publications-00-publications-on-asser-website-recom mendations.pdf, 34; Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, YbPIL 2020/2021, 155; Mankowski, Das Gesetz über die ‚Ehe für alle‘, seine Folgen und sein europäisches Umfeld im Internationalen Privat- und Prozessrecht, IPRax 2017, 541; Martiny, Das Günstigkeitsprinzip bei der Koordina-

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Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 tion unterschiedlicher Regeln für die Anerkennumg ausländischer Entscheidungen, in: Festschrift Reinhold Geimer (2017), p. 451; Mayr, Europäisches Zivilprozessrecht (2nd ed., 2020); Oliveira Magalhães, O regime comum de reconhecimento e execução de decisões estrangeiras em matéria de responsabilidade parental na revisão do Regulamento Bruxelas II bis, Julgar 2022, 123; Pretelli, Provisional Measures in Family Law and the Brussels IIter Regulation, Yb. PIL 2018/2019, 113; Rigaux/Fallon, Droit international privé (3rd. ed., 2005); Rodriguez Pineau, La refundición del Reglamento Bruselas II Bis: de nuevo sobre la función del Derecho Internacional Privado Europeo, REDI 2017, 139; Schack, Internationales Zivilverfahrensrecht mit internationalem Insolvenzrecht und Schiedsverfahrensrech (8th. ed., 2021); Schulz, Das Vollstreckungssystem in der neuen Brüssel IIa-Verordnung, in: Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93; Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/ 1111, YbPIL 2020/2021, 117; Sousa Gonçalves, Âmbito de aplicação do Regulamento n.º 2201/2003 e reconhecimento de decisões em matéria matrimonial. Acórdão do Tribunal da Relação do Porto de 15.1.2013, proc. 2186/06, Cadernos de Direito Privado 2013, 37; Sousa Gonçalves, The Recast of the Regulation on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility (Brussels IIb), LSN Transnational Litigation/Arbitration, Private International Law, & Conflict of Laws eJournal, Vol. 9 No. 12, 03/21/2022, available on ssrn.com; Teixeira de Sousa, Direito Processual Civil Europeu (unpublished report) (2003).

I. General purpose and structure of Chapter IV 1

The facilitation of the circulation of decisions rendered in the Member States is a central aim of the Regulation, stated in Recital 2. The expression “circulation of decisions” may not be the most appropriate to express the mutual recognition of decisions between Member States, since the decisions are legal acts that only produce effects in legal orders rather than persons or tangible things moving across borders, but the general idea is clear and shall be welcome. The same Recital relates the recognition and enforcement of decisions with the access to justice and the efficiency of the proceedings.

2

The following Recital considers both the smooth and correct functioning of the Union’s area of justice and the respect for the Member States’ different legal systems and traditions as vital for the Union. In this context, the mutual trust between the justice systems of the Member States is also invoked both as an objective and as a ground for the facilitation of the recognition and enforcement of decisions. Besides the right of access to justice, the Recital refers further to the free movement of persons and to the other rights of persons, in particular children. This sum of justifications is not beyond any doubt, in particular regarding the temptation to derivate solutions to transnational relationships from the freedom of circulation of persons rather than from an appropriate assessment of Private International Law values and principles. These values and principles also postulate the protection of the trust based upon the definition of the legal relationship by foreign court judgments, the cross border practical effect of these decisions, at least in private matters, and the protection of fundamental rights, namely children rights.

3

In any case, the connecting of the mutual recognition of decisions with the right of access to justice, which constitutes a fundamental right in the legal order of the European Union (Art. 47 of the Charter of Fundamental Rights), is understandable in the light of the Art. 67(4) of the Treaty for Functioning of the European Union that relates the principle of mutual recognition of judicial and extrajudicial decisions in civil matters with the facilitation of access to justice. The Chapter 3 of Title V of Part III of the same Treaty basis the judicial cooperation in civil matters in this principle of mutual recognition. The underlying reasoning seems to be that the freedoms of movement of people, goods and services within the European Union translate into an increase in transnational disputes. The costs and difficulties faced by the recognition of judgments given in one Member State in another Member State are seen as affecting the right of access to justice of the parties to these transnational disputes.1

4

The basic idea of mutual trust in the administration of justice in the Union, combined with the effective protection of the best interests of the child, is invoked to justify the recognition in matrimonial matters and in matters of parental responsibility by operation of law without any special procedure

1 See Baratta in Liber Fausto Pocar (2009), vol. II, p. 3, p. 7–8.

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being required and update of civil status records accordingly (Recital 54), and that the grounds for non-recognition should be kept to the minimum (Recital 55). In addition, the aim of making cross-border litigation concerning children less time consuming and 5 costly is invoked in favour of the abolition of the declaration of enforceability or the registration for enforcement, as applicable, prior to enforcement in the Member State of enforcement for all decisions in matters of parental responsibility (Recital 58).2 While Brussels IIbis Regulation only abolished this requirement for certain decisions granting rights of access and certain decisions entailing the return of a child, the Brussels IIter Regulation abolish it for the cross-border enforcement of all decisions in matters of parental responsibility, while still retaining an even more favourable treatment of certain decisions granting rights of access and certain decisions entailing the return of a child. As a result, “subject to this Regulation, a decision given by the court of any other Member State should be treated as if it had been given in the Member State of enforcement.” This reasoning is exemplified in the Explanatory Memorandum of the Commission’s Proposal: the “time for obtaining exequatur varies between the Member States; it can take from a couple of days to several months, depending on the jurisdiction and the complexity of the case. The time indicated does not take into account the time required for collecting the documents necessary for the application and translations. If an appeal is lodged against the grant or refusal of exequatur, this delay increases considerably: appeal proceedings can take up to two years in some Member States. This is particularly frustrating for parents who expect that decisions concerning children take effect without unnecessary delay”. “There might also be contradictory situations where a Member State must enforce access rights under the Regulation while, at the same time, the recognition and/or enforcement of custody rights granted in the same decision may be challenged and perhaps refused in the same Member State because decisions on both rights are currently subject to different procedures under the Regulation”.3 “In addition, the requirement of exequatur generated average delays per case of several months and costs reaching up to 4,000 Euro for citizens”.4 As a result, the Regulation aligns its system of recognition with the Brussels Ibis Regulation.5 In par- 6 allel with this Regulation, the decision given in another Member State and which is enforceable in that Member State is enforceable by operation of law (Art. 34(1) Brussels IIter). The party seeking enforcement can apply directly for enforcement (Arts. 34, 51 and 52 Brussels IIter). The rights of defence of the party opposing enforcement are assured at the enforcement stage through an application for refusal of enforcement (Arts. 41, 50, 57 and 59 Brussels IIter).6 The general abolition of the exequatur for the enforcement was welcome by most authors.7 However, it can be criticized both from the point of view of the respect for the autonomy of the different Member States’ legal systems and of the need, in the sensitive matters of parental responsibility, of a control of the grounds for refusal of enforcement independently of a party application for refusal of enforcement, namely the control of the public policy ground.8 The idea of mutual trust and the effective protection of the best interests of the child may 2 See further the Explanatory Memorandum of the Commission’s Proposal, p. 14: “Today, judicial cooperation and the level of trust among Member States have reached a degree of maturity which permits the move towards a simpler and less costly system of circulation of decisions, removing the existing formalities among Member States”. 3 P. 4. 4 P. 8. 5 See also Explanatory Memorandum of the Proposal, p. 15–16. 6 See also Recital 62. 7 See namely Kruger/Samyn, (2016) 12 JPIL 132; Honorati, RDIPP 2017, 247; Lazic´ (ed.), Recommendation to Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union (2018), available at https://www.asser.nl/media/4662/m5796-ec-justice-cross-border-proceedings-in-family-law-matters-10-publications-00-publications-on-asser-web site-recommendations.pdf, 34; Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, YbPIL 2020/2021, 155, 157: Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/1111, YbPIL 2020/2021, 117, 135. See further Guinchard/Douchy-Oudot, Le nouveau règlement Bruxelles I bis (2014), notes 12 et seq. 8 See also Rodriguez Pineau, La refundición del Reglamento Bruselas II Bis: de nuevo sobre la función del Derecho Internacional Privado Europeo, REDI 2017, 139, 148 and 164; Lima Pinheiro, Direito Internacional Privado, vol. III, t. II, Direito de Reconhecimento (3rd ed., 2019), 176; Antomo in Pfeiffer/Lobach/Rapp (eds.), Euro-

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Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 come into tension,9 and this is one of the issues in which a balance must be struck. To address this concern, Recital 62 states that it is for national law to determine whether the grounds for refusal of enforcement set out in the Regulation are to be examined ex officio (at the court’s own motion) or upon a party application. However, it seems that the ex officio examination of a ground of refusal in virtue of national law depends always on a party application for refusal of enforcement (see also Recital 67 and infra Introduction 30–37 note 42 [de Lima Pinheiro] and Art. 30 note 4 [de Lima Pinheiro]). 7

Chapter 4 is divided in five Sections. Section 1 is titled “General provisions on recognition and enforcement”, and contains general rules on recognition (Subsection 1), enforceability and enforcement (Subsection 2), the certificate to be produced for recognition and for enforcement (Subsection 3), refusal of recognition and enforcement (Subsection 4), including reference to the procedure for refusal of recognition.

8

Section 2 deals with the recognition and enforcement of certain “privileged decisions”: decisions granting rights of access and decisions pursuant to Art. 29(6) Brussels IIter in so far as they entail the return of the child (Art. 42(1) Brussels IIter). The decisions pursuant to Art. 29(6) Brussels IIter are the decisions on the substance of rights of custody given by the court having jurisdiction over the matter seized within three months of the notification of the decision refusing the return of the child under the 1980 Hague Convention, or if custody proceedings were already pending before that court at the moment it received that decision from the court having refused the return of the child, any decision resulting from those proceedings regarding the substance of rights of custody (supra Art. 29 notes 16–26 [Gallant]).10 If the court having jurisdiction over the substance of rights of custody is seized after the three months have expired, or the conditions for issuing a certificate for such privileged decisions are not met, the resulting decision on the substance of rights of custody should be recognised and enforced in other Member States in accordance with Section 1 (Recital 52). Furthermore, Section 2 does not prevent a party from seeking recognition and enforcement of privileged decisions in accordance with the provisions on recognition and enforcement laid down in Section 1 (Art. 42(2) Brussels IIter).

9

The decisions ordering the return of the child under the 1980 Hague Convention and the provisional measures adopted by the authorities of the Member State to which the child was removed or in which she was retained are recognisable and enforceable under Section 1, including when the child is further removed to another Member State.11

10

Section 2 contains special rules on recognition (Subsection 1), enforceability and enforcement (Subsection 2), certificate (Subsection 3) and refusal of recognition and enforcement (Subsection 4) of privileged decisions. According to these rules, the privileged decisions benefit of a more favourable regime of recognition and enforcement, according to which the recognition and enforcement can only be refused where the decision is irreconcilable with a later decision relating to parental responsibility concerning the same child (Arts. 43(1) and 50 Brussels IIter).

11

Section 3 provides further rules on enforcement common to common decisions and to privileged decisions, including reference to the enforcement procedure, partial enforcement and arrangements for the exercise of rights of access (Subsection 1) and suspension of enforcement proceedings and refusal of enforcement (Subsection 2). Section 4 governs the recognition and enforcement of authentic instruments and agreements. The Chapter ends with Section V containing other provisions: prohibition of review of jurisdiction of the court of origin, irrelevance of differences in the law applicable to päisches Familien- und Erbrecht – Stand und Perspektiven (2020), p. 13, 48–49; and Sousa Gonçalves, The Recast of the Regulation on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility (Brussels IIb), LSN Transnational Litigation/Arbitration, Private International Law, & Conflict of Laws eJournal, Vol. 9 No. 12, 03/21/2022, available on ssrn.com, 10–11. 9 See also Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, YbPIL, 2020/2021, 155, passim, maxime 180 et seq. 10 See also Gruber/Möller, IPRax 2020/5, 393, 397. 11 See also Corneloup/Kruger, RCDIP 2020/2, 219, 225–226; and Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 101.

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divorce, legal separation or marriage annulment, non-review as to substance, appeal in certain Member States, costs, legal aid and security, bond or deposit. Chapter III, concerning international child abduction, also contains provisions regarding enforcement of decisions given in other Member States (Arts. 22 and 29 Brussels IIter), which have to be articulated with Chapter IV.

12

In conclusion, the structure of Chapter IV and, more in general, of the Regulation in what concerns recognition and enforcement of decisions raises difficulties in the articulation between the different provisions,12 and therefore requires a redoubled effort of the legal praxis.13

13

II. Scope of Chapter IV 1. General aspects of the recognition and enforcement of foreign judgments The recognition has as object the effects of decisions: constitutive effects of dissolution of matrimo- 14 nial ties and constitutive and declaratory effects concerning the attribution, exercise, delegation, restriction or termination of parental responsibility. The recognition under the Regulation shall be understood as an extension of the effects that the judgments produce in the legal order of the State of origin to the legal order of the State of recognition.14 The recognition judgments or declarations of enforceability of other Member States are not recogni- 15 sable under the Regulation.15 The recognition of a decision in matrimonial or parental responsibility matters by the court of a Member State, either as main issue or incidentally, is not eligible for recognition under the Regulation in the other Member States. The same must be said of the declaration of enforceability on parental responsibility matters. This is currently known as the prohibition of double exequatur. This prohibition should cover not only declarations of enforceability and confirmation judgments (such as those issued by Portuguese courts under the domestic recognition regime), but also the judgments that, although formally resulting from a new action, are based on the foreign judgment and are substantially equivalent to those judgments.16 Otherwise, the Regulation regime would be indirectly applicable to the recognition and enforcement of third States’ judgments and there would not be a control of the grounds for refusal of recognition and enforcement regarding the first judgment, namely its compatibility with the public policy of the recognition State. However, a recent ECJ’s ruling regarding Brussels Ibis Regulation held that Member States’ judgments based upon judgments of third States are recognizable and enforceable under that Regulation where those Member States’ judgments are made at the end of adversarial proceedings.17 The extension of this understanding to the Brussels IIter Regulation is conceivable. 12 See Corneloup/Kruger, RCDIP 2020/2, 219, 232 and 244. 13 See Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 120. See also Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/1111, YbPIL 2020/2021, 117, 119. 14 Cf. Geimer/Schütze/Geimer, Art. 21 note 2; Rauscher/Rauscher, Art. 21 note 13; and Magnus/Mankowski/Siehr, Art. 21 note 10. 15 This is the common view regarding the EU instruments and many domestic systems – cf., namely, Geimer/ Schütze/Geimer, Art. 21 notes 45–46; Martiny in Handbuch des Internationalen Zivilverfahrensrechts, vol. III/ 1 (1984), note 64; Gothot/Holleaux, La Convention de Bruxelles du 27 Septembre 1968 (1985), p. 134–135; Teixeira de Sousa/Moura Vicente, Comentário à Convenção de Bruxelas de 27 de Setembro de 1968 Relativa à Competência Judiciária e à Execução de Decisões em Matéria Civil e Comercial (1994), p. 139; Teixeira de Sousa, Direito Processual Civil Europeu (unpublished Report.) (2003), p. 166 and 169; Layton/Mercer, European Civil Practice (2nd ed. 2004), notes 24.038–24.039; Magnus/Mankowski/Merrett, Brussels Ibis Regulation (2016), Art. 2 note 12; and Rauscher/Leible, Brüssel Ia-VO (2016), Art. 2 note 17. This view was implicitly accepted by the ECJ in Owens Bank v. Bracco (Case C-129/92), ECLI:EU:C:1994:13, para. 26 et seq., in which it was denied the autonomy, regarding to the recognition proceedings, of the judgment deciding whether the judgment of a third State was obtained by fraud. 16 Cf. Gothot/Holleaux, La Convention de Bruxelles du 27 Septembre 1968, p. 135; compare Droz, Compétence judiciaire et effets des jugements dans le Marché Commun (1972), p. 271 fn. 1. 17 J v. H Limited (Case C-568/20) [ECLI:EU:C:2022:264], para. 46–47, remarking that, if the defendant could not contest in these proceedings the substance of the claims which gave rise to the third State judgments, the

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Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 16

The recognition and enforceability system of the regulation is automatic, i.e., by operation of law. The recognition does not depend on a special procedure and the enforcement does not require a declaration of enforceability (Arts. 30(1) and 34(1) Brussels IIter). The system is also formal: according to Art. 71 Brussels IIter, under no circumstances may a decision given in another Member State be reviewed as to its substance (infra Art. 71 notes 4 et seq. [Queirolo/Dominelli]). Therefore, there is no room for examination of the correctness of the finding of facts and of the determination, interpretation and application of the law by the court of origin. Furthermore, the formal control is also limited to the minimum required, in the light of the principal of mutual trust and of the underlying aim of facilitating the recognition and enforcement and of effectively protecting the best interests of the child (Recital 55). It does not include the review of jurisdiction of the court of origin. The test of public policy may not be applied to the rules relating to jurisdiction set out in Arts. 3 to 14 Brussels IIter (Art. 69 Brussels IIter).

17

The prohibition of the review as to the substance does not prevent the courts of the recognition State from issuing a new decision on parental responsibility when there has been a change in circumstances existing at the time the recognized decision was rendered.18

18

As for the recognition of the constitutive effect, the situation is similar to that under Brussels Ibis and IIbis Regulations.19

19

The Regulation even expressly provides that the recognition of a decision in matrimonial matters may not be refused because the law of the Member State in which such recognition is invoked would not allow divorce, legal separation or marriage annulment on the same facts (Art. 70 Brussels IIter). The expression “law of the Member Sate” includes both the substantive law and the conflicts law.20 Therefore, the recognition of the constitutive effect does not depend on the applicable law. This is, in my opinion, wrong.21 For example, the dissolution of the marriage by a divorce judgment given in another Member-State is recognisable even if the divorce is not recognised by the law applicable according to the Conflicts Law of the forum Member State (the Divorce Regulation is only applicable in the Member States that participate in this reinforced cooperation).

20

Nevertheless, it is doubtful whether a decision that does not meet the conditions for recognition established by the Regulation can produce its constitutive effect under the governing law. The reply to this question can be different under the Brussels Ibis Regulation and under the Brussels IIter Regulation, because Recital 67 of this Regulation seems to contradict the prevailing view according to which the recognition based upon a most favourable domestic regime is excluded within the scope of the Regulation (infra Introduction 30–37 note 42 [de Lima Pinheiro]).

21

According to Recitals 54 and 62, it is for national law to determine whether the grounds for refusal of recognition and enforcement set out in the Regulation are to be examined ex officio or upon application. The Commission’s Proposal provided that the grounds for refusing recognition could only be considered upon application of the party opposing recognition (Art. 38). The solution of leaving the issue to the law of the forum Member State resulted from a compromise with some States that want to have knowledge of these grounds ex officio, especially the contrariety to public policy.22 However, not only that statement of Recital 62 is made in the sequence of the reference to the party application for refusal of recognition or enforcement, but also Recital 67 states that suspension or refusal of enforcement in the Member State of enforcement should be upon application. Therefore, it seems that at least the ex officio examination of grounds for refusal of enforcement by virtue of national law only can take place upon an application for refusal of enforcement.

18 19 20 21 22

enforcement could be refused on the ground that it was manifestly incompatible with national public policy. Cf. Alegría Borrás, Report (1998), note 78; Thomas/Putzo/Hüßtege, Art. 26 note 1. Cf. Kropholler, Internationales Privatrecht (6th ed. 2006), 682. Cf. Alegría Borrás, Report (1998), note 76; Thomas/Putzo/Hüßtege, Art. 25 note 2; and Staudinger/Spellenberg, Art. 25 note 4. See further Lima Pinheiro, Direito Internacional Privado, vol. III, t. II, Direito de Reconhecimento (3rd ed., 2019), § 97 A. See Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 99.

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2. Material scope The material scope of Chapter IV is delimited, in first place, by the material scope of the Regulation. 22 This material scope was examined above in this commentary (Introduction notes 98 et seq., Art. 1 notes 5 et seq.), and, therefore, it will be only recalled, summarily. According to Art. 1 Brussels IIter, the chapter applies in civil matters of divorce, legal separation or marriage annulment; and the attribution, exercise, delegation, restriction or termination of parental responsibility, including in particular, rights of custody and rights of access, guardianship, curatorship and similar institutions, the designation and functions of any person or body having charge of the person or property of a child, or representing or assisting a child, the placement of a child in institutional or foster care, and measures for the protection of the child relating to the administration, conservation or disposal of the property of a child. “Parental responsibility” means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by a decision, by operation of law or by an agreement having legal effect, including rights of custody and rights of access (Art. 2(2)(7) Brussels IIter). “Rights of custody” includes rights and duties relating to the care of the person of a child and in particular the right to determine the place of residence of a child (Art. 2(2)(9) Brussels IIter). “Rights of access” means rights of access to a child, including the right to take a child to a place other than his or her habitual residence for a limited period of time (Art. 2(2)(10) Brussels IIter). The parental responsibility also includes, in general, all the measures for the protection of the child in civil matters that are not expressly excluded,23 even if based upon public law rules and involving deprivation of liberty.24 Recital 10 of Brussels IIbis Regulation, which excluded measures 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, is not retaken in Brussels IIter Regulation. Although it is clear that public measures of protection, namely in matters of education and health,25 are not generally excluded, it is no less clear that some public measures, such as decisions on the right of asylum and on immigration, are excluded, because they are not civil matters.26 Measures taken as a result of criminal law offences committed by children are also excluded (Art. 1(4)(g) Brussels IIter). Chapter IV provides the bulk of the Regulation’s rules on recognition and enforcement of decisions. 23 “Decision” for this purpose means a decision of any authority in any Member State with jurisdiction in the matters falling within the scope of the regulation including a decree, order or judgment, granting divorce, legal separation, or annulment of a marriage, or concerning matters of parental responsibility (Art. 2(1)§ 1 and (2)(1) Brussels IIter) (supra Art. 2 notes 5 et seq. [Pintens]). It includes also a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which has to be enforced in a Member State other than the Member State where the decision was given and provisional, including protective, measures ordered by a court which by virtue of the regulation has jurisdiction as to the substance of the matter or measures ordered in accordance with Art. 27(5) Brussels IIter in conjunction with Art. 15 Brussels IIter (Art. 2(1)§ 2 Brussels IIter). It does not include provisional measures ordered by such a court without the respondent being summoned to appear, unless the decision containing the measure is served on the respondent prior to enforcement (Art. 2(1)§ 3 Brussels IIter). Art. 2(1)§ 2(a) Brussels IIter envisages situations in which a decision of return of a child is rendered under the 1980 Hague Convention in the Member State to which the child was removed or in which she was retained and before the enforcement the child is removed to another Member State. This avoids the need of a new request of return of the child under the 1980 Hague Convention in this an-

23 Cf. Recital 7; Staudinger/Spellenberg, Art. 1 notes 49 and 51; Ancel/Muir Watt, RCDIPP 2005, 569, 571; Rauscher/Rauscher, Art. 1 note 22. Compare Rigaux/Fallon, Droit international privé (3rd. ed., 2005), 629 and 643. 24 Cf. C. (Case C-435/06) ECLI:EU:C:2007:714, A. (Case C-523/07) ECLI:EU:C:2009:225, and Health Service Executive (Case C-92/12 PPU) ECLI:EU:C:2012:255, para. 60 and 66. See, on the two first cases, Boele-Woelki/ Jänterä-Jareborg in Liber Amicorum Kurt Siehr (2010), p. 125, 141 et seq. 25 Compare Calvo Caravaca/Carrascosa González, in: Calvo Caravaca/Carrascosa González (eds.), European Private International Law (2022), p. 157. 26 Compare Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.26.

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24

Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 other Member State.27 As a matter of fact, as stated in Recital 16, return proceedings under the 1980 Hague Convention are not proceedings on the substance of parental responsibility,28 but decisions ordering the return of a child pursuant to that Convention should benefit from recognition and enforcement under Chapter IV where they need to be enforced in another Member State due to a further abduction after return was ordered. Thus, according to Art. 1(3) Brussels IIter, Chapter IV applies “to decisions ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which have to be enforced in a Member State other than the Member State where the decision was given” (see also Art. 96 Brussels IIter). This is without prejudice to the possibility of starting new proceedings for the return of a child under the 1980 Hague Convention with regard to the further abduction (Recital 16). 25

Art. 2(1)§ 2(b) Brussels IIter concerns provisional measures taken by the court of the Member State to which the child was removed or in which she was retained, in accordance with Arts. 27(5) and 15 of the Regulation, where it orders the return of the child under the 1980 Hague Convention, in order to protect the child from the grave risk referred to in point (b) of Art. 13(1) of the same Convention. The ratio of including these measures within the scope of Chapter IV is presented in the Explanatory Memorandum of the Proposal: “Where the child might be at a grave risk of harm or might otherwise be placed in an intolerable situation if returned to the country of the child’s habitual residence without any safeguards, it should also be possible for the court of the Member State of refuge to order urgent protective measures required there and which, if necessary, can also ‘travel with the child’ to the State of habitual residence where a final decision on the substance has to be taken. Such an urgent measure would be recognised by operation of law in the Member State where the child was habitually resident immediately before the wrongful removal or retention but would lapse as soon as the courts of that State have taken the measures required by the situation. For example, the court before which return proceedings are pending will be able to grant access rights to one of the parents which will also be enforceable in the Member State of habitual residence of the child until the court of that country takes a final decision with respect to the access to a child” (see also Recital 46).29

26

Under the Brussels II and Brussels IIbis Regulation, it was already understood that the term “court” is used with a broad meaning, including any judicial or administrative authorities competent in the matter. According to the prevailing view, the proceedings of pure religious nature are excluded,30 without prejudice to the application of the Regulation to the recognition of decisions as to the invalidity of a marriage rendered by ecclesiastic authorities under the Treaties concluded by Portugal, Italy, Spain and Malta with the Holy See (Art. 99 Brussels IIter). This was up to a certain point confirmed by the ECJ ruling in the Sahyouni II case (2017), in which it was held that the Divorce Regulation, interpreted in a consistent way with the Brussels IIbis Regulation, covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.31 The judgment does not clarify if the divorce has to be granted or confirmed by a public authority, as it is normally understood,32 or if it can be granted by a religious authority by delegation and under control of a public authority.33 While Art. 2(1) of the Proposal referred only to judicial and administrative 27 See Erb-Klünemann/Niethammer-Jürgens, Familien Rechtsberater (2019), 454, 457, and Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 108. 28 See also Barbara Mercredi v. Richard Chaffe (Case C-497/10 PPU), ECLI:EU:C:2010:829. 29 13. See further Pretelli, Yb. PIL 2018/2019, 113, 127, 136–137 and 143 et seq.; and Corneloup/Kruger, RCDIP 2020, 215, 225. Compare Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 111–112. 30 Cf. Alegría Borrás, Report (1998), note 20; Baratta in Paolo Picone, Diritto internazionale privato e diritto comunitário (2004), p. 163, 167; Calvo Caravaca/Carrascosa González/Castellanos Ruiz, Derecho de Familia Internacional (3rd. ed., 2005), p. 132; Staudinger/Spellenberg, Art. 21 notes 16 and 22; Corneloup/Teixeira de Sousa, Art. 22 note 4; Rauscher/Rauscher, Art. 1 note 11; and Castro Mendes/Teixeira de Sousa, Manual de Processo Civil, vol. II (2022), ps. 362–363. For a different view, see Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 54–55. 31 Soha Sahyouni v. Raja Mamisch, (Case C-372/16), ECLI:EU:C:2017:988, para. 40–42, 45 and 48. 32 See, namely, Geimer/Schütze/Geimer, Art. 1 note 24, and Magnus/Mankowski/Siehr, Art. 21 note 4. 33 Apparently for a convergent view, Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.54, but defending that it is the public judgement recognizing the religious decision that is object of the recognition under

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authorities, Art. 2(2)(1) Brussels IIter defines “court” as any authority in any Member State with jurisdiction in the matters falling within the scope of the Regulation. In the light of Recital 14, this includes other authorities, such as notaries, who are not necessarily administrative authorities, and, therefore, it seems that the authority at stake is not necessarily of public nature. Some doubts remain regarding the degree of public control required. According to Recital 14, any “agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognised or enforced as a ‘decision’”. This wording could raise doubts regarding mutual consent divorces in which the control of an authority is basically limited, regarding dissolution of the matrimonial ties, to the verification of the parties consent.34 However, it seems that, for this purpose, “examination of the substance” includes the control of the required mutual consent.35 Therefore, it seems that a divorce by mutual consent granted or approved by any authority is covered if there is, at least, a control of the required consent.36 In any case, the delimitation between “decisions” and authentic documents or agreements covered by Art. 65(1) Brussels IIter may cause difficulties and justify a clarification by the ECJ. Private divorces, i.e., divorces granted without the constitutive intervention or the control of authori- 27 ties, may qualify for recognition under Art. 65(1) Brussels IIter when they are drawn up or registered as an authentic document or an agreement by a public authority, or other authority as communicated to the Commission by a Member State for that purpose, with binding effect in the Member State of origin (infra Art. 64 notes 4 et seq. [Fra˛ckowiak-Adamska]).37 Otherwise, the effects of private divorces should depend on the applicable law according to the forum choice-of-law rule and on their compatibility with the forum public policy.38 Recital 9, following the precedent Regulations, states that as regards decisions on divorce, legal se- 28 paration or marriage annulment, the Regulation should apply only to the dissolution of matrimonial ties. It should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures.39 Therefore, other consequences of divorce, separation or marriage annulment, namely patrimonial, are not recognisable under the Regulation.40 Other sources of law, such as the Regulations on matrimonial property regimes and on maintenance, can come into play regarding these issues. The same Recital also confirms the prevailing view regarding the precedent Regulations that decisions refusing the dissolution of matrimonial ties are not covered by its provisions on recognition.41 To

34 35 36 37 38 39

40 41

the Regulation. See also Corneloup/Chalas, Art. 21 note 9, and Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 54–55. See Beilfuss, What’s New in Regulation (EU) No 2019/1111?, YbPIL, 2020–2021, 95, 103–104. See further comparative overview in Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, YbPIL, 2020/2021, 155, 160–164. See also Lazic´/Pretelli, op. cit., 168–169. See also Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), notes 7.22 and 7.54. More restrictively, Gruber/ Möller, IPRax 2020/5, 393, 402; Gruber, Verordnung EU 2019/1111, in: Nomos Kommentar BGB, vol. I (4th ed., 2021), notes 12–16. See also Arts. 2(2)(2) and (3) and 103(1)(a) and Recital 14. For the situation under Brussels IIbis Regulation, see Bonomi, Riv. dir. int. 2001, 298, 341, and Staudinger/Spellenberg, Art. 21 Brussels IIbis notes 16–18. See Recital 14 and Lima Pinheiro, Direito Internacional Privado, vol III, t. II, Reconhecimento de Decisões Estrangeiras (3rd ed., 2019), § 98 B, with more references. Compare Gruber, Verordnung EU 2019/1111, in: Nomos Kommentar BGB, vol. I (4th ed., 2021), note 9. Compare, regarding the exclusion of the “grounds for divorce”, already contained in Recital 8 of Brussels IIbis Regulation, the remarks of Corneloup/Gruber, Art. 1 notes 47 et seq.; Magnus/Mankowski/Pintens, Art. 1 notes 38 et seq. and 43 et seq.; Sousa Gonçalves, Cadernos de Direito Privado 2013, 37, 54; and Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 74–76. Cf. Alegría Borrás, Report (1998), notes 22 and 64. Cf. Baratta in Paolo Picone, Diritto internazionale privato e diritto comunitário (2004), p. 163, 187; Thomas/ Putzo/Hüßtege, Vorbem Art. 21 note 1b; Staudinger/Spellenberg, Art. 21 notes 31 et seq.; Geimer/Schütze/Geimer, Art. 21 note 7; Corneloup/Teixeira de Sousa, Art. 22 note 4; Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 488–489; Gomes de Almeida, Âmbito de aplicação, definições e relações com outros atos do Regulamento Bruxelas II ter, Julgar 2022, 11, 19–20; Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97,

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29

Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 justify this limitation, the Alegría Borrás Report (regarding the Convention on which Brussels II Regulation was based) states that taking “into account, on the one hand, the mandate received, which was to prepare a Convention to facilitate recognition and enforcement of divorces, legal separations and marriage annulments, and, on the other hand, the major differences between the Member States on divorce and separation, it is understood that the word ‘judgment’ refers only to positive decisions, that is to say those that do grant a divorce, legal separation or marriage annulment”.42 The real reason, however, seems to lie in the fear of Scandinavian countries that the recognition of decisions based on more restrictive foreign laws could harm the right to divorce enshrined in their domestic legislation.43 The non-recognition of a negative judgment given in a Member State in another Member State whose courts are internationally competent for divorce opens the possibility of a new action being brought in this Member State.44 30

The decisions on marriage annulment, sought either by both spouses or by third parties, are covered, even after the death of one of the spouses.45 Differently, it is controversial whether actions to declare the existence or non-existence of the marriage are covered.46

31

According to the prevailing view, the Regulation only applies to the dissolution of marriage in strict sense. It does not apply, at least directly, to the registered partnerships, nor to informal unions either.47 The application of Brussels II and IIbis Regulations to same-sex marriages or unions subject to a similar regime has originated much debate.48 As a starting point, it shall be stressed that the relevant concept of marriage, as in general the concepts used in the Regulation, should be autonomously

42 43 44

45

46

47

48

99–100; and, regarding Brussels II Regulation, Alegría Borrás, Report (1998), note 60. For a different view, Corneloup/Chalas, Art. 21 notes 31 et seq.; Calvo Caravaca/Carrascoza González, Tratado de Derecho Internacional Privado (2020), XII.VIII.1.A; Magnus/Mankowski/Siehr, Art. 22 note 4; and Gruber, Verordnung EU 2019/1111, in: Nomos Kommentar BGB, vol. I (4th ed., 2021), note 9. Note 60. Cf. Ancel/Muir Watt, RCDIPP 2001, 404, 436. See further the critique of Gaudemet-Tallon, Clunet 2001, 381, 406. This does not preclude the recognition of the negative decision under the domestic law of the Member States – cf. Rauscher/Rauscher, Art. 2 note 11, and infra Art. 30 note 20 (de Lima Pinheiro), with further references; for the contrary view, Teixeira de Sousa, Direito Processual Civil Europeu (unpublished report) (2003), p. 14 and 222–223; and Corneloup/Teixeira de Sousa, Art. 22 note 8. Cf. Edyta Mikołajczyk v Marie Louise Czarnecka and Stefan Czarnecki (Case C-294/15), ECLI:EU:C:2016:772, para. 37. The Report Alegría Borrás (1998) could even suggest that the Regulation does not apply when one of the spouses is deceased – cf. note 27. The same view was expressed by Rauscher/Rauscher, Art. 1 note 3, with more references, and is maintained by Geimer/Schütze/Geimer, Art. 21 note 15. In the affirmative sense, Hau, Internationales Eheverfahrensrecht in der Europäischen Union”, FamRZ 1999, 484; Gruber, FamRZ 2000, 1129, Teixeira de Sousa, Direito Processual Civil Europeu (unpublished report) (2003), p. 107; Rauscher/Rauscher, Art. 1 notes 15–16, but with teleological reduction of Arts. 21 et seq. (recognition of other Member States’ decisions) regarding actions to declare the existence; Corneloup/Gruber, Art. 1 notes 17–20; and Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 38–39. For the contrary view, Helms, FamRZ 2001, 257, 259, and MüKoFamFG/Gottwald, Art. 1 note 8. Cf. Kohler, NJW 2001, 15; Thomas/Putzo/Hüßtege, Vorbem Art. 1 note 5; Teixeira de Sousa, Direito Processual Civil Europeu (unpublished report) (2003), p. 106; Brito in Est. António Marques dos Santos, vol. I (2005), p. 305, 318; Rauscher/Rauscher, Art. 1 note 8; Corneloup/Gruber, Art. 1 notes 35–37; Magnus/Mankowski, Introduction note 74; and Castro Mendes/Teixeira de Sousa, Manual de Processo Civil, vol. I (2022), p. 233. See further Geimer/Schütze/Geimer, Art. 1 notes 21–22. For a different view, regarding the registered partnerships, Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.21. See Gaudemet-Tallon, Clunet 2001, 381, 387. In negative sense, Kohler in Est. Isabel de Magalhães Collaço, vol. I (2002), p. 231, 247 (but admitting that the issue should be raised at the legislative policy level); Rauscher/Rauscher, Art. 1 note 6; Magnus/Mankowski/Pintens, Art. 1 notes 21–23, but admitting the revision of the issue; and Magnus/Mankowski/Siehr, Art. 22 note 2; in affirmative sense, Calvo Caravaca/Carrascosa González/Castellanos Ruiz, Derecho de Familia Internacional (3rd. ed., 2005), p. 108; Corneloup/Gruber, Art. 1 notes 30–33; Corneloup/Hammje, Art. 1 note 29 et seq.; Corneloup/Teixeira de Sousa, Art. 22 note 4; Mankowski, IPRax 2017, 541, 546 and 55; Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 46–47; and Castro Mendes/Teixeira de Sousa, Manual de Processo Civil, vol. I (2022), p. 233. See further Staudinger/Spellenberg, Art. 1 Brussels IIbis notes. 3–5; and Thomas/Putzo/Hüßtege, Vorbem Art. 1 note 5.

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interpreted, do not depending on the domestic forum law.49 Bearing in mind the growing number of Member States that have introduced same-sex marriage in their legal orders, it seems that there is no reason to maintain the doubts regarding its inclusion under the Brussels IIter Regulation.50 Further to the abovementioned definition of “rights of custody” provided in Art. 2(2)(9) Brussels II- 32 ter, Recital 18 specifies that “a person should be deemed to have ‘rights of custody’ where, pursuant to a decision, by operation of law or by an agreement having legal effect under the law of the Member State where the child is habitually resident, a holder of parental responsibility cannot decide on the child’s place of residence without the consent of that person, regardless of the term used under national law”. On the other hand, the right of access must be understood in broad terms,51 as it covers not only the parents, but also other people with whom it is important that the child maintain personal relationships, namely grandparents.52 As regards the property of the child, the Regulation applies only to measures for the protection of the child, namely the designation and functions of a person or body having charge of the child’s property, representing or assisting the child, and the administration, conservation or disposal of the child’s property. For example, the approval of an agreement for the sharing-out of an estate concluded by a guardian ad litem on behalf of minor children of the deceased.53 Measures relating to the child’s property, which do not concern the protection of the child, continue to be governed by Brussels Ibis Regulation (Recital 10).

33

Contrary to decisions on dissolution of matrimonial ties, negative effects of decisions on parental re- 34 sponsibility, i.e., denial of a parental responsibility claim of a person, are recognisable under the Regulation.54 Although return proceedings under the 1980 Hague Convention are not proceedings on the sub- 35 stance of parental responsibility, as abovementioned, a return order may be non-dissociable of a decision on the substance of parental responsibility.55 Therefore, the ECJ held that a holder of parental responsibility may apply for the recognition and enforcement under Brussels IIbis Regulation of a decision relating to parental authority and the return of children that has been made by a court having jurisdiction as to the substance of the matter, even if that holder of parental responsibility has not submitted an application for return based on the 1980 Hague Convention.56 This solution seems to apply also under Brussels IIter Regulation (see also the privileged decisions referred above Introduction 30–37 note 8 [de Lima Pinheiro]). It has already been mentioned that Chapter IV applies to the recognition and enforcement of some 36 provisional, including protective, measures (Art. 2(1)§ 2(b) Brussels IIter). First, measures ordered by a court that by virtue of the Regulation has jurisdiction as to the substance of the matter. Second, measures ordered in accordance with Art. 27(5) in conjunction with Art. 15 Brussels IIter (Art. 2(1)§ 2(b) Brussels IIter). It does not include provisional measures ordered by such a court without the respon49 Cf. namely, Geimer/Schütze/Geimer, Art. 1 note 21, and Magnus/Mankowski/Pintens, Art. 1 note 21. Compare, for the application of the substantive law of the Member State of the forum, Corneloup/Chalas, Art. 21 note 30; Corneloup/Kruger, RCDIP 2020/2, 219, 243; Calvo Caravaca/Carrascoza González, Tratado de Derecho Internacional Privado (2020), XII.II.1.B.a, and Calvo Caravaca/Carrascosa González, in: Calvo Caravaca/Carrascosa González (eds.), European Private International Law (2022), p. 136. See further Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/1111, YbPIL 2020/2021, 117, 123. 50 See also Gruber/Möller, IPRax 2020, 393, 398; Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.21; Gruber, Verordnung EU 2019/1111, in: Nomos Kommentar BGB, vol. I (4th ed., 2021), note 5; and Gomes de Almeida, Âmbito de aplicação, definições e relações com outros atos do Regulamento Bruxelas II ter, Julgar 2022, 11, 16–17. For a different view, see Schack, Internationales Zivilverfahrensrecht mit internationalem Insolvenzrecht und Schiedsverfahrensrech (8th. ed., 2021), note 457. 51 Cf. Neli Valcheva v. Georgios Babanarakis (Case C-335/17) ECLI:EU:C:2018:359, note 20. 52 Cf. Neli Valcheva v. Georgios Babanarakis (Case C-335/17) ECLI:EU:C:2018:359, nos. 33–34 e 37. 53 Cf. Marie Matousˇková (Case C-404/14) ECLI:EU:C:2015:653, note 38. 54 Cf. Alegría Borrás, Report (1998), no. 60; Mayr, Europäisches Zivilprozessrecht (2nd ed., 2020), IV no. 110; Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.98; and Gomes de Almeida, Âmbito de aplicação, definições e relações com outros atos do Regulamento Bruxelas II ter, Julgar 2022, 11, 20. 55 See C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU), ECLI:EU:C:2018:733, para. 60. 56 C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU), ECLI:EU:C:2018:733, para. 53.

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Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 dent being summoned to appear, unless the decision containing the measure is served on the respondent prior to enforcement (Art. 2(1)§ 3 Brussels IIter). This should not preclude the recognition and enforcement of such measures under national law of the Member States (Recital 59).57 37

Other provisional measures taken under Art. 15 Brussels IIter in urgent cases by a court without jurisdiction as to the substance of the matter are not recognisable and enforceable under the Regulation (Recitals 30 and 59). This is in line with the ECJ case law regarding Brussels IIbis Regulation.58 Although Recital 59 does not mention the recognition and enforcement of these other measures under national law, this possibility should be admitted, in line with the same case law.59

38

Chapter IV also applies to the enforcement of any order concerning costs and expenses of proceedings under the Regulation (Art. 73 Brussels IIter). 3. Spatial scope

39

The Regulation applies to the recognition and enforcement of decisions rendered by authorities of other Member States, with exception of Denmark, that in accordance with Arts. 1 and 2 of Protocol No. 22 on the position of Denmark, annexed to the TEU and to the TFEU, has not taken part in the adoption of this Regulation and is not bound by it or subject to its application (Recital 96) (see further Introduction 30–37 notes 57 et seq. [de Lima Pinheiro]). Other international instruments or the domestic law apply to the recognition and enforcement of decisions taken by Danish authorities.

40

In relation to the United Kingdom, the provisions of the Brussels IIbis Regulation regarding recognition and enforcement remain applicable to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period (Art. 67(2)(b) of the Withdrawal Agreement concluded between the European Union and the United Kingdom). The transition period ended on 31 December 2020 (Art. 126 of the Withdrawal Agreement). Other international instruments or the domestic law apply to the recognition and enforcement of judgments of United Kingdom authorities given in legal proceedings instituted after the end of the transition period. 4. Temporal scope

41

The Brussels IIter Regulation repealed the Brussels IIbis Regulation with effect as from 1 August 2022 (Art. 104(1) Brussels IIter). After this date, the Brussels IIbis Regulation will continue to apply to decisions given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements which have become enforceable in the Member State where they were concluded before 1 August 2022 and which fall within the scope of that Regulation (Arts. 100(2) and 104(1) Brussels IIter). Therefore, for a considerable period, the Brussels IIbis Regulation will continue to apply to the recognition and enforcement of decisions on matrimonial and parental responsibility matters. The Brussels IIter Regulation will apply only to the recognition and enforcement of decisions given in legal proceedings instituted as from 1 August 2022.

III. Relationship with domestic rules on recognition and enforcement 42

The Regulation prevails over the domestic regimes of recognition and enforcement of the Member States (Art. 288(2) of the TFUE and reception provisions of the Member States’ Constitutions). This does not exclude per se the application of the domestic regimes where more favourable to recognition or enforcement. The prevailing view regarding Brussels IIbis Regulation is, however, against the admissibility of resort to the more favourable domestic law of the Member State of recognition and en-

57 This must apply both to ex parte provisional measures taken by the court with jurisdiction as to the substance of the matter and ordered under Art. 26(5). For this view, see Pretelli, Yb. PIL 20 (2018/2019), 113, 145. 58 Cf. Alegría Borrás, Report (1998), note 59; Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), ECLI: EU:C:2010:665, para. 84 and 92. Compare Corneloup/Teixeira de Sousa, Art. 22 note 10. 59 Cf. Bianca Purrucker v. Guillermo Vallés Pérez (Case C-296/10), ECLI:EU:C:2010:665, para. 92.

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forcement.60 As abovementioned, this is, however, admitted regarding those provisional measures that do not benefit of the recognition and enforcement system of the Regulation and the recognition and enforcement of provisional measures under domestic law shall also be allowed under Brussels IIter Regulation, as it is up to a certain extent stated in Recital 59. More generally, Recital 67 seems to point towards the application of the most favourable regime regarding the enforcement of all decisions within the scope of the Regulation: “the suspension or refusal of enforcement in the Member State of enforcement should be upon application and, even where one or more of the grounds contained in or permitted by this Regulation are found to exist, the suspension or refusal of enforcement in the Member State of enforcement should be left to the discretion of the authority competent for enforcement or the court”. It is difficult to understand that the most favourable regime does no apply also to the recognition. In any case, an ECJ clarification on this point will be welcome.

IV. Legislative history of Subsections 1–3 Subsections 1–3 of Section 1 of Chapter IV comprise Arts. 30 to 37. Their statutory precedents can 43 be found in Brussels IIbis Regulation and to a certain extent in Brussels II Regulation. Art. 30 Brussels IIter contains general rules on recognition. It has its statutory precedents in Art. 14 44 of Brussels II Regulation and in Art. 21 of Brussels IIbis Regulation. Art. 30(1) Brussels IIter corresponds to Art. 14(1) of Brussels II Regulation and to Art. 21(1) of Brussels IIbis Regulation with the only replacement of “judgment” by “decision”, which is coordinated with the definition of “decision” contained in Art. 2(1) Brussels IIter including, for the purposes of Chapter IV, a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention and provisional, including protective, measures ordered by a court which by virtue of this Regulation has jurisdiction as to the substance of the matter or measures ordered in accordance with Art. 27(5) in conjunction with Art. 15 Brussels IIter. Art. 30(2) Brussels IIter corresponds to Art. 14(2) of Brussels II Regulation and to Art. 21(2) of Brussels IIbis Regulation with the same replacement of “judgment” by “decision”. Art. 30(3) Brussels IIter corresponds up to a certain point to Art. 14(3) of Brussels II Regulation and to Art. 21(3)§ 1 of Brussels IIbis Regulation. Art. 14(3) of Brussels II Regulation refers, regarding the declaratory proceedings of recognition or non-recognition, to the procedure for declaration of enforceability. Art. 21(3) of Brussels IIbis Regulation starts by reserving the rules on enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child because they do not allow a declaration of non-recognition and also refers to the procedure for declaration of enforceability. Art. 30(3) Brussels IIter deals only with the declaratory proceedings of recognition. The declaratory proceedings of non-recognition are dealt in Art. 40 Brussels IIter. On the other hand, the declaratory proceedings of recognition are now directed towards a decision that are no grounds for refusal of recognition, emphasizing that the recognition does not depend on a special procedure. For this purpose, and since the declaration of enforceability was abolished, reference is now made to the procedure for refusal of enforcement.

45

Art. 30(4) Brussels IIter corresponds to § 2 of Art. 21(3) of Brussels IIbis Regulation, referring now 46 only to declaratory proceedings of recognition (local jurisdiction regarding declaratory proceedings of non-recognition is now dealt in Art. 40(2) Brussels IIter). Besides the updating of the provisions numbers concerning the information to be communicated to the Commission regarding the competent local jurisdiction, the word “internal” is omitted regarding the applicable law of the Member State in which the proceedings are brought, change which seems to be purely formal. Art. 30(5) Brussels IIter does not contain any substantial change in relation to Art. 14(4) of Brussels II Regulation and Art. 21(4) of Brussels IIbis Regulation.

60 See Martiny in FS Reinhold Geimer (2017), p. 451, 460; Rauscher/Rauscher, Einl note 16 and Art. 21 note 11, although on the assumption that the question of resort to the more favourable domestic regime does not arise, because the Regulation’s regime is, in general, more favourable. See further Schack, Internationales Zivilverfahrensrecht mit internationalem Insolvenzrecht und Schiedsverfahrensrecht (8th. ed., 2021), note 959.

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Intro to Arts. 30–37 Brussels IIter Introduction to Articles 30–37 47

Art. 31 Brussels IIter specifies the documents to be produced for recognition. Art. 31(1) Brussels IIter corresponds to Art. 32(1) of Brussels II Regulation and to Art. 37(1) of Brussels IIbis Regulation. The provisions of Brussels II and IIbis Regulations are identical, with the update of the provision number concerning the certificate. Art. 31(1) Brussels IIter not only updates the provision number concerning the certificate but also give a new formulation to the heading of the provision required by the abolition of the declaration of enforceability. A new provision (Art. 35 Brussels IIter) was introduced regarding the documents to be produced for enforcement and, therefore, Art. 31 Brussels IIter deals only with recognition. Furthermore, the expression “the certificate referred to” is replaced by the expression “the appropriate certificate issued pursuant to”, clarifying that the certificate has to be issued according to Art. 36 and the annexes thereby referred.

48

Art. 31(2)and(3) Brussels IIter add that the court or competent authority before which a decision given in another Member State is invoked may, in certain circumstances require the party invoking it to provide a translation or transliteration of the free text fields of the certificate and of the decision. Art. 34(2) of Brussels II Regulation and Art. 38(2) of Brussels IIbis Regulation provide that the court can require a translation of the documents, but since these Articles concern the absence of documents, the doubt could arise if the documents at stake are only the equivalent documents that replace the absent documents or also the copy of the decision and of the free text fields of the certificate, as it is the best understanding.61

49

Art. 32 Brussels IIter deals with the absence of the documents required for recognition. Art. 32(1) is essentially identical to Art. 34(1) of Brussels II Regulation and to Art. 38(1) of Brussels IIbis Regulation. It adds “or competent authority” after “the court” to clarify that also non-jurisdictional authorities dealing with the recognition and/or enforcement, such as civil registries, are included, although the same seems to result already from the definition of “court” provided in Art. 2(2)(1) Brussels IIter. There are two other important differences. First, while the provisions of Brussels II and IIbis Regulation do not apply to the copy of the decision, Art. 32 Brussels IIter covers, in principle, all the documents required by art. 31. Second, since Art. 32 Brussels IIter concerns only the absence of the documents required by Art. 31 Brussels IIter, it is not applicable to the absence of documents required for enforcement according to Art. 35 Brussels IIter. Art. 32(2) Brussels IIter corresponds to Art. 34(2) of Brussels II Regulation and to Art. 38(2) of Brussels IIbis Regulation, but with two changes: now it addresses only the translation or transliteration of the equivalent documents, since the translation or transliteration of the required documents is already addressed in Art. 31(2) and (3) Brussels IIter, as remarked above, and refer to Art. 91 Brussels IIter regarding the rules applicable to the translation or transliteration.

50

Art. 33 Brussels IIter concerns the stay of proceedings in the court before which a decision is invoked. Art. 33(a) Brussels IIter corresponds to Art. 20(1) of Brussels II Regulation and to Art. 27(1) of Brussels IIbis Regulation. These two last provisions have the same wording. Art. 33 Brussels IIter no longer refer to cases in which recognition is sought, but to all cases in which a decision given in another Member State is invoked, notwithstanding Art. 44 Brussels IIter on stay of proceedings concerning recognition of privileged decisions, Art. 56 Brussels IIter dealing with suspension of enforcement, and Art. 63 Brussels IIter dealing with stay of proceedings of the authority competent for enforcement or the court to which an application for refusal of enforcement is submitted or which hears an appeal lodged on decision on the application for refusal of recognition. Furthermore, it clarifies that the proceedings may be stayed in whole or in part and that the ordinary appeal at stake is the ordinary appeal lodged in the Member State of origin. Art. 33(b) Brussels IIter adds a further ground on which a stay may be ordered: where an application has been submitted for a decision that there are no grounds for refusal of recognition or for a decision that the recognition is to be refused based on one of these grounds, which is inspired by Art. 38(b) of Brussels Ibis Regulation.

51

Art. 20(2) of Brussels II Regulation and Art. 27(2) of Brussels IIbis Regulation, dealing with judgments given in Ireland or the United Kingdom, and having in mind that in those States there is no distinction between ordinary and extraordinary appeals, is not replicated in Art. 33 Brussels IIter. This suppression was understandable in the Proposal, because Art. 29(a) referred to all cases in which the decision “is challenged in the Member State of origin”. Art. 33(a) Brussels IIter, however, refers to 61 See Rauscher/Rauscher, Art. 38 note 8, and Magnus/Mankowski/Magnus, Art. 38 note 23.

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the lodging of an ordinary appeal. The problem no longer arises regarding the United Kingdom, but remains regarding Ireland. The solution is provided by Art. 72 Brussels IIter, laying down that where a decision was given in Ireland or Cyprus any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of Chapter IV. Art. 34 Brussels IIter refers to the enforceable decisions. The statutory precedents of Art. 34(1) are 52 Art. 21 of Brussels II Regulation and Art. 28 of Brussels IIbis Regulation. These two last provisions are similar, only differing in that Art. 21 of Brussels II Regulation deals only with a child of both parties while Art. 28 of Brussels IIbis Regulation (as well as Art. 34 Brussels IIter) deals with any child. The main change brought by Art. 34(1) Brussels IIter is that it no mores requires a declaration of enforceability for enforcement of a decision given in a Member State in another Member State. Besides this change, the expression “judgment on the exercise of parental responsibility” has been replaced by the expression “decision in matters of parental responsibility”, clarifying that all parental responsibility matters not excluded from the scope of the Regulation are included. Furthermore, Art. 34(1) Brussels IIter only requires that the decision is enforceable in the Member State of origin. The provision does not require serving at the Member State of origin, but besides the ground for refusal of enforcement resulting from Arts. 39(1)(b) and 41 Brussels IIter, Art. 55(1) Brussels IIter requires the serving of the appropriate certificate and of the decision prior to the first enforcement measure. Art. 34(2) Brussels IIter corresponds to Art. 41(1)§ 2 of the Brussels IIbis Regulation, with a wording change that clarifies that the provision applies only to cross border enforcement of Member State decisions granting access rights.

53

Art. 35 Brussels IIter deals with the documents to be produced for enforcement. Regulation Brus- 54 sels IIbis contains two provisions regarding these documents: the general rule of Art. 37, concerning recognition and the declaration of enforceability, above mentioned, and Art. 45, regarding the enforcement of certain judgments concerning rights of access or requiring the return of the child. The statutory precedent of Art. 37 of Regulation Brussels IIbis is Art. 32 of Regulation Brussels II, above mentioned. Art. 45 of Regulation Brussels IIbis has no statutory precedent in Regulation Brussels II. Regarding the legislative history of Art. 35(1), (3) and (4) Brussels IIter, see above the remarks made with respect to Art. 31 Brussels IIter. Art. 35(2) Brussels IIter contains a new rule regarding the documents to be produced for the purposes of enforcement in a Member State of a decision given in another Member State ordering a provisional measure. Art. 36 Brussels IIter regards the issuance of the certificate. Its statutory precedents are Art. 33 of 55 Brussels II Regulation and Arts. 39 and 43(2) of Brussels IIbis Regulation. Art. 33 of Brussels II Regulation and Art. 39 of Brussels IIbis Regulation are substantially identical. Art. 36 Brussels IIter no longer refers to “court or authority” but only to “court” since the definition of court provided in Art. 2(2)(1) Brussels IIter already encompasses any authority with jurisdiction in the matters falling within the scope of the Regulation. On the other hand, the competent court has not to be determined by the law of the Member State of origin, but by the communication made by this State to the Commission pursuant to Art. 103 Brussels IIter.62 The expression “at the request of any interested party” is replaced by “upon application by a party”. This change may be related with the fact that according to Recital 54 the concept of “interested party” for the purpose of recognition or non-recognition is to be determined in the light of the domestic law of the forum Member State rather than autonomously. Art. 36(1) Brussels IIter adds to the certificates for decisions in matrimonial matters and in matters of parental responsibility the certificate for a decision ordering the return of a child as referred to in point (a) of Art. 2(1) Brussels IIter, and, where applicable, any provisional, including protective, measures ordered in accordance with Art. 27(5) Brussels IIter accompanying the decision.

56

Art. 36(2) Brussels IIter regulates the language of the certificate and (3) provides that no challenge 57 shall lie against the issuance of the certificate. The statutory precedent of Art. 36(3) is Art. 43(2) of the Brussels IIbis Regulation contained in the section on enforceability of certain judgments concern62 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast.

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Art. 30 Brussels IIter Recognition of a decision ing rights of access or which require the return of the child. According to this provision, no appeal shall lie against the issuing of a certificate pursuant to Arts. 41(1) or 42(1). Art. 36(3) Brussels IIter generalizes the solution to all certificates covered by Art. 36(1) Brussels IIter and replaces “appeal” by “challenge” making clear that no remedy is available against the issuance of the certificate. 58

Art. 37 Brussels IIter deals with the rectification of the certificate. Its statutory precedent is Art. 43(1) of the Brussels IIbis Regulation, contained in the section on enforceability of certain judgments concerning rights of access or which require the return of the child. This provision prescribes only that the law of the Member State of origin shall be applicable to any rectification of the certificate. The new Art. 37 Brussels IIter, while maintaining the applicability of the law of the Member State origin to the procedure of rectification, provides an autonomous basis for the rectification procedure where, due to a material error or omission, there is a discrepancy between the decision to be enforced and the certificate. Furthermore, it specifies that the rectification can take place either upon application or at the court’s own motion.

Subsection 1 Recognition (Art. 30–Art. 33)

Article 30 Recognition of a decision 1. A decision 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 decision 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. Any interested party may, in accordance with the procedures provided for in Articles 59 to 62 and, where appropriate, Section 5 of this Chapter and Chapter VI, apply for a decision that there are no grounds for refusal of recognition referred to in Articles 38 and 39. 4. The local jurisdiction of the court communicated by each Member State to the Commission pursuant to Article 103 shall be determined by the law of the Member State in which proceedings in accordance with paragraph 3 of this Article are brought. 5. Where the recognition of a decision is raised as an incidental question before a court of a Member State, that court may determine that issue. I. Recognition without special procedure . . . . II. Declaratory proceedings of recognition and non-recognition . . . . . . . . . . . . . . . . . .

1

III. Incidental recognition or non-recognition . .

9

IV. Partial recognition . . . . . . . . . . . . . . . . 11 5

I. Recognition without special procedure 1

Art. 30(1) Brussels IIter lays down the principle of recognition by operation of law of the decisions given in another Member-State. The special procedure required for the recognition by the domestic regime of some Member States does not apply to decisions given in another Member State. In any case, the decision given in another Member State is not equivalent to a decision given in the Member State of recognition because recognition can be refused based upon one of the grounds provided in Arts. 38 and 39 Brussels IIter. On the other hand, the recognition by operation of law does not exclude facultative declaratory proceedings of recognition and non-recognition, as well as the need for an incidental decision on recognition where the decision is invoked in other proceedings.

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Art. 30 Brussels IIter

The general purpose of this system of recognition was referred above (Introductory remarks to Arts. 30–37 notes 1–4). The same may be said of general aspects of recognition, scope of Chapter IV and relationship with domestic rules on recognition (Introductory remarks to Arts. 30–37 notes 14 et seq., 21 et seq., and 42 et seq.). The recognition by operation of law implies that, as far as there are no grounds for refusal of recognition,1 the decision produces in principle, in the State of recognition, the same effects that it has in the State of origin. For example, the spouse divorced in a Member State can marry in another Member State, as far as there are no grounds for refusal of recognition of the divorce judgment, without the necessity of a special procedure for its recognition.

2

According to Art. 30(2) Brussels IIter, the recognition by operation of law applies in particular to the 3 updating the civil-status records of a Member State on the basis of a decision 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.2 Therefore, if the divorce, separation or marriage annulment was granted in a Member State and has to be registered in the civil-status records of another Member State, no special procedure is required for this purpose.3 The question whether the control of the grounds for refusal of recognition can be made ex officio by 4 the registrar, seems to depend on the law of the Member State of register (see above Introduction 30–37 note 36).4 The possible control of the grounds for refusal of recognition shall be made incidentally and does not require the application for a declaratory proceeding of non-recognition under Art. 40 Brussels IIter.5 For the updating of civil-status records the applicant has to produce the documents referred in Art. 31 Brussels IIter.6 The appeal mentioned in Art. 30(2) Brussels IIter is an ordinary appeal, without prejudice to Art. 72 Brussels IIter regarding Ireland and Cyprus.7 For the relevant concept of ordinary appeal shall be taken into consideration the understanding adopted regarding Arts. 38 and 51 of Brussels Ibis Regulation. According to the position adopted by the ECJ regarding the 1968 Brussels Convention, the expression “ordinary appeal” must be determined through an autonomous interpretation, within the framework of the conventional system, and not in accordance with the law of the Contracting States.8 “Ordinary appeal” is understood as “any appeal which forms part of the normal course of an action and which, as such, constitutes a procedural development which any party must reasonable expect”.9 Thus, it is an ordinary appeal lodged or likely to be lodged against a foreign decision “ any appeal which is such that it may result in the annulment or the amendment of the judgment which is the subject-matter of the procedure for recognition or enforcement according to the Convention and the lodging of which is bound, in the State in which the judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment”.10

1 For views which seem to be partially different, Corneloup/Corneloup, Art. 21 note 50; Magnus/Mankwoski/ Siehr, Art. 21 note 8; Calvo Caravaca/Carrascosa González in Calvo Caravaca/Carrascosa González (eds.), European Private International Law (2022), ps. 149–150; Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 101; and Oliveira Magalhães, O regime comum de reconhecimento e execução de decisões estrangeiras em matéria de responsabilidade parental na revisão do Regulamento Bruxelas II bis, Julgar 2022, 123, 127–128. 2 See further, on possible problems of substitution, Rauscher/Rauscher, Art. 21 note 29. 3 Cf. Alegría Borrás, Report (1998), note 63. 4 For the control of the grounds for refusal of recognition by the recording authority, see Calvo Caravaca/Carrascoza González, Tratado de Derecho Internacional Privado (2020), XII.VIII.1.B.b. 5 See Rauscher/Rauscher, Art. 21 notes 25–26. For a different view, regarding Brussels II Regulation, Teixeira de Sousa, Direito Processual Civil Europeu (unpublished report) (2003), p. 217, and regarding Bruxelas IIbis Regulation, Castro Mendes/Teixeira de Sousa, Manual de Processo Civil, vol. II (2022), p. 365. 6 Cf. Alegría Borrás, Report (1998), notes 63 and 105 (albeit this second note concerns a different wording of the provision); Magnus/Mankowski/Magnus, Art. 37 note 10; Rauscher/Rauscher, Art. 21 note 25 and Art. 37 notes 3 and 9; and Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 562 et seq. 7 Cf. Alegría Borrás, Report (1998), note 63. 8 Industrial Diamond Supplies v. Luigi Riva (Case 43/77), ECLI:EU:C:1977:188, para. 28. 9 Industrial Diamond Supplies v. Luigi Riva (Case 43/77), ECLI:EU:C:1977:188, para. 37. 10 Industrial Diamond Supplies v. Luigi Riva (Case 43/77), ECLI:EU:C:1977:188, para. 42. See the doubts of Rauscher/Rauscher, Art. 27 note 4, regarding the requirement that the lodging of the appeal is time limited.

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Art. 30 Brussels IIter Recognition of a decision

II. Declaratory proceedings of recognition and non-recognition 5

The recognisability of a decision can be controversial in relationships with public authorities or other private persons. Even if there is an incidental recognition or non-recognition, this incidental decision may not become binding as res iudicata for everybody.11 Therefore, a private person or public authority may be interested in an application for a declaration for a separate and final decision on recognition or non-recognition. According to the best view, this decision should be binding for everybody as res iudicata.12

6

While Art. 21(3) of the Brussels IIbis Regulation refers to proceedings for declaration of recognition or non-recognition, Art. 30(3) Brussels IIter covers only an application for a “decision that there are no grounds for refusal of recognition”. The application for refusal of recognition is now dealt by Art. 40(1) Brussels IIter. The new wording emphasises that the recognition does not depend on any special procedure.13

7

Any interested party may apply for a decision that there are no grounds for refusal of recognition or for refusal of recognition. Under Brussels IIbis Regulation it is normally understood that the concept of “interested party” should be construed liberally, comprising not only the parties to the proceedings that took place in the State of origin but also any other private person or public authority with a legitimate interest.14 The same understanding is advocated regarding Brussels IIter Regulation.15 However it should be borne in mind that according to Recital 54 the concept of “interested party” is to be determined in the light of the domestic law of the forum Member State rather than autonomously.16 This does not seem to be the best solution.

8

According to Art. 21(3) of Brussels IIbis Regulation, the declaratory proceedings are governed by the procedure laid down for the declaration of enforceability. Since the declaration of enforceability was abolished, reference is now made to the procedure for refusal of enforcement (Arts. 30(3) and 40(1) Brussels IIter). The court competent for the declaratory proceedings is communicated by each Member State to the Commission pursuant to Art. 103 and its local jurisdiction shall be determined by the law of the Member State in which the proceedings are brought (Arts. 30(4) and 40(2) Brussels IIter).17 In virtue of Art. 33(a) Brussels IIter, the court may stay its proceedings, in whole or in part, where an ordinary appeal against that decision has been lodged in the Member State of origin. On the other hand, according to Art. 33(b) Brussels IIter, other court before which a decision given in another Member State is invoked, may stay its proceedings, in whole or in part, where an application has been submitted for a decision that there are no grounds for refusal of recognition or for a decision that the recognition is to be refused on the basis of one of those grounds.

III. Incidental recognition or non-recognition 9

In most cases, the recognition of a decision is raised as an incidental question, namely as a res iudicata exception or in the decision of a preliminary issue in another proceedings. For example, the defen11 As remarked by Magnus/Mankowski/Siehr, Art. 21 note 11. 12 See Rauscher/Rauscher, Art. 21 note 33, and Magnus/Mankowski/Siehr, Art. 21 note 11. For a different view, Thomas/Putzo/Hüßtege, Art. 21 note 7. For the erga omnes effect even of the incidental decision, Corneloup/ Chalas, Art. 21 note 86. See further Geimer/Schütze/Geimer, Art. 21 notes 41–42. 13 See Schulz in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Standards und Abgrenzungen im Internationalen Familienrecht (2020), p. 93, 98–99; see also Erb-Klünemann/Niethammer-Jürgens, Familien Rechtsberater (2019), 454, 456. 14 See, Thomas/Putzo/Hüßtege, Art. 21 note 7; Staudinger/Spellenberg, Art. 21 note 97; and Magnus/Mankowski/Siehr, Art. 21 note 13. 15 See Hess, Europäisches Zivilprozessrecht (2nd ed., 2021), note 7.102. See further Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 105. 16 In this sense, regarding Brussels IIbis Regulation, Corneloup/Chalas, Art. 21 note 68. 17 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast.

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dant invokes a foreign divorce judgment to contest a main action for marriage annulment based on a previous undissolved marriage. In these cases, for reasons of simplicity,18 it is competent for the recognition or non-recognition the court in which the proceedings were brought (Art. 30(5) Brussels IIter). The term “court” shall be understood here in the wide sense defined in Art. 2(2)(1) Brussels IIter.19 Since no reference is made to the procedure for refusal of enforcement, it shall be understood that the decision of the issue follows the rules of the ongoing proceedings, which are the general rules of domestic procedural law, if no special rules have been introduced for this purpose.20 The res iudicata effects of an incidental recognition or non-recognition depend on the domestic law of the recognition State.21 By virtue of Art. 33 Brussels IIter, the court before which a decision given in another Member State is invoked incidentally may stay its proceedings, in whole or in part, where an ordinary appeal against that decision has been lodged in the Member State of origin or an application has been submitted for a decision that there are no grounds for refusal of recognition or for a decision that the recognition is to be refused on the basis of one of those grounds.

10

IV. Partial recognition Art. 53 Brussels IIter allows the partial enforcement of a decision upon application of the party seeking the enforcement or where the enforcement has been refused only in relation to some of the matters of the decision. There is no parallel provision regarding recognition. A partial recognition is hardly conceivable in the dissolution of matrimonial ties, but it is possible in parental responsibility matters. The partial recognition of a separable part of a decision should be admitted where only another part is affected by the grounds for refusal of recognition.

Article 31 Documents to be produced for recognition 1. A party who wishes to invoke in a Member State a decision given in another Member State shall produce the following: (a) a copy of the decision which satisfies the conditions necessary to establish its authenticity; and (b) the appropriate certificate issued pursuant to Article 36. 2. The court or competent authority before which a decision given in another Member State is invoked may, where necessary, require the party invoking it to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the certificate referred to in point (b) of paragraph 1 of this Article. 3. The court or competent authority before which a decision given in another Member State is invoked may require the party to provide a translation or transliteration, in accordance with Article 91, of the decision in addition to a translation or transliteration of the translatable content of the free text fields of the certificate if it is unable to proceed without such a translation or transliteration.

18 See Alegría Borrás, Report (1998), note 66. 19 - See also Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 102. 20 See also Corneloup/Chalas, Art. 21 note 85, and Gomes de Almeida, O Divórcio em Direito Internacional Privado (2017), p. 507–508, and Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 102. 21 See also Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 103.

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11

Art. 31 Brussels IIter Documents to be produced for recognition I. Purpose and scope . . . . . . . . . . . . . . . . II. Documents required . . . . . . . . . . . . . . .

1 4

III. Translation or transliteration . . . . . . . . . . 7 IV. Time for production of documents . . . . . . 11

I. Purpose and scope 1

The requirement of production of the copy of the decision and of the certificate aims at the easy and safe proof of the existence and contents of the decision.1 The provision determines autonomously the documents that a party invoking a decision must produce.2 Notwithstanding, Art. 32(1) Brussels IIter provides that the court may accept equivalent documents or, if it considers that it has sufficient information before it, dispense with its production. Neither further documents nor other proof can be required.3

2

The provision covers any kind of decision within the scope of Chapter IV, with exception of privileged decisions defined in Art. 42(1) Brussels IIter, which are covered by the parallel provision of Art. 43(2) Brussels IIter, contained in Section 2. However, as already remarked, Section 2 does not prevent a party from seeking recognition and enforcement of privileged decisions in accordance with the provisions on recognition and enforcement laid down in Section 1 (Art. 42(2) Brussels IIter).

3

Regarding to the procedures covered, Art. 37(1) of Brussels IIbis Regulation refers to a party seeking or contesting recognition or applying for a declaration of enforceability. Since the requirement of a declaration of enforceability was abolished, Art. 31(1) Brussels IIter now refers to the procedures in which the decision is invoked in general, including declaratory proceedings of recognition or non-recognition and proceedings in which the decision is incidentally invoked. The provision is also applicable to the updating of civil-status records (see above Art. 30 note 4 [de Lima Pinheiro]). The documents to be produced for enforcement are determined by Art. 35 Brussels IIter.

II. Documents required 4

The party invoking the decision must produce a copy of the decision, which satisfies the conditions necessary to establish its authenticity, and the appropriate certificate issued pursuant to Art. 36 Brussels IIter (Art. 31(1) Brussels IIter). Therefore, the burden to produce the documents lies on the party who institutes the declaratory proceedings of recognition or non-recognition, who invokes the decision incidentally in court proceedings, who seeks its entry into a civil-status record,4 or who invokes the decision before any other authority of the Member State of recognition. Neither the court of the State of origin nor the court of the recognition State are obliged to provide the documents ex officio.5

5

The Regulation only requires the production of a copy of the decision. The production of the original is naturally admissible, but it is not required. The copy shall satisfy the conditions necessary to establish its authenticity in accordance with the locus regit actum rule, i.e., the law of the State in which the decision was given.6 A mere copy without any kind of authentication is not enough.7 Besides that, no legalisation or other similar formality can be required (Art. 90 Brussels IIter).8 It would be preferable an autonomous definition of the requirements of authenticity since the enquire into the content of the State of origin’s law burdens the court or authority before which the decision is invoked.9

1 2 3 4 5 6

Cf. Magnus/Mankowski/Magnus, Art. 37 note 1. See also Rauscher/Rauscher, Art. 37 note 1; Magnus/Mankowski/Magnus, Art. 37 note 4. See also Magnus/Mankowski/Magnus, Art. 37 note 28. See also Rauscher/Rauscher, Art. 37 note 4. Compare Magnus/Mankowski/Magnus, Art. 37 note 11. Magnus/Mankowski/Magnus, Art. 37 note 11. Cf. Alegría Borrás, Report (1998), note 103. See also in relation to the 1968 Brussels Convention Jénard, Report (1979), p. 170. 7 Cf. Andrea in Nomos Kommentar BGB I, Art. 37 note 2; Thomas/Putzo/Hüßtege, Art. 37 note 2; Rauscher/ Rauscher, Art. 37 note 6; and Magnus/Mankowski/Magnus, Art. 37 note 13. 8 See also Magnus/Mankowski/Magnus, Art. 37 note 12. 9 See Magnus/Mankowski/Magnus, Art. 37 note 13.

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The party invoking the decision shall also produce the appropriate certificate issued pursuant to Art. 36 Brussels IIter. The replacement of the expression “the certificate referred to” contained in Art. 37(1) of Brussels IIbis Regulation by the expression “the appropriate certificate issued pursuant to”, clarifies that the certificate produced has to be issued according to Art. 36 Brussels IIter and the annexes thereby referred. No legalisation or other similar formality can be required (Art. 90).10

6

III. Translation or transliteration For the sake of simplification, the party invoking a decision may produce all required documents in 7 the language in which they were issued and the other party is not entitled to request the translation in the court’s language.11 However, the court or competent authority before which a decision given in another Member State is invoked may, in certain circumstances, require the party invoking it to provide a translation or transliteration of the free text fields of the certificate and of the decision. According to Art. 31(2) Brussels IIter, the court or authority before which a decision given in another 8 Member State is invoked may, where necessary, require the party invoking it to provide a translation or transliteration, in accordance with Art. 91 Brussels IIter, of the translatable content of the free text fields of the certificate. Although the certificate shall be issued and completed in the language of the decision (Art. 36(2) Brussels IIter), the standardised fields do not require translation or transliteration to be understood by the court or authority of recognition. According to Art. 31(3) Brussels IIter, the court or authority before which a decision given in another Member State is invoked may also require the party to provide a translation or transliteration, in accordance with Art. 91 Brussels IIter, of the decision if it is unable to proceed without such a translation or transliteration. The court has a wide discretion regarding the request of translation or transliteration. In case of doubt, a translation or transliteration shall be required.12 The translation or transliteration of the decision is subsidiary to the translation or transliteration of the free text fields of the certificate, but it would be excessive to consider that it is only permitted on an exceptional basis.13 While translation means the change from one language into another, a transliteration means the re- 9 presentation of letters or words of one alphabet in the corresponding characters of another alphabet. This translation or transliteration shall be into the official language of the Member State concerned or, where there are several official languages in that Member State, into the official language or one of the official languages of court proceedings of the place where a decision given in another Member State is invoked, in accordance with the law of that Member State (Art. 91(1) Brussels IIter). The translations or transliterations of the translatable content of the free text fields of the certificates may be into any other official language or languages of the institutions of the European Union that the Member State concerned has communicated in accordance with Art. 103 Brussels IIter it can accept (Art. 91(2) Brussels IIter).14 Any translation shall be done by a person qualified to do translations in one of the Member States (Art. 91(4) Brussels IIter) (infra Art. 91 note 5). Art. 31(2) and (3) Brussels IIter apply accordingly to the recognition of privileged decisions (Art. 43(3) Brussels IIter).

10 See also Magnus/Mankowski/Magnus, Art. 37 note 17. 11 See Alegría Borrás, Report (1998), note 108; Rauscher/Rauscher, Art. 38 note 9; Corneloup/Devers, Art. 38 note 2; and Magnus/Mankowski/Magnus, Art. 38 note 23. 12 Cf. Magnus/Mankowski/Magnus, Art. 38 note 23. See further Rauscher/Rauscher, Art. 38 note 9. 13 For a different view, Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 107. 14 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast.

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Art. 32 Brussels IIter Absence of documents

IV. Time for production of documents 11

The Regulation does no set a time limit for the production of the required documents. Thus, the time limit for the production the required documents depends on the domestic law of the recognition Member State. Nevertheless, by virtue of Art. 32(1) Brussels IIter, if the documents required are not produced in due time, the court or competent authority may specify a time limit for its production.

Article 32 Absence of documents 1. If the documents specified in Article 31(1) are not produced, the court or competent authority may specify a time for its production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with its production. 2. If the court or competent authority so requires, a translation or transliteration, in accordance with Article 91, of such equivalent documents shall be produced. I. Content and purpose . . . . . . . . . . . . . . .

1

III. Translation or transliteration . . . . . . . . . . 11

II. Absence of documents . . . . . . . . . . . . . .

5

IV. Application to non-jurisdictional authorities . 12

I. Content and purpose 1

The purpose of Art. 32 Brussels IIter is to facilitate the production of documents, allowing the court to specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.1 If the required documents are lacking, the interested party should be given a chance to satisfy the court that the requirements for recognition are nonetheless met.2

2

The provision concerns only the absence of the documents required by Art. 31 Brussels IIter and, therefore, it is not applicable to the absence of documents required for enforcement according to Art. 35 Brussels IIter. While Art. 34 of Brussels II Regulation and Art. 38 of Brussels IIbis Regulation were applicable to the absence of documents required for the declaration of enforceability, there is no parallel provision in the Brussels IIter Regulation. This can be explained by the fact that decisions given in other Member States are now enforceable by operation of law (Art. 34 Brussels IIter) and that enforcement requires the service of certificate and decision (Art. 55 Brussels IIter) (see further infra Art. 35 note 3).

3

Art. 32 Brussels IIter contains a uniform rule of procedure that prevails over any conflicting rule of domestic law.3 This rule provides for the discretion of the court or competent authority before which the decision is invoked in the case of non-production of the required documents.4 Besides the reactions mentioned in Art. 32(1) Brussels IIter, there is also a fourth option: the non-recognition of the decision.5 This reaction is in particular appropriate where the documents were not produced in the time limit set and neither equivalent documents nor other sufficient evidence were provided.6

4

The discretion of the court or competent authority must be exercised in the light of the general purpose of facilitating the recognition of decisions given in another Member States and of procedural 1 2 3 4 5

Cf. Alegría Borrás, Report (1998), note 107. Cf. Magnus/Mankowski/Magnus, Art. 38 note 1. Cf. Magnus/Mankowski/Magnus, Art. 38 note 2. Cf. Andrea in Nomos BGB Kommentar I, Art. 38 note 1; Magnus/Mankowski/Magnus, Art. 38 note 12. This option is referred in the Alegría Borrás, Report (1998), note 107, regarding the dismissal of the application for a declaration of enforceability, which is no more within the scope of this provision. See also Corneloup/Devers, Art. 38 note 1, and Magnus/Mankowski/Magnus, Art. 38 note 11. 6 See also Magnus/Mankowski/Magnus, Art. 38 note 22.

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fairness towards the interested parties and, therefore, the non-recognition without giving the interested party an opportunity to provide lacking documents will be justified only in the cases in which is clear from the outset that no recognition can be granted.7 Normally, it will be appropriate, in first place, to set a time limit for the production of the lacking documents. The time set for the production of the documents shall be reasonable and generous.8 The time period granted can be extended at the interested party’s request independently of the forum domestic law.9 The set of a time limit for the documents production only will not be appropriate where the court or competent authority has the conviction that the documents can not be produced.10

II. Absence of documents Differently from Art. 38 of Brussels IIbis Regulation,11 Art. 32 Brussels IIter applies, in principle, not only to the production of the certificate, but also to the production of the copy of the decision. However, it seems that a copy of the decision should always be required for recognition, and that, therefore, its inclusion within the scope of Art. 32 Brussels IIter envisages, mainly, the setting of a time limit for its production, as it is already admitted under Art. 38 of Brussels IIbis Regulation.12 In fact, the interested party can always request an authenticated copy of the decision in the Member State of origin.13 However, it is not to be excluded that in particular circumstances the authentication of the decision copy could be replaced by other means of evidence confirming its existence and contents.

5

On the contrary, the certificate is not indispensable and can be replaced by or be supplemented by other documents or by other evidence.14

6

This is conceivable, in first place, where the documents cannot be produced by the interested party, because they have been destroyed or lost or unavailable,15 but the provision is not restricted to these cases. It applies even if the interested party is unwilling to produce the required documents, although the court may take this attitude into consideration when choosing the most appropriate reaction to the non-production of the documents.16

7

Art. 32 Brussels IIter also applies if the certificate is produced but not in conformity with Art. 36 Brussels IIter, namely where the forms set out in Annexes II, III and IV are not duly filled out. In this case, the interested party may, and must generally be requested to apply for a rectification under Art. 37 Brussels IIter. However, it cannot be excluded that in some particular circumstances should be admitted the proof of the lacking facts by other means.17

8

If the documents required are not produced in the time set, or if the setting of a time limit is not ap- 9 propriate, the court or competent authority may accept equivalent documents. These are public or private documents, for example, messages, which provide reliable evidence of the facts that the required documents should establish. In principle, even if the original certificate has been lost or destroyed the 7 Cf. Magnus/Mankowski/Magnus, Art. 38 note 12. 8 Cf. Rauscher/Rauscher, Art. 38 note 4; Magnus/Mankowski/Magnus, Art. 38 note 14. 9 See Magnus/Mankowski/Magnus, Art. 38 note 14. For the resort to forum domestic law, Andrea in Nomos BGB Kommentar I, Art. 38 note 2; Rauscher/Rauscher, Art. 38 note 4. 10 See Rauscher/Rauscher, Art. 38 note 3. 11 See Alegría Borrás, Report (1998), note 107; Corneloup/Devers, Art. 38 note 1, and Magnus/Mankowski/Magnus, Art. 38 notes 1, 5, 16, 17 and 19, with more references. 12 See Rauscher/Rauscher, Art. 38 note 2, and Magnus/Mankowski/Magnus, Art. 38 note 5, also with reference to Kropholler/von Hein, Art. 55 Brussels I Regulation note 1. Compare Gomes de Almeida, Reconhecimento de decisões, atos autênticos e acordos em matéria matrimonial no Regulamento Bruxelas II ter, Julgar 2022, 97, 108. 13 See Kropholler/von Hein, Art. 55 Brussels I Regulation note 1; and Magnus/Mankowski/Magnus, Art. 38 note 5. 14 Cf. Spellenberg in Staudinger, Art. 38 notes 1 and 3; Magnus/Mankowski/Magnus, Art. 38 note 6. 15 See Alegría Borrás, Report (1998), note 107. 16 See Magnus/Mankowski/Magnus, Art. 38 note 8. 17 See Magnus/Mankowski/Magnus, Art. 38 note 10, mentioning the example of the enforcement of an access order, which is no more within the scope of this provision.

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Art. 33 Brussels IIter Stay of proceedings interest party can get re-issue in due time, but it can not be excluded that in particular circumstances the acceptance of equivalent documents is justified.18 10

In the same cases, the court or competent authority may dispense with the production of the required documents if it considers that it has sufficient information before it. The dispense presupposes that the court or competent authority has already gathered sufficient information from other means of evidence. This information may be provided by the interested party, by the other party or by a third person or may stem from prior proceedings. The court or competent authority is not obliged to search for this evidence.19 The standard of conviction of the court or competent authority shall be understood autonomously, rather than with resort to domestic procedure law of the forum Member State, as a high degree of conviction: from the evidence before it the court or competent authority must infer that the relevant facts are not only probable but highly likely.20

III. Translation or transliteration 11

According to Art. 32(2) Brussels IIter, if the court or competent authority so requires, a translation or transliteration, in accordance with Art. 91 Brussels IIter, of such equivalent documents shall be produced. The remarks made regarding the translation and transliteration of the required documents apply accordingly to the translation and transliteration of the equivalent documents (Art. 31 notes 7–9), but bearing in mind that the equivalent documents are not necessarily public documents issued in the Member State of origin of the decision. The court or competent authority should always request a translation or transliteration of the equivalent documents if this is needed for an informed and responsible decision on recognition.21

IV. Application to non-jurisdictional authorities 12

Art. 32(1) Brussels IIter adds “or competent authority” after “the court” to clarify that also non-jurisdictional authorities dealing with the recognition, such as civil registrars, are covered, although the same seems to result already from the definition of “court” provided in Art. 2(2)(1) Brussels IIter. This was already admitted under the Brussels IIbis Regulation.22

Article 33 Stay of proceedings The court before which a decision given in another Member State is invoked may stay its proceedings, in whole or in part, where: (a) an ordinary appeal against that decision has been lodged in the Member State of origin; or (b) an application has been submitted for a decision that there are no grounds for refusal of recognition referred to in Articles 38 and 39 or for a decision that the recognition is to be refused on the basis of one of those grounds. 1

The purpose of the provision is the prevention of the recognition by a court of decisions that can be annulled or amended in the State of origin or regarding which declaratory proceedings of recognition or of non-recognition have been instituted and, thus, the reduction of the risk of contradictory decisions.1 This provision must be seen in conjunction with the provisions of the Regulation providing 18 19 20 21 22 1

See also Rauscher/Rauscher, Art. 38 notes 5–6; Magnus/Mankowski/Magnus, Art. 38 note 17. Cf. Magnus/Mankowski/Magnus, Art. 38 note 19. Cf. Magnus/Mankowski/Magnus, Art. 38 note 20. See also Magnus/Mankowski/Magnus, Art. 38 note 23. See Magnus/Mankowski/Magnus, Art. 38 note 25. See also Rauscher/Rauscher, Art. 27 note 1, and Magnus/Mankowski/McClean, Art. 27 note 1.

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Art. 33 Brussels IIter

that recognition does not require any special procedure,2 and that it operates, with exception of updating of civil records (Art. 30(2) Brussels IIter), even if the decision is not final in the Member State of origin, as far as it produce effects in its legal order.3 While Art. 20(1) of Brussels II Regulation and Art. 27(1) of Brussels IIbis Regulation refer to cases in 2 which recognition is sought, Art. 33 Brussels IIter refer in general to cases in which a decision given in another Member State is invoked. Notwithstanding, there are other provisions of the Regulation on the same or related issues regarding cases in which Art. 33 Brussels IIter does not apply: Art. 44 Brussels IIter on stay of proceedings concerning recognition of privileged decisions, Art. 56 Brussels IIter dealing with suspension of enforcement, and Art. 63 Brussels IIter dealing with stay of proceedings of the authority competent for enforcement or the court to which an application for refusal of enforcement is submitted or which hears an appeal lodged on decision on the application for refusal of recognition. Therefore, Art. 33 Brussels IIter applies where a non-privileged decision is invoked for recognition or non-recognition. Art. 33(a) Brussels IIter applies to declaratory proceedings of recognition or non-recognition, as well as to incidental proceedings of recognition or non-recognition,4 in this case with exception of up-dating of civil status records that presupposes a decision final in the Member State of origin. Art. 33(b) Brussels IIter applies to all incidental proceedings of recognition or non-recognition of non-privileged decisions. The court has the power to stay the proceedings but is not obliged to do it.5 An application of the interested party is admissible but not necessary.6 The proceedings may be stayed in whole or in part. In the exercise of its discretion, the court should balance the consequences of the delay resulting from the stay of proceedings with the risk of contradictory decisions. In matrimonial matters, the court should normally stay the proceedings. In parental responsibility matters, it has to decide, in the light of the best interests of the child, if it is better the stay the proceedings or the recognition with subsequent modification of the decision, as far as the courts of the Member State of recognition have jurisdiction to this effect.7 The pending of proceedings to modify the decision or for a new decision on the same matter of in the Member State having jurisdiction over the substance of the matter is not an admissible ground for the stay of proceedings, since Art. 29(c) of the Commission’s Proposal was not adopted in the Regulation.

3

According to Art. 33(a) Brussels IIter, the court may stay the proceedings if an ordinary appeal against that decision has been lodged in the Member State of origin. The power to stay the proceedings depends upon the appeal having actually been lodged; the fact that the time limit to lodge the appeal has not expired is not relevant for this purpose.8 ‘Member State of origin’ means the Member State in which the decision has been given (Art. 2(2)(4) Brussels IIter).

4

For the relevant concept of ordinary appeal see above Art. 30 note 4. Since some Member States do not draw a distinction between ordinary and extraordinary appeals, Art. 72 Brussels IIter provides that where a decision was given in Ireland or Cyprus any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of Chapter IV.

5

According to Art. 33(b) Brussels IIter, the proceedings may be stayed also where an application has been submitted for a decision that there are no grounds for refusal of recognition or for a decision that the recognition is to be refused on the basis of one of these grounds, which is inspired by Art. 38(b) of Brussels Ibis Regulation.

6

2 3 4 5

Cf. Alegría Borrás, Report (1998), note 79. See also Rauscher/Rauscher, Art. 27 note 1, and Geimer/Schütze/Geimer, Art. 27. See also Rauscher/Rauscher, Art. 27 note 2. Cf. Alegría Borrás, Report (1998), note 79; Thomas/Putzo/Hüßtege, Art. 27 note 2; Rauscher/Rauscher, Art. 27 note 6; Corneloup/Chalas, Art. 27 note 10; and Magnus/Mankowski/McClean, Art. 27 notes 1 and 8. 6 Cf. Thomas/Putzo/Hüßtege, Art. 27 note 2; Rauscher/Rauscher, Art. 27 note 6; Corneloup/Chalas, Art. 27 note 9; and Magnus/Mankowski/McClean, Art. 27 note 5. 7 Cf. Rauscher/Rauscher, Art. 27 note 6. See further Corneloup/Chalas, Art. 27 note 12. 8 Cf. Corneloup/Chalas, Art. 27 note 3; Andrae in Nomos Kommentar BGB I, Art. 27 note 2; and Magnus/Mankowski/McClean, Art. 27 note 3.

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Art. 34 Brussels IIter Enforceable decisions

Subsection 2 Enforceability and enforcement (Art. 34–Art. 35)

Article 34 Enforceable decisions 1. A decision in matters of parental responsibility given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required. 2. 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. 1

The main change brought by Art. 34(1) Brussels IIter in relation to Brussels IIbis Regulation is that it no mores requires a declaration of enforceability for enforcement of a decision given in a Member State in another Member State. As a result, the Regulation aligns its system of recognition with the Brussels Ibis Regulation.1 In parallel with this Regulation, the decision given in another Member State and which is enforceable in that Member State is enforceable by operation of law. The party seeking enforcement can apply directly for enforcement (Arts. 34, 51 and 52 Brussels IIter). The rights of defence of the party opposing enforcement are assured at the enforcement stage through an application for refusal of enforcement (Arts. 41, 50, 57 and 59 Brussels IIter).2

2

Underlying this change is the general purpose of facilitating the enforcement of decisions given in another Member State and the more specific purpose of making cross-border litigation concerning children less time consuming and costly (Recital 58). The critical assessment of this solution was made above (Introductory remarks to Arts. 30–37, note 6).

3

The part of the judgments granting divorce, legal separation or marriage annulment that falls under the scope of the Regulation does not have an enforceable content. The part of these judgments with enforceable content falls under other sources of law, namely the maintenance and matrimonial property regimes Regulations. Therefore, Art. 34 Brussels IIter only deals with decisions on parental responsibility matters. The expression “judgment on the exercise of parental responsibility”, used in Art. 28(1) of Brussels IIbis Regulation was replaced by the expression “decision in matters of parental responsibility”, clarifying that all parental responsibility matters not excluded from the scope of the Regulation are, in principle, included (see, on the scope of parental responsibility matters, above Introduction 30–37 notes 22, notes 24–25 and 32 et seq.).

4

The provision covers also a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which has to be enforced in a Member State other than the Member State where the decision was given, although this is not a decision on the substance of parental responsibility (Recital 16 and Art. 1(3) Brussels IIter), and provisional, including protective, measures ordered by a court which by virtue of the regulation has jurisdiction as to the substance of the matter or measures ordered in accordance with Art. 27(5) Brussels IIter in conjunction with Art. 15 Brussels IIter (Art. 2(1)§ 2 Brussels IIter) (see above Introduction 30–37 notes 23 et seq., and note 35). Furthermore, it is applicable to the enforcement of any order concerning such costs and expenses of the proceedings (Art. 73 Brussels IIter).

5

Art. 34 Brussels IIter does not apply to enforceability of privileged decisions, but is replicated by Art. 45 Brussels IIter that specifically deals with privileged decisions.

6

Art. 34(1) Brussels IIter only requires that the decision is enforceable in the Member State of origin. The principle that the decision shall not produce in the local legal order effects that it does not produce in the country of origin underlies the requirement that the decision is enforceable according to

1 See also Explanatory Memorandum of the Proposal, p. 15–16. 2 See also Recital 62.

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the law of the Member State of origin.3 However, the ECJ case law, regarding the 1968 Brussels Convention and the Brussels I Regulation, is not completely clear about what is an enforceable decision. The general idea seems to be that the decision is formally enforceable, regardless of whether it is in a position to be effectively enforced.4 The decision does not have to be res iudicata: a decision may be enforceable under the law of a Member State even in case of appeal or if it is still subject to an appeal.5 It is sufficient a provisory enforceability.6 The enforceability will be established by the certificate produced according to Art. 35 Brussels IIter in the forms specified in Annexes III (point 11) and IV (point 12). The provision does not require serving at the Member State of origin, but besides the ground for re- 7 fusal of enforcement resulting from Arts. 39(1)(b) and 41 Brussels IIter, Art. 55(1) Brussels IIter requires the serving of the appropriate certificate and of the decision prior to the first enforcement measure. Art. 34(2) Brussels IIter provides that for the purposes of enforcement in another Member State of a 8 decision granting rights of access, the court of origin may declare the decision provisionally enforceable notwithstanding any appeal. Art. 30(2) of the Proposal added “even if national law does not provide for such provisional enforceability”. It seems that the omission of the last part in the Regulation provision does not change its meaning, because what is at stake is the lack of enforceability in case of appeal or while the decision is subject to appeal in some national laws, as explained by Recital 66 “This Regulation seeks to establish a level playing field as regards the cross-border enforcement of decisions in matters of parental responsibility among Member States. In a number of Member States, these decisions are already enforceable even if they are still subject to appeal, or already under appeal. In other Member States, only a final decision no longer subject to ordinary appeal is enforceable. In order to cater for situations of urgency, this Regulation therefore provides that certain decisions in matters of parental responsibility might be declared provisionally enforceable by the court of the Member State of origin even if still subject to appeal, namely decisions ordering the return of a child under the 1980 Hague Convention and decisions granting rights of access”. Regarding decisions ordering the return of a child under the 1980 Hague Convention, Art. 27(6) Brussels IIter provides that a decision ordering the return of the child may be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child. According to Recital 47, national law can specify by which court the decision can be declared provisionally enforceable.

9

The enforceable decisions are enforced according to Arts. 51 et seq. supplemented by the law of the Member State of enforcement (Art. 51(1) Brussels IIter) (infra Art. 51 notes 6 et seq. [Cuniberti]).

10

Article 35 Documents to be produced for enforcement 1. For the purposes of enforcement in a Member State of a decision given in another Member State, the party seeking enforcement shall provide the authority competent for enforcement with: (a) a copy of the decision, which satisfies the conditions necessary to establish its authenticity; and (b) the appropriate certificate issued pursuant to Article 36. 3 Cf. Jenard, Report (1979), p. 164. 4 Cf. Coursier v. Fortis Bank (Case C-267/97), ECLI:EU:C:1999:213, para 24 et seq., and Meletis Apostolides v. David Charles Orams and Linda Elizabeth Orams (Case C-420/07), ECLI:EU:C:2009:271, para. 70–71. See further Rauscher/Rauscher, Art. 28 note 16. 5 Cf. Thomas/Putzo/Hüßtege, Art. 28 note 4; Geimer/Schütze/Geimer, Art. 28 note 4; Rauscher/Rauscher, Art. 28 note 17; Andrae in Nomos Kommentar BGB I, Art. 28 note 2; and Magnus/Mankowski/McClean, Art. 28 note 6. 6 Cf. Geimer/Schütze/Geimer, Art. 28 note 4; Andrae in Nomos Kommentar BGB I, Art. 28 note 2, and Rauscher/ Rauscher, Art. 28 note 17.

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Art. 35 Brussels IIter Documents to be produced for enforcement 2. For the purposes of enforcement in a Member State of a decision given in another Member State ordering a provisional, including a protective, measure, the party seeking enforcement shall provide the authority competent for enforcement with: (a) a copy of the decision, which satisfies the conditions necessary to establish its authenticity; (b) the appropriate certificate issued pursuant to Article 36, certifying that the decision is enforceable in the Member State of origin and that the court of origin: (i) has jurisdiction as to the substance of the matter; or (ii) has ordered the measure in accordance with Article 27 (5) in conjunction with Article 15; and (c) where the measure was ordered without the respondent being summoned to appear, proof of service of the decision. 3. The authority competent for enforcement may, where necessary, require the party seeking enforcement to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the certificate which specifies the obligation to be enforced. 4. The authority competent for enforcement may require the party seeking enforcement to provide a translation or transliteration, in accordance with Article 91, of the decision if it is unable to proceed without such a translation or transliteration. 1

The requirement of production of the copy of the decision and of the certificate aims at the easy and safe proof of the existence and contents of the decision. The provision determines autonomously the documents that a party seeking enforcement shall provide to the authority competent for enforcement (see above Art. 31 note 1). The authority competent for enforcement is communicated by that Member State to the Commission pursuant to Art. 103 Brussels IIter (Art. 52 Brussels IIter).1 Neither further documents nor other proof can be required.2

2

The provision covers any kind of decision on parental responsibility matters within the scope of Chapter IV and enforceable content, with exception of privileged decisions defined in Art. 42(1) Brussels IIter, which are covered by the parallel provision of Art. 46 Brussels IIter. However, als already remarked, Section 2 does not prevent a party from seeking enforcement of privileged decisions in accordance with the provisions on recognition and enforcement laid down in Section 1 (Art. 42(2) Brussels IIter). The provision covers also the enforcement of orders costs and expenses of proceedings under the Regulation (Art. 73 Brussels IIter).3

3

Art. 38 of Brussels IIbis Regulation, on absence of documents, applies both to recognition and to declaration of enforceability. On the contrary, the corresponding provision of Brussels IIter Regulation, Art. 32, which gives the court power to accept equivalent documents or, if it considers that it has sufficient information before it, dispense with its production, refers to documents required by Art. 31 Brussels IIter, which concerns only recognition. Art. 55(1) Brussels IIter confirms that the certificate and the copy of the decision are always required for enforcement. No equivalent documents or other means of evidence can replace the required documents. This change seems justified, because the party seeking enforcement can now apply directly for enforcement, and the certificate and the copy of the decision shall always be required for enforcement.4

4

Regarding the documents required and their production, Art. 31 notes 4–6 apply accordingly. The documents shall be provided by the party seeking enforcement (Art. 35(1) Brussels IIter). On the other hand, Art. 59(2) Brussels IIter provides that the applicant for refusal of enforcement shall provide the authority competent for enforcement or the court with a copy of the decision and, where ap1 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast. 2 See also Magnus/Mankowski/Magnus, Art. 37 note 28, and Geimer/Schütze/Geimer, Art. 46 note 1. 3 Cf. Magnus/Mankowski/Magnus, Art. 37 note 7. 4 See also BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v. Gradbenisˇtvo Korana d.o.o. (Case C-579/17), ECLI: EU:C:2019:162, para. 37.

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plicable and possible, the appropriate certificate (infra Art. 59 notes 8–9), and Art. 59(5) Brussels IIter that the authority competent for enforcement or the court may dispense with the production of the documents if it already possesses them, or it considers it unreasonable to require the applicant to provide them, in which case the authority competent for enforcement or the court may require the other party to provide those documents. Art. 35(2) Brussels IIter contains a new rule on the documents to be produced for the purposes of 5 enforcement in a Member State of a decision given in another Member State ordering a provisional measure. According to this rule, the party seeking enforcement of a decision ordering a provisional, including a protective, measure shall also provide the authority competent for enforcement with a copy of the decision, which satisfies the conditions necessary to establish its authenticity and the appropriate certificate issued pursuant to Art. 36 Brussels IIter. However, this rule adds that the certificate shall certify that the decision is enforceable in the Member State of origin and that the court of origin has jurisdiction as to the substance of the matter or has ordered the measure in accordance with Art. 27 (5) Brussels IIter in conjunction with Art. 15 Brussels IIter, and, where the measure was ordered without the respondent being summoned to appear, proof of service of the decision. This rule shall be understood in connection with the definitions of the provisional measures enforceable under Chapter IV provided by Art. 2(1)§§ 2 and 3 Brussels IIter (see above Introduction 30–37 notes 9, 23–25 and 36–37). Art. 31 notes 7–9 apply accordingly to the translation or transliteration of the documents required 6 under Art. 35(3) and (4) Brussels IIter. The Regulation does not set a time limit for the production of the required documents. Thus, the time limit for the production of the required documents depends on the domestic law of the recognition Member State (Arts. 51(1) and 59(1) Brussels IIter). Normally, the documents shall accompany the application for enforcement or the application for the refusal of enforcement, as the case may be.

7

Subsection 3 Certificate (Art. 36–Art. 37)

Article 36 Issuance of the certificate 1. The court of a Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application by a party, issue a certificate for: (a) a decision in matrimonial matters using the form set out in Annex II; (b) a decision in matters of parental responsibility using the form set out in Annex III; (c) a decision ordering the return of a child as referred to in point (a) of Article 2(1), and, where applicable, any provisional, including protective, measures ordered in accordance with Article 27(5) accompanying the decision using the form set out in Annex IV. 2. The certificate shall be completed and issued in the language of the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by the party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields. 3. No challenge shall lie against the issuance of the certificate. The issuance of a certificate for recognition and enforcement purposes serves the aim of facilitating the recognition and enforcement of decisions given in another Member States, namely by facilitating the examination of the grounds for refusal of recognition and enforcement and by providing a qualified mean of evidence of the relevant facts.1 The certificate is, in principle, required for recognition 1 See Thomas/Putzo/Hüßtege, Art. 39; Rauscher/Rauscher, Art. 39 note 1, Andrae in Nomos Kommentar BGB I, Art. 39 note 1, and Magnus/Mankowski/Magnus, Art. 39 note 1.

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1

Art. 36 Brussels IIter Issuance of the certificate (Arts. 31–32 Brussels IIter) and is always required for enforcement (Art. 35 Brussels IIter). Art. 36 Brussels IIter applies in general to the recognition and enforcement under Chapter IV, but Arts. 47–48 Brussels IIter contain special rules regarding privileged decisions. 2

The certificate must be issued by the court of a Member State of origin as communicated to the Commission pursuant to Art. 103 Brussels IIter.2 This is an improvement in relation to Art. 39 of Brussels IIbis Regulation in which it is necessary a reference to the law of the Member State of origin. ‘Member State of origin’ means the Member State in which the decision has been given (Art. 2(2)(4) Brussels IIter). It will often be the court that rendered the decision. Art. 36 Brussels IIter no longer refers to “court or authority” but only to “court” since the definition of court provided in Art. 2(2)(1) Brussels IIter already encompasses any authority with jurisdiction in the matters falling within the scope of the Regulation.

3

According to Art. 53(2) of the Commission’s Proposal, where the decision involves a cross-border situation at the time of its delivery, the certificate should be issued ex officio, when the decision becomes enforceable, even if only provisionally. This solution was not adopted by the Regulation. The certificate must always be issued at the application of a party, as it is under Art. 39 of Brussels IIbis Regulation.3

4

The expression issue “at the request of any interested party”, used in this provision, was replaced by “upon application by a party”. This change may be related with the fact that according to Recital 54 the concept of “interested party” for the purpose of recognition or non-recognition is to be determined by the domestic law of the forum Member State rather than autonomously. However, in order to respect the general purpose of the Regulation, it shall be understood that at least the spouses, children of the marriage or public authorities with competence in the matter are entitled to apply for the issuance of certificate regarding decisions on matrimonial matters, as wells as either parent, other persons holding parental responsibility, the child and public authorities with competence in the matter regarding decisions on parental responsibility.4

5

For the issuance of the certificate, the competent court shall verify if the Regulation is applicable and a preliminary reference to the ECJ regarding this issue is admissible.5

6

Since, in matrimonial matters, Chapter IV covers only decisions dissolving matrimonial ties (see above Introduction 30–37 note 29), it could be thought that the certificate shall not be issued for decisions refusing the dissolution of matrimonial ties. However, Chapter IV is also applicable to decisions on costs and expenses of the proceedings under the Regulation (Art. 73 Brussels IIter), and, therefore, it makes sense that the certificate shall also be issued on application by a party regarding negative decisions on matrimonial matters. Furthermore, a person may have a legitimate interest to obtain a certificate showing that the marriage continued.6 Since the Annex II form does not specifically foresee a line for negative judgments, it is suggested that the issuing court insert as the case may be the remark “petition for divorce/annulment/separation rejected” in line 4.3.1., 4.3.2. or 4.3.3. of the form.7 The form is also incomplete for the purpose of enforcement of costs and expenses of the proceedings, since it does not indicate if the decision is enforceable in the Member State of origin.8

2 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast. 3 Cf. Magnus/Mankowski/Magnus, Art. 39 note 3. 4 See also, under Brussels IIbis Regulation, Rauscher/Rauscher, Art. 39 note 3, and Magnus/Mankowski/Magnus, Art. 39 note 4. 5 Cf. BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v. Gradbenisˇtvo Korana d.o.o. (Case C-579/17), ECLI:EU: C:2019:162, para. 38–42, and Alessandro Salvoni v. Anna Maria Fiermonte (Case C-347/18), ECLI:EU:C:2019: 661, para. 28–32. 6 See Magnus/Mankowski/Magnus, Art. 39 note 5. 7 See also Magnus/Mankowski/Magnus, Art. 39 note 5, regarding the corresponding lines of the Annex I-form of the Brussels IIbis Regulation. 8 See also Rauscher/Rauscher, Art. 39 note 8, and Geimer/Schüze/Geimer, Art. 39 note 3.

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There is no time limit for the application for issuance of a certificate under Art. 36 Brussels IIter.9 The domestic law of the Member State of origin governs the application form.10

7

According to Art. 36(2) Brussels IIter, the certificate shall be completed and issued in the language of 8 the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by the party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields. Art. 31(2) Brussels IIter provides that the court or competent authority before which a decision given in another Member State is invoked may, where necessary, require the party invoking it to provide a translation or transliteration of the translatable content of the free text fields of the certificate ((see above Art. 31 notes 7–9), and Art. 35(3) Brussels IIter provides that the authority competent for enforcement may, where necessary, require the party seeking enforcement to provide a translation or transliteration of the translatable content of the free text fields of the certificate which specifies the obligation to be enforced (see above Art. 35 note 6). According to Art. 36(3) Brussels IIter, no challenge shall lie against the issuance of the certificate. The 9 statutory precedent of Art. 36(3) Brussels IIter is Art. 43(2) of the Brussels IIbis Regulation contained in the section on enforceability of certain judgments concerning rights of access or which require the return of the child. According to this provision, no appeal shall lie against the issuing of a certificate pursuant to Arts. 41(1) or 42(1). Art. 36(3) Brussels IIter generalizes the solution to all certificates covered by Art. 36(1) Brussels IIter and replaces “appeal” by “challenge” making clear that no remedy is available against the issuance of the certificate. The issuance of the certificate cannot be challenged either in the Member State of origin or in the Member State of recognition or enforcement.11 It is only admissible an application for rectification of the certificate under Art. 37 Brussels IIter. This is justified by the concern of avoiding delay in the recognition and enforcement of the decision.12 However, this does not exclude the challenging of the authenticity of the certificate where justified doubts exist.13 If the court refuses the issuance of the certificate any appeal against this decision depends on and is governed by the domestic law of the forum Member State.14

Article 37 Rectification of the certificate 1. The court of a Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application, and may, of its own motion, rectify the certificate where, due to a material error or omission, there is a discrepancy between the decision to be enforced and the certificate. 2. The law of the Member State of origin shall apply to the procedure for rectification of the certificate. The purpose of Art. 37 Brussels IIter is to promote the correctness of the certificate and, therefore, as- 1 sure that it properly performs its functions of facilitating the recognition and enforcement of the decisions given in other Member States, namely by facilitating the examination of the grounds for refusal of recognition and enforcement and by providing a qualified mean of evidence of the relevant

9 See Andrae in Nomos Kommentar BGB I, Art. 39 note 1, and Magnus/Mankowski/Magnus, Art. 39 note 6. For the same view, under Art. 54 of Brussels I Regulation, Kropholler/von Hein, Art. 54 note 3; under Art. 53 of Brussels Ibis Regulation, Rauscher/Staudinger, Art. 53 note 2. 10 Cf. Magnus/Mankowski/Magnus, Art. 39 note 6. 11 Cf. Thomas/Putzo/Hüßtege, Art. 43 note 2; and Magnus/Mankowski/Magnus, Art. 39 note 10. 12 See also Magnus/Mankowski/Magnus, Art. 39 note 14 and Art. 43 notes 1 and 10. 13 Cf. Inga Rinau (Case C-195/08), ECLI:EU:C:2008:406, para. 88–89; Magnus/Mankowski/Magnus, Art. 43 note 1. 14 Cf. Geimer/Schütze/Geimer, Art. 43 note 7; Benicke in Nomos BGB Kommentar I, Art. 43 note 12; Rauscher/ Rauscher, Art. 43 note 4; Magnus/Mankowski/Magnus, Art. 39 note 13 and Art. 43 notes 1 and 11.

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Art. 37 Brussels IIter Rectification of the certificate facts. The provision applies to certificates issued pursuant to Art. 36 Brussels IIter. Art. 48 Brussels IIter applies to certificates issued pursuant to Art. 47 Brussels IIter (privileged decisions). 2

The provision defines autonomously the meaning of rectification: a discrepancy between the decision to be enforced and the certificate due to a material error or omission. Thus, the rectification can only take place where the contents of the certificate is incorrect, for instance where it contains wrong parties or names, misspellings, wrong dates or wrong modalities of access or return, as well as where it certifies a decision that was not rendered.1 This draws a clear distinction between rectification and challenge against the issuance of the certificate, which is not allowed (Art. 36(3) Brussels IIter). The rectification procedure cannot be used to rectify the contents of the decision.2

3

The court competent for the rectification is the court of the Member State of origin as communicated to the Commission pursuant to Art. 103 Brussels IIter (Art. 37(1) Brussels IIter).3 ‘Member State of origin’ means the Member State in which the decision has been given (Art. 2(2)(4) Brussels IIter). A rectification of the certificate in any other Member State, namely in the Member State of recognition or enforcement, is excluded.4 The rectification can be made upon application of any interested party. i.e., a party who can apply for the issuance of the certificate (see above Art. 36 note 4),5 or ex officio.

4

The domestic law of the Member State of origin governs the rectification procedure (Art. 37(2) Brussels IIter). The domestic law of the Member States shall provide for a procedure available to this purpose and determines the formalities of this procedure, namely the time limit and form for the rectification application, and whether and from when the incorrect certificate becomes invalid.6 This procedure must comply with the aim of facilitating and expediting the recognition and enforcement of decisions given in other Member States and, therefore, it shall de expeditious.7

5

Art. 54(2) of the Commission’s Proposal provided that the “authority of origin shall, upon application, withdraw the certificate where it was clearly wrongly granted, having regard to the requirements laid down in this Regulation” and (3) that the “law of the Member State of origin shall be apply to the procedure for rectification and withdrawal of the certificate”. The Regulation does not provide for the certificate withdrawal, with exception of the certificate for privileged decisions (Art. 48 Brussels IIter). The European legislator only wanted to admit the withdrawal of the certificate where it is wrongly granted for privileged decisions, having regard to the particular requirements for the certificate issuance laid down in Art. 47 Brussels IIter.

Subsection 4 Refusal of recognition and enforcement (Art. 38–Art. 41) Bibliography: Beaumont, Interaction of the Brussels IIa and Maintenance Regulations with (Possible) Litigation in Non-EU States: Including Brexit Implications, in: Viarengo/Villata (eds.), Planning the Future of Cross Border Families. A Path Through Coordination, Studies in Private International Law, Vol. 29. (2020), pp. 331–343; Beaumont, Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations, 29 Child and Family Law Quarterly (3), 2017, pp. 213–232; Beaumont/Johnston, Can Exequatur be Abolished in Brussels I whilst Retaining a Public Policy Defence, Journal of Private International Law, (2010) Vol. 6, No. 2, pp. 249–280; Beaumont/Trimmings, Court of Justice of the European Unions Case Law on Family Law

1 See Benicke in Nomos Kommentar BGB I, Art. 43 note 2; Geimer/Schütze/Geimer, Art. 43 note 10, and Magnus/Mankowski/Magnus, Art. 43 note 3. 2 Cf. Magnus/Mankowski/Magnus, Art. 43 notes 3 and 5. Compare Rauscher/Rauscher, Art. 43 note 9. 3 The communications of the Member States are available on the European e-Justice Portal at https://e-justice. europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_parental_responsibility_re cast. 4 Cf. Rauscher/Rauscher, Art. 43 note 9, and Geimer/Schütze/Geimer, Art. 43 note 8. 5 Compare, under Brussels IIbis Regulation, Rauscher/Rauscher, Art. 43 note 10, with Magnus/Mankowski/Magnus, Art. 43 note 6. 6 See further Rauscher/Rauscher, Art. 43 note 10, and Magnus/Mankowski/Magnus, Art. 43 notes 5, 7 and 9. 7 See also Magnus/Mankowski/Magnus, Art. 43 note 8.

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Matters Under Brussels IIa and Maintenance in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), pp. 711–740. Studies in Private International Law. http://dx.doi.org/10.5040/9781782256793. ch-041; Beaumont/Walker/Holliday, Not Heard and Not Returned: The Reality of Article 11(8) Proceedings, International Family Law 2015, pp. 124–133; Biagioni/Carpaneto, Children under Brussels IIter Regulation, Yearbook of Private International Law, Vol. 22 (2020/2021) pp. 139–155; Bianchi et al., Agreements concluded by spouses in the matter of divorce or legal separation: the “dogma” of recognition and enforcement within the European area, Themis Annual Journal (1/1) 2019, pp. 108–135; Bogdzevicˇ/Kaminiskiene˙/Vaigo˙, Non-judicial Divorces and the Brussels IIbis Regulation: To Apply or not Apply?, International Comparative Jurisprudence (7/1) 2021, pp. 31–39, http://dx.doi.org/10.13165/j.icj.2021.06.003; Brosch/Mariottini, Facilitating Cross-Border Family Life: Towards a Common European Understanding, Report on the International Exchange Seminar, 20 December 2019; Carpaneto, Impact of the Best Interests of the Child on the Brussels IIter Regulation, in Bergamini/Ragni (eds.), Fundamental Rights and the Best Interest of the Child in Transnational Families, 2019, pp. 265- 287, available at https:// cambridge.com/core/terms; Cuniberti, The recognition of Foreign Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance and Efficiency, 57 International and Comparative Quarterly, 25 (2008) pp. 25–52; Dutta, Privatscheidungen und Brüssel IIb: drei Fragen an den neuen Art. 65 Abs. 1, Zeitschrift für das gesamte Familienrecht (FamRZ), 2020, pp.1428 et seq.; De Boer/Kotting, Kinderontvoering en het Belang van het Kind in De Krant van het Kind, Liber Amicorum Prof. Mr. Miek de Langen (Gouda Quint 1992); De Ruyck/Verhellen/Quinzá Redondo, Chapter 6: Recognition and Enforcement in Matrimonial Matters in Lazic´ (ed.), Guide for Application of the Brussels IIbis Regulation, available at https://www.asser.nl/media/4649/m-5796-ec-justice-cross-border-proceed ings-in-family-law-matters-10-publications-02-guide-for-application-chapter-1.pdf (2018) pp. 202 et seq; Gaudemet-Tallon, Le Règlement 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 (2001) JDI, pp. 406 et seq.; González Beilfuss, What is New in Regulation (EU) No 2019/1111?, Yearbook of Private International Law (22) 2020/2021, pp. 95–117; Gray/Schrama/Lazic´, Brussels IIbis: Scope and Definitions, Chapter 1, in Lazic´, V. (ed.), Guide for Application of the Brussels IIbis Regulation, available at https://www.asser.nl/media/ 4649/m-5796-ec-justice-cross-border-proceedings-in-family-law-matters-10-publications-02-guide-for-applicationchapter-1.pdf, pp. 1 et seq.; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); Hazelhorst, Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial, The Hague: T.M.C. Asser Press 2017; Hazelhorst, The ECtHRs Decision on Povse: Guidance for the Future of the Abolition of Exequatur for Civil Judgments in the European Union, NIPR 2014, p. 27–33; Hess/Pfeiffer, Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law, Microsoft Word – pe453189_en.doc (europa.eu); Jurik, Le “nouveau” Règlement Bruxelles II ter: le changement, ce nest pas pour maintenant!, Journal dactualité des droits européens, 30 October 2019, https://revue-jade.eu/article/view/2934; Kramme, Private Divorce in Light of the Recast of the Brussels IIbis Regulation, Zeitschrift für das Privatrecht der Europäischen Union (18/3) 2021, pp. 101–106; Kruger, The Disorderly Infiltration of EU Law in Civil Procedure, Netherlands International\Law Review (NILR) (2016) 63,1–22; Kruger/Samyn, Brussels IIbis: successes and suggested improvements, Journal of Private International Law (12/1) 2016, pp. 158–159; Lazic´, Recognition and enforcement of decisions in the revised Brussels IIbis Regulation, Nederlands internationaal privaatrecht (NIPR) 2021 No. 4, pp. 729 et seq.; Lazic´, The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation, in: Iglesias Sánchez/González Pascual (eds.), Fundamental Rights in the EU Area of Freedom, Security and Justice (2021), pp. 192–210; Lazic´/Kruisinga, Prorogation of Jurisdiction: Validity Requirements and Methods of Interpretation, in: Benicke/Huber (eds.), National, international, transnational: harmonischer Dreiklang im Recht: Festschrift für Herber Kronke zum 70. Geburtstag (2020), pp. 269–274; Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels IIter, Yearbook of Private International Law, Vol XXII, 2020/2021, 155–182; Lazic´ et al. in Lazic´ (ed.), Recommendations To Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union, 63 p. https://www.asser.nl/media/4662/m-5796-ec-justice-cross-border-proceedings-in-family-lawmatters-10-publications-00-publications-on-asser-website-recommendations.pdf; McEleavy, The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?, Netherlands International Law Review (62) 2015, pp. 365–405; Mostermans, De wederzijdse erkenning van echtscheidingen binnen de Europese Unie (2002) NIPR, pp. 263–273; Musseva, The recast of the Brussels IIa Regulation: the sweet and sour fruits of unanimity, ERA Forum (21) 2020, pp. 129–142: https://doi.org/10.1007/s12027-019-00595-5; Nikolina, The Influence of International Law on the Issue of Co-Parenting: Emerging Trends in International and European Instruments (2012) 8(1) Utrecht Law Review, pp. 122–144 DOI: http://doi.org/10.18352/ulr.184; Oderkerk in Koens/Vonken (eds.), Personen- en familierecht, Tekst & Commentaar, 11th edition, Wolters Kluwer, pp. 2985 et seq; Scott, A question of trust? Recognition and enforcement of judgments Nederlands Internationaal privaatrecht (NIPR), No 1, 2015, pp. 27–35; Siehr in Magnus/Mankowski (eds.) Brussels IIbis Regulation, European Commentaries on Private International Law, 2nd edition (2017); Tóth, The Revision of Brussels IIa Regulation on Questions of Parental Responsibility and Child Abduction, European Integration Studies (15/1) 2019, p. 84–95; Vassilakakis, The Impact of Substantive Law on the Material Scope of Application of Regulation Brussels IIbis, Public and Private International Law Bulletin, 2015, Vol. 35, Issue 2, pp. 59 et seq.; Viarengo, The Enforcement of

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters Maintenance Decisions in the EU: Requiem for Public Policy? Family Relationships and the (Partial) Abolition of Exequatur, in: Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), pp. 473 et seq; Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel II-Verordnung (2001) IPRax, pp. 73–81.

Article 38 Grounds for refusal of recognition of decisions in matrimonial matters The recognition of a decision relating to a divorce, legal separation or marriage annulment shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked; (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 decision unequivocally; (c) if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is invoked; or (d) if it is irreconcilable with an earlier decision given in another Member State or in a nonMember State between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked. I. Preliminary Remarks . . . . . . . . . . . . . . 1. Abolishing the exequatur – relevance for decisions in matrimonial matters . . . . . . . . II. Scope of Application – Against which decisions may the grounds in Art. 38 be raised . 1. Substantive scope . . . . . . . . . . . . . . . . . a) Expanding the types of decisions within the scope . . . . . . . . . . . . . . . . . . . . b) Private or ‘out-of-court’ divorces . . . . . . 2. Definitions of a ‘decision’ and a ‘court’ . . . . 3. Decisions in matrimonial matters not falling within the scope . . . . . . . . . . . . . . . . . a) Religious (unilaterally declared) divorces . b) Same-sex marriages . . . . . . . . . . . . . . c) Negative decisions . . . . . . . . . . . . . . 4. Posthumous and third-party nullity procedures . . . . . . . . . . . . . . . . . . . . . 5. Private divorces – definitions of an ‘agreement’ and an ‘authentic instrument’ . . . . . . a) Definition of an ‘agreement’ . . . . . . . . b) Types of agreements falling within the scope of application . . . . . . . . . . . . . c) Definition of an ‘authentic instrument’ . . d) Differences between a private divorce qualified as a ‘decision’ and those characterised as an ‘agreement’ or an ‘authentic instrument’ . . . . . . . . . . . . . . . . . . e) No review of international jurisdiction when recognizing a foreign ‘decision’ . . .

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f) An ‘authentic instrument’ and an ‘agreement’ – drawn or registered by an authority with international jurisdiction under the rules of the Recast . . . . . . . . . . . . 30 g) Characterisation of a ‘private divorce’ . . . 32 III. Limited control over and a strict interpretation of the grounds in the Member State of recognition and enforcement . . . . . . . . . 1. List of grounds for refusal of recognition is exhaustive . . . . . . . . . . . . . . . . . . . . . 2. Prohibition of reviewing the decision on international jurisdiction . . . . . . . . . . . . 3. Prohibition of reviewing the decision on the merits (prohibition of révision au fond) . . . IV. Grounds for the refusal of recognition in matrimonial matters under Art. 38 . . . . . . 1. Public policy exception . . . . . . . . . . . . . a) A decision ‘manifestly’ contrary to public policy . . . . . . . . . . . . . . . . . . . . . . b) Role of the CJEU in reviewing the limits of the public policy exception . . . . . . . . c) Strict interpretation of public policy exception . . . . . . . . . . . . . . . . . . . . d) Violations of substantive and procedural law . . . . . . . . . . . . . . . . . . . . . . . e) Examination of public policy exception . . 2. Violation of the ‘due process and fair trial’ requirement . . . . . . . . . . . . . . . . . . . . a) Decision given in default proceedings . . .

34 34 35 36 37 38 39 41 43 45 47 49 50

Chapter IV: Recognition and Enforcement b) Proper service of a document initiating the proceedings or an equivalent document . . . . . . . . . . . . . . . . . . . . . . 53 c) Service in sufficient time to organise a defence . . . . . . . . . . . . . . . . . . . . . 57 3) Irreconcilable decisions – Art. 38(1)(c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . 58

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a) Distinction between irreconcilable decisions in matrimonial matters and in matters of parental responsibility . . . . . . . . b) Meaning of irreconcilability . . . . . . . . . c) Irreconcilability of a foreign decision with a domestic decision . . . . . . . . . . . d) Irreconcilability of two foreign decisions .

59 60 62 63

I. Preliminary Remarks The Recast merges all rules on recognition and enforcement in Chapter IV consisting of 5 Sections. It 1 partly unifies the rules of the enforcement procedure in Section 3, even though as a matter of principle the enforcement procedure is governed by the law of the Member State of enforcement.1 Section 2 of Chapter IV relates to the enforcement of ‘privileged decisions’, whereas Section 4 deals with the recognition and enforcement of authentic instruments and agreements. Section 5 contains provisions on, inter alia, non-review on the merits, costs, the effects of an appeal in certain Member States and legal aid. Grounds for refusing recognition and enforcement are dealt with in Section 1 relating to general provisions. 1. Abolishing the exequatur – relevance for decisions in matrimonial matters No special procedure is required when a judgment on a matrimonial matter presents a legal basis for updating the civil records or when its incidental recognition is requested in a procedure before a court in the Member State of recognition under the Brussels IIbis Regulation. Such an automatic recognition is based on mutual trust and facilitates the free movement of persons in the EU, since it ensures that the marital status of EU citizens has the same effects in all Member States.2 Thus, considering that automatic recognition is already a part of the Brussels IIbis Regulation, abolishing the exequatur in the Recast implies no consequences in this respect.3

2

However, an application for recognition through exequatur under the Brussels IIbis Regulation in Art. 30 note 3 of the Recast is replaced by the possibility to apply for a decision that there are no grounds for the refusal of recognition listed in Art. 38. The same grounds may be relied upon when an opposing party initiates proceedings to refuse recognition according to Art. 40. When either a request for the refusal to recognise a decision in matrimonial matters is filed or an application is submitted to the effect that there are no grounds for the refusal the same procedure applies.4 It includes selected provisions of partly unified rules governing applications for enforcement, as will be detailed infra, under Art. 40.

3

II. Scope of Application – Against which decisions may the grounds in Art. 38 be raised The rules on the enforcement of the Recast will apply to decisions on matrimonial matters and parental responsibilities given in legal proceedings instituted on or after 1 August 2022, authentic instru-

1 Art. 51 para. 1 of the Recast. 2 Scott, A question of trust? Recognition and enforcement of judgments, NIPR 2015 No 1, p. 27. 3 An interested party may invoke a decision of the court of a Member State on matrimonial matters in another Member State whereby no special procedure is required with the purpose of updating the civil records on the basis of a decision involving a matrimonial matter which may no longer be appealed against in the Member Sate of origin (Art. 30 para. 2). No special procedure is required to file a request for an incidental recognition of a decision given in one Member State within another procedure before a court of another Member State (Art. 30 para. 5). 4 Arts. 30 para 3 and 40 para 1 of the Recast.

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters ments formally drawn up or registered, as well as agreements which have become enforceable on or after that date.5 1. Substantive scope 5

Art. 1 relating to the substantive scope of application has remained unchanged. Thus, the Recast applies to the recognition of decisions relating to divorce, legal separation and marriage annulment and to the recognition and enforcement of decisions in matters of the attribution, exercise, delegation, restriction or termination of parental responsibility. As to the former, the Recast, just as the Brussels IIbis Regulation, should only apply to the dissolution of matrimonial ties. It does not apply to other issues closely linked to the dissolution of marriage and its consequences, such as proprietary consequences and any other ancillary measure,6 administrative consequences or maintenance. Some of these matters are dealt with in a number of other EU private international law instruments. Decisions on family law matters concerning issues which are not unified at the EU level are recognised and enforced by the application of national law. a) Expanding the types of decisions within the scope

6

The Recast expands the types of decisions which fall within its scope of application in Art. 2. Extending the types of decisions in paragraph 1 primarily has a bearing on decisions in matters related to parental responsibility. They will be addressed in greater detail in the context of Art. 41. Some of the newly introduced definitions in paragraph 2 mainly have consequences for matrimonial matters, but they may be of relevance for matters of parental responsibility, as well. This is particularly so with respect to the definition of an ‘agreement’, in so far as such agreements are permitted under the national law of a Member State. b) Private or ‘out-of-court’ divorces

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The Recast includes so-called ‘private divorces’ or rather ‘out-of-court divorces’ within its scope. Since private divorces can be qualified both as ‘decisions’7 and as ‘authentic instruments’ and ‘agreements’ within the meaning of Art. 2(1), 2(2)(2) and 2(2)(3) respectively it is necessary to briefly address what types of ‘agreements’ fall within the scope of the Recast enforcement scheme.

8

In the context of Arts. 38 and 39 it is particularly relevant to examine which ‘agreements’ can be qualified as ‘decisions’.8 Namely, the recognition of an ‘agreement’ characterised as a ‘decision’ may be refused for reasons listed in Arts. 38 and 39. In contrast, an agreement qualified as an ‘authentic instrument’, or an ‘agreement’, is recognised and enforced according to Section 4 of Chapter IV. The latter defines its own scope in Art. 64 and provides for the list of grounds for the refusal of recognition and enforcement in Art. 68. Even though the latter largely overlap with the grounds in Arts. 38 and 39, some important differences in recognition and enforcement may follow from the scope of application defined in Art. 64, as will be addressed infra, under 5.d).

5 Art. 100(2) of the Recast provides that the Regulation Brussels IIbis ‘shall continue to apply to decisions given in legal proceedings instituted, authentic instruments formally drawn up or registered and to agreements which have become enforceable in the Member State where they were concluded before 1 August 2022 and which fall within the scope of that Regulation’. 6 Recital (9). 7 The term ‘judgment’ has been replaced by a ‘decision’ throughout the Recast. 8 Regarding some foreseeable difficulties in practice in qualifying an agreement as a ‘decision’ or as an ‘authentic instrument’, see, e.g., Dutta, Privatscheidungen und Brüssel IIb: drei Fragen an den neuen Art. 65 Abs. 1, FamRZ 2020, p. 1428. Some doubts on the qualification of the notarial divorce in Spain are expressed by González Beilfuss, What is New in Regulation (EU) No 2019/1111?, Yearbook of Private International Law (22) 2020/2021, p. 103.

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2. Definitions of a ‘decision’ and a ‘court’ A definition of a ‘decision’ is given in Art. 2(1). It is broadly defined and includes any type of deci- 9 sion given by a court of a Member State in matters within its substantive scope of application. It is thereby irrelevant how a decision is termed – a decree, an order or a judgment. A ‘court’ is defined in Art. 2(2)(1) and presents merely a slight adjustment to the wording of the definition in the Brussels IIbis Regulation. Recital (14) refers to relevant CJEU case law and clarifies that the term ‘court’ should be given a broad meaning so as to include administrative and ‘other authorities, such as notaries, who or which exercise jurisdiction in certain matrimonial maters or matter of parental responsibility’. Considering that the tasks and the role of notaries and other administrative authorities are far from 10 identical in EU Member States, it may prove difficult in practice to determine when they act as a ‘court’ within the meaning of Art. 2(2)(1) so as to render a ‘decision’ within the meaning of Art. 2(1). Relevant CJEU case law relating to other EU private international law instruments is illustrative of the difficulties in this respect.9 Introducing different schemes in the Recast for recognising ‘private divorces’ – one for those that can qualify as a ‘decision’ as opposed to those that can be characterised as an ‘authentic instrument’ or an ‘agreement’ – is likely to cause difficulties in practice and discrepancies in application amongst the Member States. 3. Decisions in matrimonial matters not falling within the scope a) Religious (unilaterally declared) divorces It follows from the CJEU case law that unilaterally declared religious divorces do not fall within the 11 scope of the Recast. In its judgment relating to Regulation No. 1259/2010 the CJEU held that it had to be a ‘divorce (…) pronounced by a national court or by, or under the supervision of, another public authority’ in order to fall within the scope of an EU legal instrument. It concluded that the EU legislator did not intend that that regulation should apply to such types of divorce which ‘are based on a “private unilateral declaration of intent” pronounced before a religious court’.10 The divorce was unliterally declared before a religious court in a non-Member State. Indeed, it offered no answer as to whether generally a divorce pronounced by a religious authority in 12 an EU Member State, which is not unilaterally declared, falls within the scope of the Recast. However, this does not seem to be of considerable relevance in practice, since such divorces are rather exceptional in EU Member States. An example can be found in divorce judgments rendered by the Moufti in Northern Greece pursuant to the sharia which may have legal effects after they are confirmed by a judgment of a competent state court.11 The importance of this question seems to have been further diminished by the introduction of socalled ‘private’ or ‘out-of-court’ divorces, which are principally consensual in nature, within the scope of the Recast. In more general terms, as long as a divorce pronounced by a religious authority meets the requirements that are applicable to such private divorces under the Recast and is confirmed and certified by a competent public authority communicated to the Commission in accordance with Art. 103, then such a divorce could fall within the scope of application of the Recast. Which of the procedural schemes would apply to the recognition of such a divorce would depend on how the relevant document is certified in the Member State of origin. The Court of Appeal of Frankfurt12 refused to apply the Brussels IIbis Regulation to a judgment issued by the Greek District Court confirming a Moufti judgment. The court held that the judgment of the Greek court did not oversee the contents of the Moufti’s judgment. Whilst this argument is still valid under the Recast in the sense that a decision does not comply with the definition of a ‘decision’, it is doubtful whether such an argument

9 See, e.g., Judgment of 23 May 2019, C-685/17, ECLI:EU:C:2019:444 (WB); Judgment of 16 July 2020, C-80/ 19, ECLI:EU:C:2020:569 (E.E.); Judgment of 9 March 2017, C-484/15, ECLI:EU:C:2017:199 (Zulfikarpasˇic´); Judgment of 9 March 2017, C-551/15, ECLI:EU:C:2017:193 (Pula Parking d.o.o.). 10 CJEU 20 December 2017, C-372/16, ECLI:EU:C:2017:988, (Sahyouni)para. 45. 11 Vassilakakis, The Impact of Substantive Law on the Material Scope of Application of Regulation Brussels IIbis, Public and Private International Law Bulletin, 2015, Vol. 35, Issue 2, p. 59. 12 OLG Frankfurt v. 16.1.2006, FamRBInt 2006, 77, IPRax 2008, 352.

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters could validly be raised if a document is certified as an ‘authentic instrument’ or an ‘agreement’, as will be detailed infra Art. 38 note 27 (Lazic´). 14

The provision of Art. 63 of the Brussels IIbis Regulation relating to decisions on a marriage annulment pronounced by the ecclesiastical courts in Italy, Spain and Portugal has been taken over in Art. 99 of the Recast. The latter provides that marriage annulment decisions by the ecclesiastical courts in Italy, Spain and Portugal rendered on the basis of relevant international treaties concluded between these countries and the Holy See shall be recognised in the Member States subject to the conditions laid down in Subsection 1 of Section 1 of Chapter IV. The Recast adds another international treaty in paragraph 2(c) of Art. 99 – the Agreement between the Holy Sea and Malta.13 b) Same-sex marriages

15

Neither the Regulation nor the Recast provide for a definition of a ‘marriage’. Whether same-sex marriages fall within the scope of the Brussels IIbis Regulation has been the topic of heated debate in the literature. The views in the literature vary, as well as the approaches taken in the practice of Member States. The same diversity of views exists with respect to the question of whether the concept of a ‘marriage’ should be determined by reference to national law or should be determined by an ‘autonomous interpretation’.14 The Recast does not introduce a definition of a ‘marriage’ either, but in the Annex the reference to a husband and wife has been replaced by the expression ‘spouse’. Some perceive this as a possible argument in support of the legislator’s intention to include same-sex marriages within the Recast’s scope of application.15

16

Additional arguments may be found in CJEU case law in other areas of law involving same-sex marriages,16 even though relevant decisions so far oblige Member States to enable the exercise of samesex rights under EU law, but do not generally impose an obligation to recognise same-sex marriages. After Coman, the CJEU rendered the V.M.A. judgment17 in the field of the free movement of citizens which is relevant for private international law aspects of family matters. The authorities in Bulgaria refused to issue a birth certificate to the child a Bulgarian national born in Spain, which was needed for the issuance of a Bulgarian identity document. The reason for this was the lack of information concerning the identity of the child’s biological mother and the fact that an indication of two female parents on a Spanish birth certificate was contrary to Bulgarian public policy, which did not permit same-sex marriages. The CJEU held that Bulgaria is under an obligation under EU law to recognise the Spanish birth certificate and that it cannot rely on the requirements under national law to refuse to issue the identity document since this document permits free movement. Like in the Coman case, the CJEU limited the obligation of Bulgaria to the requirement of free movement, i.e., the excise of the right which that child derives from EU law. However, this obligation does not require Bulgaria to

13 Art. 99(2)(c) reads: Agreement between the Holy Sea 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 third Additional Protocol of 27 January 2014. 14 See the results of an empirical research summarised in De Ruyck/Verhellen/Quinzá Redondo, ‘Chapter 6: Recognition and Enforcement in Matrimonial Matters’ in Lazic´ (ed.), Guide for Application of the Brussels IIbis Regulation, available at https://www.asser.nl/media/4649/m-5796-ec-justice-cross-border-proceedings-in-familylaw-matters-10-publications-02-guide-for-application-chapter-1.pdf, (2018), pp. 206 and 207. 15 Brosch/Mariottini, Facilitating Cross-Border Family Life: Towards a Common European Understanding, Report on the International Exchange Seminar, 20 December 2019, p.7. 16 E.g., CJEU judgment of 5 June 2018, C-673/16, ECLI:EU:C:2018:385 (Coman) relating to the interpretation of the Citizens’ Directive (2004/38/EC). In a similar vein, the Judgment of 1 April 2008, C-267/06 (Tadao Maruko/Versorgungsanstalt der deutschen Bühnen) involving a same-sex registered partnership, holding that not allowing a pension to be awarded to the surviving same-sex partner in a registered partnership was contrary to European law. See also, Gray/Schrama/Lazic´, ‘Brussels IIbis: Scope and Definitions’, Chapter 1, in Lazic´ (ed.), Guide for Application of the Brussels IIbis Regulation, available at https://www.asser.nl/media/4649/m5796-ec-justice-cross-border-proceedings-in-family-law-matters-10-publications-02-guide-for-application-chap ter-1.pdf, pp. 3–41, p. 5. 17 CJEU Judgment of 14 December 2021, C-490/20, ECLI:EU:C:2021:1008 (V.M.A.).

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provide in its national law for the parenthood of persons of the same sex or to recognise the parentchild relationship mentioned on a birth certificate issued by another Member State. In addition to such developments in CJEU case law, the number of EU Member States that recognise same-sex marriages has been growing during the last few years, even in those in which there is strong religious opposition thereto. In any case, in the absence of a definition of a marriage or another way of clearly including same-sex marriages within the scope of the Recast, a variety of views and approaches in theory and practice will remain.

17

The issue is particularly relevant with respect to international jurisdiction, since the recognition of 18 same-sex marriages enhances access to justice for these spouses. From the point of view of the recognition of a divorce it involves somewhat different considerations. Namely, the fact that a decision on divorce cannot be recognised under the Recast in some Member States is in itself of little consequence for former spouses. A same-sex marriage has no legal effects in those Member States anyway since they do not recognise such marriages. Accordingly, there is no need, strictly speaking, to recognise the effect of a decision on the dissolution of marriage. Indeed, most relevant is the recognition and effectiveness of a decision on other issues that may be 19 dealt with in a decision on divorce, especially those related to children. Therefore, whatever the state of the law on the validity and recognition of same-sex marriages may be in a particular Member State this should have no bearing on other aspects of a decision on divorce rendered by a court of a Member State as long as it falls within the substantive and temporal scope of application of the Recast. As such, these decisions are to be recognised and enforced according to the rules of the Recast regardless of the fact that a Member State of recognition does not permit same-sex marriages and regardless of the fact that it considers a dissolution of such a marriage to be outside the scope of the Recast. Also, in the context of the Brussels IIbis Regulation it was accepted that it applied to children living together, regardless of the nature of the legal relationship between the adults. Thus, matters of parental responsibility over children living with same-sex spouses or same-sex partners in a registered partnership fall within the Recast’s scope of application.18 c) Negative decisions The Recast in Recital (9) clarifies that decisions refusing the dissolution of matrimonial ties do not fall within the scope of the Recast and its provisions on recognition. It thereby expresses the prevailing view in the literature relating to the Brussels II scheme.19 Accordingly, only decisions that pronounce a divorce, a legal separation or an annulment can be the subject of recognition under the Regulation.

20

4. Posthumous and third-party nullity procedures In some Member States a petition for the annulment of a marriage can be filed after a spouse is deceased by his/her spouse and/or by a third party. Whilst the Borrás Report20 expressed the view that such annulments issued at the request of a spouse were not within the scope of Brussels II, it took no position with respect to third party requests for a marriage annulment. When deciding on jurisdiction the CJEU held that third-party nullity procedures did fall within the scope of the Brussels IIbis Regulation.21 In its normative part the Recast neither codifies the CJEU decision nor contains a provision which overrules it. It does not reflect on or rebut this position in any of the Recitals either. Pre18 Vassilakakis, The Impact of Substantive Law on the Material Scope of Application of Regulation Brussels IIbis, pp. 60 and 62; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 172. 19 See e.g., Mostermans, De wederzijdse erkenning van echtscheidingen binnen de Europese Unie NIPR 2002, p. 263; Wagner, Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel II-Verordnung, IPRax 2001, p. 76; Gaudemet-Tallon, Le Règlement 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. 406. The same follows from the Borrás Report, No. 60. 20 Borrás Report, No. 27. 21 CJEU Judgment of 13 October 2016, C-294/15, ECLI:EU:C:2016:772, (Edyta Mikołajczyk v. Marie Louise Czarnecka and Stefan Czarnecki).

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters sumably, if the legislator had intended to overrule the CJEU, it would have done so in the normative part of the Recast, as it did when reversing the state of the law shaped by some other CJEU decisions.22 5. Private divorces – definitions of an ‘agreement’ and an ‘authentic instrument’ a) Definition of an ‘agreement’ 22

The Recast includes certain types of ‘private divorces’ or, more generally, private agreements within its scope.23 It provides for a definition of an ‘agreement’ in Art. 2(2)(3). Such an agreement contained in a document which is not an authentic instrument can freely circulate amongst the EU Member States provided that it is registered with a public authority communicated to the Commission by the Member State for that purpose in accordance with Art. 103.24 In addition to the requirement of the involvement of a public authority in their conclusion, such agreements must have binding legal effect in the Member State of origin in order to be recognised or enforced under the Recast.25 A third condition which must be satisfied in order that an agreement may fall under the Recast follows from Art. 64 – compliance with the jurisdictional grounds contained in Chapter II.

23

Public authorities are to be given a broad meaning so as to ‘include notaries registering agreements, even where they are exercising a liberal profession’.26 The grounds in Art. 38 may be raised against the recognition of decisions, as defined in Art. 2(1), given by a ‘court’ as defined in Art. 2(2)(1). The same holds true for the grounds to refuse the recognition and enforcement of decisions in matters of parental responsibility contained in Arts. 39 and 41. b) Types of agreements falling within the scope of application

24

Which of the schemes for recognition and enforcement, thus also the grounds for refusal, apply to such agreements depends on the nature of the involvement of a public authority. It follows from Recital (14) that the following types of agreements will be within the scope of the Recast: 1) An agreement approved by a court or other competent authority after an examination as to its substance in accordance with the national law and procedure of a Member State. Such an agreement can be qualified as a ‘decision’ and consequently recognised and enforced according to the provisions applicable to decisions. This includes the grounds that can be raised against recognition and enforcement in Arts. 38, 39 and 41. 2) An agreement which includes a ‘formal’ intervention by the competent public authority of an EU Member State communicated to the Commission so that it can qualify as an authentic instrument. 3) An agreement which is neither a decision nor an authentic instrument but has been registered by a public authority.

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Accordingly, in order to freely circulate amongst the Member States an agreement must be at least registered with a competent public authority to be communicated to the Commission. Purely private

22 Examples can be found in Arts. 29(6) and 50 of the Recast which clearly alter the current state of the law created by the interpretation of the ‘overriding mechanism’ in the CJEU Povse judgment. For an in-depth analysis of revising the ‘overriding mechanism’ and reversing the interpretation in CJEU case law, see, Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels IIter, Yearbook of Private International Law, Vol XXII, 2020/2021, pp. 175–180. 23 For a commentary on this topic, see Kramme, Private Divorce in Light of the Recast of the Brussels IIbis Regulation, Zeitschrift für das Privatrecht der Europäischen Union (18/3) 2021, pp. 101–106; Bianchi et al., Agreements concluded by spouses in the matter of divorce or legal separation: the “dogma” of recognition and enforcement within the European area, Themis Annual Journal (1/1) 2019, pp. 108–135, at pp. 123–126. 24 Art. 46 of the Brussels IIbis Regulation is the only provision relating to authentic instruments or agreements. It merely provides that authentic instruments that have been formally drawn up, or registered and enforceable in one Member State, as well as agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments in the Member State of enforcement. 25 Art. 65. 26 Recital (14).

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agreements entered into without any involvement of a public authority do not fall under the Recast.27 Nevertheless, they may be recognised or enforced according to the national law of a Member State. c) Definition of an ‘authentic instrument’ Art. 2(2)(2) provides a definition of an ‘authentic instrument’ which closely follows the definition pro- 26 vided in the Brussels Ibis Regulation. From the point of view of the applicable schemes for recognition and enforcement, it is of little consequence whether a private divorce or another agreement is to be qualified as an ‘authentic instrument’ under Art. 2(2)(2) or an ‘agreement’ as defined in Art. 2(2)(3), since both are recognised and enforced under the same conditions provided in Section 4 of Chapter IV. This includes the grounds for refusal which are contained in Art. 68 and apply to the recognition and enforcement of both authentic instruments and agreements, as well as the scope of application as defined in Art. 64. d) Differences between a private divorce qualified as a ‘decision’ and those characterised as an ‘agreement’ or an ‘authentic instrument’ However, more problematic is whether a particular agreement is to be characterised as a ‘decision’ as 27 defined in Art. 2(1) in contrast to an ‘authentic instrument’ or an ‘agreement’ within the meaning of Art. 2(2)(2) and (3). As already explained, this characterisation depends on the nature of the involvement of a public authority. Although the grounds for refusal in Arts. 38, 39 and 41 (applicable to ‘decisions’) largely overlap with the grounds for refusal in Art. 68 (applicable to ‘authentic instruments’ and ‘agreements’) a distinct qualification may result in important differences in the conditions of recognition and enforcement, in particular the extent of the review over compliance with jurisdiction rules by the court in the Member State of recognition that follows from Art. 64, as will be detailed in the following paragraphs. Grounds for refusing recognition and enforcement in Art. 38, as well as in Art. 39, apply only with respect to ‘decisions’ rendered by the courts of EU Member States and not to the authentic instruments and agreements. Relevant provisions of Sections 1, 3 and 5 of Chapter IV apply to the enforcement of ‘decisions’ in matrimonial mattes and matters of parental responsibility. Authentic instruments and agreements are recognised and enforced in accordance with specific rules contained in Section 4. Thereby, the rules of Sections 1 and 3 apply analogously only to the extent that this is not otherwise provided for in the specific Section 4.

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e) No review of international jurisdiction when recognizing a foreign ‘decision’ Art. 69 expressly precludes the possibility to control the correctness of the decision on jurisdiction by 29 the court or other authority in a Member State of enforcement. Accordingly, an agreement which is qualified and consequently certified as a ‘decision’ in a matrimonial matter or a matter of parental responsibility is to be recognised and enforced according to the provisions of Chapter IV relating to decisions. In contrast, agreements certified as ‘authentic instruments’ or ‘agreements’ are to be enforced according to the provisions in a separate Section 4 of Chapter IV. Whilst the grounds for the refusal of recognition largely overlap with a few minor alterations in matters of parental responsibility as will be detailed, an important difference in the conditions for enforcement follows from Art. 64. f) An ‘authentic instrument’ and an ‘agreement’ – drawn or registered by an authority with international jurisdiction under the rules of the Recast Art. 64 defines the scope of application so as to provide that Section 4 applies to authentic instruments and agreements drawn up or registered by an authority in a Member State ‘assuming jurisdiction under Chapter II’ of the Recast. This wording implies that compliance with the grounds of jurisdiction of the Recast is a condition for relying on its scheme of recognition and enforcement. In other words, the court or another authority in the Member State of enforcement may refuse to apply 27 Recital (14).

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters the Recast if a court or another authority in the Member State of origin did not have international jurisdiction according to the rules of the Recast in Chapter II. 31

Consequently, the court in the Member State of the enforcement of an agreement certified as an ‘authentic instrument’ or an ‘agreement’ may review the decision on the jurisdiction of the court of origin, whereas such control is excluded when recognising or enforcing an agreement certified as a ‘decision’. In other words, review by the court in the Member State of recognition is more extensive under the enforcement scheme applicable to authentic instruments and agreements, although in a different setting: it does not result in the refusal of recognition, but in the refusal to apply the Recast. Which of the enforcement schemes applies will depend on the characterisation, i.e., the type of certificate issued in the Member State of origin. g) Characterisation of a ‘private divorce’

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A number of EU Member States have introduced ‘private divorces’ or more generally the possibility for the parties to agree on arrangements in matters of family law.28 Considering the variety in the types of ‘private divorces’, divergencies in the ways of their characterisation are likely to occur. This is particularly so considering the distinct roles that notaries may have in different Member States. As already outlined, Recital (14) clarifies that a ‘court’ may include notaries. However, CJEU case law illustrates that difficulties may be encountered in determining whether a notary has actually acted as a ‘court’ in certain circumstances.29 What should be decisive for the characterisation of a private agreement is the nature of the involvement and the true role of a notary or other public authority.

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Reviewing compliance with jurisdiction rules in the enforcement scheme for authentic instruments and agreements may be justified by reason of the diversity in national laws, the fact that such agreements have only recently become part of legislation in some EU Member States and most importantly by the diversity in the extent and the nature of the involvement of a public authority amongst Member States.30

III. Limited control over and a strict interpretation of the grounds in the Member State of recognition and enforcement 1. List of grounds for refusal of recognition is exhaustive 34

In general, the grounds for refusing recognition and enforcement in EU private international law instruments are to be interpreted narrowly.31 The requirement of a strict interpretation applies in equal measure to the grounds in Arts. 38 and 39. Recognition and enforcement is based on mutual trust and the grounds for the refusal of recognition are to be kept to the minimum required.32 The list of grounds is exhaustive, so that it is not possible to invoke any ground which is not listed in the relevant provisions of the Recast. The latter confirms in Recital (56) the current state of the law created

28 For a comparative overview, see Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels IIter, Yearbook of Private International Law, Vol XXII, 2020/2021, pp. 155–182, at pp. 160–164. See also Bogdzevicˇ/Kaminiskiene˙/Vaigo˙, Non-judicial Divorces and the Brussels IIbis Regulation: To Apply or not Apply?, International Comparative Jurisprudence (7/1) 2021, pp. 31–39, http://dx.doi.org/10.13165/j.icj.2021. 06.003. 29 See, e.g., the CJEU case relating to Regulation 650/2012: Judgment of 23 May 2019, C-685/17, ECLI:EU:C: 2019:444 (WB); Judgment of 16 July 2020, C-80/19, ECLI:EU:C:2020:569 (E.E.). Similar questions were raised in connection with other EU legal instruments, such as the European Enforcement Order and Brussels Ibis, Judgment of 9 March 2017, C-484/15, ECLI:EU:C:2017:199 (Zulfikarpasˇic´) and Judgment of 9 March 2017, C-551/15, ECLI:EU:C:2017:193 (Pula Parking d.o.o.) respectively. 30 In a similar sense, González Beilfuss, What is New in Regulation (EU) No 2019/1111?, Yearbook of Private International Law (22) 2020/2021, p. 103. 31 CJEU judgment in Renault/Maxicar, para 26; see also, CJEU of 16 July 2015, C-681/1, ECLI:EU:C:2015:471 (Diageo Brands), para 41, both relating to the Brussels I regime. 32 CJEU Judgment of 19 November 2015, C-455/15 PPU, EU:C:2015:763 (P), para 35.

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by the CJEU that a violation of the lis pendens rule may not be invoked as a ground since it is not listed amongst the reasons for the refusal of recognition and enforcement.33 2. Prohibition of reviewing the decision on international jurisdiction The court may not refuse to recognise or enforce a decision due to the lack of international jurisdiction or an incorrect application of the jurisdiction rules of the Recast, since neither of the two reasons is amongst the grounds in Arts. 38, 39 or 41. Moreover, Art. 69 expressly prohibits the courts in the Member State of recognition from reviewing the jurisdiction34 or the control over the correctness of a decision on jurisdiction by the courts in the Member State of origin. The same holds true if an ‘agreement’ is qualified as a ‘decision’. As already explained, a lack of international jurisdiction based on the Recast may result in declining to apply the Recast in case the recognition or enforcement of an ‘authentic instrument’ or ‘agreement’ is requested.

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3. Prohibition of reviewing the decision on the merits (prohibition of révision au fond) Besides, controlling the decision on the merits of the case in another Member State is expressly ex- 36 cluded in Art. 71 (the prohibition of révision au fond). Only a conceivable departure from the prohibition of any review of the substance could be a public policy exception. Considering that the latter has to be construed narrowly, such an exception could only be justified if a decision infringes upon the legal order in such a manner that the infringement would ‘constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order’.35 The preclusion of a review of jurisdiction and control over a decision as to its substance is not an innovation. Corresponding provisions are contained in Arts. 24 and 26 of the Brussels IIbis Regulation. The same holds true for Art. 70, which expresses the same message as Art. 27 of the Brussels IIbis Regulation. Thus, the recognition of a decision in matrimonial matters may not be refused because the law of the Member State of recognition would decide differently on the same facts so as not to allow a divorce, legal separation or a marriage annulment.

IV. Grounds for the refusal of recognition in matrimonial matters under Art. 38 Like its predecessor, the Recast retains distinct provisions on the grounds for the non-recognition of decisions relating to matrimonial matters (Art. 38) and those relating to parental responsibility (Art. 39). Even though the grounds for the non-recognition of decisions relating to matrimonial matters and those relating to parental responsibility are not identical under the Recast, some of them do overlap. This is the case with the public policy exception and the requirement of due process.

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1. Public policy exception During the negotiations on revising Brussels Ibis the abolition of exequatur captured the most atten- 38 tion. Amongst the most extensively debated issue was the idea of giving away entirely the possibility of reviewing judgments in a Member State of enforcement, in a manner as it was done in a number of other EU legal instruments. The idea of removing the public policy exception from the list of grounds proved to be most problematic and was met with severe opposition, despite the generally accepted view on a narrow interpretation of the public policy exception. Therefore, it is not surprising that the same approach of retaining the grounds for refusing recognition, including the public policy exception, was followed when revising the Brussels IIbis Regulation. Particularly in the more sensitive

33 CJEU Judgment of 16 January 2019, C-386/17, ECLI:EU:C:2019:24 (Liberato). 34 The same is true under the Brussels IIbis Regulation, see, e.g., CJEU Judgment of 9 November 2010, C-296/ 10, EU:C:2010:665 (Purrucker), para 85. 35 CJEU judgment of 16 July 2015, C-681/1, ECLI:EU:C:2015:471 (Diageo Brands), para 44, relating to the public policy exception in corresponding provision of the Brussels I Regulation.

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters area of family law it is reasonable to retain the reviewing role of the courts in the Member State of enforcement.36 a) A decision ‘manifestly’ contrary to public policy 39

Generally, public policy is rarely successfully invoked37 as a reason to refuse recognition in different private international instruments. The requirement that a decision has to be ‘manifestly’ contrary to public policy presumes that a public policy exception is to be construed narrowly and interpreted strictly.38 In principle, it can be successfully invoked only in exceptional circumstances when recognition or enforcement would run contrary to the basic principles and fundamental values of the legal order of the Member State of recognition. This follows from the relevant CJEU case law relating to the Brussels Ibis enforcement regime, which is in equal measure relevant in this context as well. As a matter of principle, it is appropriate to apply the interpretation of the CJEU in a consistent manner in both Regulations.39 Nevertheless, the analogy in interpretation is not automatic, but should be adhered to only when a particular concept serves identical or comparable purposes and aims in both legal instruments40.41

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Considering the wording of the relevant provisions, as well as the comparable purposes and aims of the public policy exception, it is appropriate to analogously apply relevant CJEU case law relating to the Brussels I regime when interpreting this concept under the Recast. This especially holds true for the landmark decision in Krombach42 which establishes the basic standards for a) the nature of the breach that meets the standards of a public policy exception interpreted strictly and b) the role of the CJEU in reviewing its limits. As to the former, the public policy exception may be relied upon only when recognition ‘would be at variance to an unacceptable degree with the legal order’ of the Member State of recognition ‘inasmuch as it infringes a fundamental principle …’ of this legal order. The infringement has to constitute a manifest breach of a rule of law regarded as essential or of a right recognised as fundamental in the legal order of the Member Sate of enforcement.43 b) Role of the CJEU in reviewing the limits of the public policy exception

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As to the role of the CJEU in interpreting the public policy exception, the CJEU has held that Member States are in principle free to determine the requirements of their public policy according to their own conceptions and that it is not for the CJEU to define the public policy of a Member State. However, the CJEU will review the limits within which the courts of a Member State resort to the public 36 See also, Scott, A question of trust? Recognition and enforcement of judgments, NIPR 2015 No. 1, p. 29. 37 Hess/T. Pfeiffer, Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law, Microsoft Word – pe453189_en.doc (europa.eu). 38 Judgment of 19 November 2015, C-455/15 PPU, EU:C:2015:763 (P), para 36. 39 In a similar vein, the Borrás Report in No. 6 suggests that identical concepts should be interpreted in the same manner as expressed in the relevant CJEU case law. 40 In a similar sense, it is suggested that generally careful consideration should be employed before an analogy in interpretation is adhered to by Oderkerk, in Koens/Vonken(eds.), Personen- en familierecht, Tekst & Commentaar, 11th ed., p. 2985. 41 There are legal concepts that are part of both legal instruments, but complete consistency in interpretation is inappropriate. Prorogation of jurisdiction is one such example, since it has a different purpose in each of the Regulations. Therefore, the motives for replicating the reversal of the lis pendens rule in the Recast are difficult to understand for a couple of reasons. Firstly, in contrast to commercial transaction, pre-dispute choice of court agreements in matters of parental responsibility will seldom be concluded, if ever. Secondly, the reversal of the lis pendens rule in the Brussels Ibis Regulation is mainly intended to enhance the effectiveness of exclusive pre-dispute choice of court agreements. The rule on reversed lis pendens does not apply to non-exclusive agreements. In contrast, pre-dispute prorogation clauses under the Recast are not exclusive, but are concurrent. Under the Recast exclusive in nature are only post-dispute choice of court agreements. The reversed lis pendens rule can hardly have any relevance for such agreements, in particular if they have to be concluded in the course of proceedings in order to be exclusive. Consequently, complete consistency in application and interpretation in the CJEU case law is unlikely and inappropriate. 42 CJEU Judgment of 28 March 2000, C-7/98 [2000] ECR I-1395 (D. Krombach v. A. Bamberski). 43 CJEU Judgment of 28 March 2000, C-7/98 [2000] ECR I-1395 (D. Krombach v. A. Bamberski) para 37.

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policy exception.44 When defining these limits, the CJEU will be guided by the constitutional traditions common to the Member States, as well as by international treaties on the protection of human rights to which the Member States are parties, especially the ECHR Convention. A strict interpretation of the public policy exception is required not only when the norms of national law have been violated but also when the norms of EU law have been misapplied.45 Thus, an incorrect application of either national law or EU law in itself is not sufficient to qualify as a public policy exception. It must be an error of law of such a degree that granting recognition or enforcement would result in a manifest breach of an essential rule of law in the EU legal order and consequently in the legal order of the Member State of enforcement.46 An error in application or interpretation must be contrary to the EU legal order to such an unacceptable degree that it would infringe one of its fundamental principles.47

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c) Strict interpretation of public policy exception The public policy exception in Arts. 38(a) and 39(a) may not be invoked in the case of a violation of the rules on jurisdiction laid down in Arts. 3 to 14, as this is expressly precluded in Art. 69.

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There is a rather clear message from the CJEU case law that the public policy exception cannot be used 44 to cover irregularities which are not listed amongst the reasons for refusing recognition or enforcement in Arts. 38, 39 and 41. Thus, the CJEU unsurprisingly, although regrettably, held in the Liberato judgment48 that a violation of the lis pendens rule did not qualify as a public policy exception under the Brussels IIbis regime. This is not entirely unexpected since already in the context of the Brussels I regime the CJEU in the TNT Express Nederland judgement49 held that a violation of the lis pendens rule was not a reason to refuse enforcement, even though it did not expressly decide on lis pendens as not qualifying for a public policy exception. However, what is common in both CJEU judgments is the inappropriate decision that the lis pendens rule is a rule on jurisdiction which may not be reviewed by the court of enforcement. In the TNT Express Nederland judgement such a review was not permitted even when a treaty having prevalence in application over the Regulation according to Art. 71 of the Brussels I Regulation provided for the possibility to review international jurisdiction at the enforcement stage. It is regrettable that the EU legislator has not used the opportunity of revising or altering the current state of the law created by the relevant CJEU judgments, so as to ensure that the lis pendens rule shall be respected.50 Instead, Recital (56) clearly reaffirms the Liberato judgment by reiterating the exhaustive nature of the grounds and indicting that a violation of the lis pendens rule may not be invoked to refuse recognition and enforcement.

44 CJEU Judgment of 28 March 2000, C-7/98 [2000] ECR I-1395 (D. Krombach v. A. Bamberski) para 23. The same line of reasoning was followed in the CJEU judgment of 16 July 2015, C-681/1, ECLI:EU:C:2015:471 (Diageo Brands), para 42 (holding that the CJEU was required to ‘review the limits within which the courts of a Member State may have recourse to that concept’). 45 E.g., Renault/Maxicar, C-38/98, EU:C:2000:225 para 32; Diageo Brands, para 48. 46 Diageo Brands, para 50. 47 Diageo Brands, para 51 (Diageo). 48 CJEU Judgment of 16 January 2019, C386/17, ECLI:EU:C:2019:24 (Liberato). 49 CJEU Judgment of 4 May 2010, C-533/08, ECLI:EU:C:2010:243 (TNT Express Nederland BV). However, it seems that opposite views have been expressed suggesting that there is discrepancy between the treatment of lis pendens by the CJEU case law relating to the Brussels I regime, referring to the harsh interpretation in the Gasser v. Missat C-116/02 judgment in which lis pendens was given prevalence over the efficiency of proceedings or the prorogation clause. See a summary of the views in Brosch/Mariottini, Facilitating Cross-Border Family Life: Towards a Common European Understanding, Report on the International Exchange Seminar, 20 December 2019, p. 13. 50 See also the conclusion of the discussion on this point during an Exchange seminar, in Brosch/Mariottini, Facilitating Cross-Border Family Life: Towards a Common European Understanding, Report on the International Exchange Seminar, 20 December 2019, p. 13.

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters d) Violations of substantive and procedural law 45

The public policy exception may be invoked for violations pertaining to both substantive and procedural law. A violation of the basic principles of procedural law, such as the requirement of due process enshrined in Art. 6 of the ECHR and in Art. 47 of the Charter of Fundamental Rights of the EU, represents an infringement of public policy. The same holds true for violations of other fundamental rights protected by the ECHR. In addition to the due process requirement, particularly relevant are the fundamental rights to respect for family life under Art. 8 of the European Convention on Human Rights and Art. 7 of the Charter of Fundamental Rights of the European Union (the Charter), as well those protecting the rights of the child, to mention just a few.

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As for substantive law issues, considering that developments in family law in this respect both at the international and national level are pursued at a different pace and in distinct directions, it is likely that sensitive issues such as surrogacy, same-sex marriages, and the status of children of same-sex parents may give rise to public policy implications amongst EU Member States. e) Examination of public policy exception

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Generally, it is for the national law of a Member State to determine whether the grounds are to be examined ex officio or only upon an application by a party.51 The same holds true for the public policy exception as a ground for refusal. However, the ECtHR has ruled that the Contracting States have an obligation to review whether a foreign decision satisfies the rights granted by the provisions of the Convention.52 Accordingly, it could be argued that this ruling implies an ex officio examination of potential violations of fundamental rights protected by the ECHR.

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In contrast to the ‘due process and fair trial’ requirement under Arts. 38 and 39 (1)(b), there is no express indication as to whether an unequivocal acceptance of a decision results in the non-applicability of the public policy exception as a ground for refusal. It seems appropriate that this would also depend on the national law of a Member State. It follows from the relevant CJEU case law that a party that has failed to use the legal remedies available in a Member State of origin to challenge a decision may not invoke the public policy ground to oppose enforcement in another Member State.53 2. Violation of the ‘due process and fair trial’ requirement

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Recital (62) of the Recast emphasises that abolishing the exequatur should not jeopardise respect for the rights of defence of the person against whom enforcement is sought. This is a fundamental right of procedural law and is protected as such in Art. 6 of the ECHR. The ECtHR has ruled that the principles of mutual trust and mutual recognition referred to in Art. 67 of the TFEU may not run contrary to any fundamental right such as the principle of due process and fair trial under Art. 6 of the Convention.54 Such a serious violation of basic principles of procedural law as described in Arts. 38(1)(b) and 39(1)(b) in principle also qualifies as a violation of public policy.55 a) Decision given in default proceedings

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This provision is intended to ensure that the person in default is given a fair opportunity to participate in the proceedings and is in a position to arrange for his or her defence. This ground has been replicated with no changes from the Brussels IIbis Regulation. Art. 38(1)(b) provides that a decision given in default of appearance may be refused recognition if the person in default was not served with 51 52 53 54

Recital (62). ECtHR judgment of 20 July 2001, Appl. No. 30882/96 Pellegrini v Italy. See e.g., CJEU judgment of 25 May 2016, C-559/14, ECLI:EU:C:2016:349 (Meroni) and Diageo Brands. ECtHR judgment of 25 February 2014, Appl. No. 17502/07 Avotins v Latvia relating to the 1968 Brussels Convention. 55 In the literature it has been argued that providing this as a separate ground for refusal is not necessarily redundant, since its application is ensured without the need to examine whether it meets the criterion of ‘manifestly’ contravening fundamental values of a legal order in the Member State of enforcement. Scott, A question of trust? Recognition and enforcement of judgments, p. 32.

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a document initiating the proceedings or a corresponding document in sufficient time and in such a manner so as to enable him or her to organise a defence. The ground of violating due process and a fair trial may only be relied upon when the respondent 51 has not appeared, i.e., when a decision has been taken in default proceedings. Such a respondent may rely on this ground if he or she was not duly notified of the commencement of the proceedings. Thus it is required that the service must be duly and timely effected. Accordingly, thisground for refusal of the recognition may be invoked if he or she was not served with the document instituting the proceedings or an equivalent document in sufficient time or in a proper way so as to provide an ample opportunity to arrange a defence. Consequently, an improper service per se is not sufficient to qualify for this ground to refuse recognition. Instead, it must have resulted in depriving the defendant of the opportunity to organise his/her defence. However, this will not present a ground to refuse recognition if that person has accepted the decision unequivocally. An identical reason for refusal is contained in Art. 39 containing the grounds for refusing the recognition and enforcement of a decision in matters of parental responsibility.

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b) Proper service of a document initiating the proceedings or an equivalent document In addition to the possibility to examine compliance with this fundamental principle of defence at 53 the enforcement stage, the Recast, in a manner that is similar to the Regulation, provides for safeguards to ensure compliance with this fundamental right before the competent court in the Member State of origin. First of all, Art. 19, which is identical to Art. 18 of the Brussels IIbis Regulation, requires the court of the Member State of origin to stay proceedings until it is demonstrated that the requirements of due process, e.g., proper service and sufficient time to arrange for a defence, have been fulfilled when a respondent habitually resides in a Member State other that the State where the proceedings have been instituted. With respect to proper service, the Recast in paragraphs 2 and 3 of Art. 19 refers to the standards of the Service Regulation when service is to be effected in a Member State. When service is to be effected outside the EU, i.e., when the Service Regulation is inapplicable, the 1965 Hague Convention on the Taking of Evidence applies. When the latter is inapplicable, other international instruments or the national rules of the country of his or her habitual residence determine the means of effecting service. If the party has his or her habitual residence in the Member State where proceedings are pending, ser- 54 vice is effected in accordance with the rules of civil procedure in that Member State. This ground may be relied upon only in the case of an incorrect service of a document initiating the proceedings and not in the case of deficiencies in the service of other documents issued in the course of the proceedings.

55

In the case of the enforcement of decisions the Recast provides for an additional safeguard to ensure 56 compliance with the requirement of due process in Art. 55. Since decisions in matters of the dissolution of marriage are not subject to enforcement, this provision will be addressed infra, in the context of Art. 39. c) Service in sufficient time to organise a defence Even though the way in which service was effected was considered to be proper in the Member State where the decision was rendered, the court in the Member State of enforcement is still required to examine whether service was effected in good time to enable the defendant to arrange for his or her defence.56 As a matter of principle, the period to prepare for a defence starts to run from the date on which the relevant document was duly served. However, it must be considered ‘whether, in a particular case, there are exceptional circumstances such as the fact that, although service was duly effected, it was inadequate for the purposes of causing that time to begin to run.’57

56 CJEU Judgment of 16 June 1981, C-166/80 Klomps v Michel [1981] ECR 1593, point 5 of the ruling. 57 CJEU Judgment of 16 June 1981, C-166/80 Klomps v Michel [1981] ECR 1593, point 6 of the ruling.

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Art. 38 Brussels IIter Grounds for refusal of recognition of decisions in matrimonial matters 3) Irreconcilable decisions – Art. 38(1)(c) and (d) 58

The purpose of the lis pendens rule in Art. 20 of the Recast is to prevent parallel proceedings and consequently conflicting and irreconcilable decisions. Nevertheless, it can happen that courts in different Member States render decisions which are irreconcilable or contradictory, either because the courts had no knowledge of the concurrent proceedings or because the lis pendens rule had been misapplied. a) Distinction between irreconcilable decisions in matrimonial matters and in matters of parental responsibility

59

Art. 38(1)(c) and (d) and the corresponding provision for parental responsibility in Art. 39(1)(d) and (e) determine which of the decisions rendered in parallel proceedings will be given effect in the Member State of enforcement. Although this ground for refusal is amongst the reasons for the refusal of the recognition and enforcement of decisions in matters of parental responsibility, they do not follow the same approach in resolving the effectiveness of irreconcilable decisions, as will be addressed infra, in the context of Art. 39. b) Meaning of irreconcilability

60

Irreconcilable decisions are decisions which entail ‘legal consequences that are mutually exclusive’.58 If a foreign decision reaches the same conclusion as the domestic decision, there is no irreconcilability. According to Art. 38(1)(c) and (d) the two decisions must be between the same parties, but it does not mention that they have to relate to the same causes of action. The same holds true for Art. 20 containing the lis pendens rule. Thus, a decision on divorce is irreconcilable with a decision on a marriage annulment and vice versa. According to the Borrás Report, legal separation is not irreconcilable with divorce, but a decision on divorce or on a marriage annulment is irreconcilable with a decision on legal separation.59 In the former case, if a subsequent decision on divorce is requested in the country where a legal separation has been granted earlier, the recognition of a later divorce judgment is not irreconcilable with the legal separation so that the recognition of a divorce may not be refused in the Member State in which a legal separation was previously granted.

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According to the Borrás Report, in the reverse situation – when the recognition of the decision on a legal separation granted later is requested in a Member State where a decision on divorce or marriage annulment is rendered earlier, the decision on legal separation is irreconcilable with an earlier decision on divorce or a marriage annulment. This line of argumentation is appropriate if a decision on legal separation is given later. However, it may not necessarily be appropriate in circumstances when a decision on the legal separation has preceded the decision on divorce. This is particularly so if the recognition of legal separation is requested because of certain legal effects in the period between the decision on the legal separation and the decision on divorce. In such a case, there is no irreconcilability, since the decision on divorce produces legal effects only after the date it has been rendered.60 c) Irreconcilability of a foreign decision with a domestic decision

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There is a different treatment when a foreign decision is irreconcilable with a domestic decision in the Member State of recognition and when it is irreconcilable with another foreign decision. A foreign decision in a matrimonial matter may be refused recognition if it is irreconcilable with a decision given by the court in the Member State of recognition, regardless of which of the two is rendered first.61 The prevalence of the domestic decision is preserved regardless of whether an irreconcilable foreign decision relates to a matter falling within the scope of the Recast. If a decision on a matrimonial matter is refused recognition as being irreconcilable with a domestic decision, but contains a de58 CJEU Judgment of 4 February 1988, C-145/86 [1988] ECR 654 (Hoffmann v. Kreig) para 22. 59 Borrás Report, para 71. 60 In a similar vein Oderkerk in Koens/Vonken (eds.), Personen- en familierecht, Tekst & Commentaar, 11th ed., p. 2987. 61 See also Borrás Report, para 71.

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cision on another matter of family law, such as parental responsibility or maintenance, the irreconcilability of the latter will be determined according to relevant provisions applicable to such matters.62 d) Irreconcilability of two foreign decisions Where two foreign decisions are sought to be recognised, recognition is to be granted to the earlier decision between the same parties, provided that it meets the requirements for recognition in that Member State.

Article 39 Grounds for refusal of recognition of decisions in matters of parental responsibility 1. The recognition of a decision in matters of parental responsibility shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the best interests of the child; (b) 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 decision unequivocally; (c) upon application by any person claiming that the decision infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard; (d) if and to the extent that it is irreconcilable with a later decision relating to parental responsibility given in the Member State in which recognition is invoked; (e) if and to the extent that it is irreconcilable with a later decision 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 decision fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked; or (f) if the procedure laid down in Article 82 has not been complied with. 2. The recognition of a decision in matters of parental responsibility may be refused if it was given without the child who is capable of forming his or her own views having been given an opportunity to express his or her views in accordance with Article 21, except where: (a) the proceedings only concerned the property of the child and provided that giving such an opportunity was not required in light of the subject matter of the proceedings; or (b) there were serious grounds taking into account, in particular, the urgency of the case. I. Preliminary remarks . . . . . . . . . . . . . . 1. Decisions against which the grounds in Art. 39 may be invoked . . . . . . . . . . . . . 2. Limited control in a Member State of recognition and enforcement . . . . . . . . . .

1 5 7

II. Grounds for the refusal of recognition . . . . 8 1. Public policy . . . . . . . . . . . . . . . . . . . . 9 Best interests of the Child . . . . . . . . . . . . 10 2. A violation of the ‘due process and fair trial’ requirement and a failure to give an opportunity to be heard to a party claiming the infringements of his or her parental responsibility . 12

3. Irreconcilable decisions . . . . . . . . . . . . . 4. Violation of the procedure for the placement of the child in another Member State . . . . . 5. Child not being given an opportunity to express his or her views – ground to refuse recognition of a ‘decision’ . . . . . . . . . . . . a) Exceptions . . . . . . . . . . . . . . . . . . . b) Child not being given an opportunity to express his or her views – ground to refuse recognition of a ‘authentic instrument’ and an ‘agreement’ . . . . . . . . . . . . . .

15 17

18 20

22

62 In a similar vein Magnus/Mankowski/Siehr, Brussels IIbis Regulation(2017), p. 274, para 41.

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I. Preliminary remarks 1

The Recast substantially revises the provisions relating to parental responsibility. Abolishing the exequatur, expanding the types of decisions that fall within its scope and a substantial alteration of the ‘overriding mechanism’ in child abduction cases can be mentioned amongst the most pertinent amendments. Although the list of grounds in Art. 39 has largely been preserved, the types of decisions against which these grounds may be raised have been expanded to a greater extent than in matrimonial matters.

2

The Recast abolishes the exequatur for all decisions in matters of parental responsibility but maintains distinct enforcement schemes, including different grounds for the refusal of enforcement: one for certain privileged decisions – those relating to access rights and decisions overturning non-return orders – and another for all other decisions. As for the latter, although it does away with exequatur, the Recast in Art. 39 takes over all the grounds for refusal under Brussels IIbis, with some slight adjustments. Moreover, besides the reasons for refusal under Art. 39, Art. 41 further expands the list of grounds that may be invoked against the enforcement of decisions in matters of parental responsibility and child abduction.

3

The wide list of grounds in Art. 39 remains inapplicable to certain ‘privileged decisions’. The recognition and enforcement of the latter is provided in a separate Section 2 of Chapter IV. Although this enforcement scheme is still more favourable, it has been adjusted in the Recast so as to weaken the shortcomings of the scheme in which, except irreconcilability, there is no possibility of opposing enforcement. This will be further briefly elaborated infra, under Art. 41.

4

Just as under the Brussels IIbis Regulation, under the Recast all decisions in matters of parental responsibility rendered by courts in EU Member States, accompanied by appropriate certificates, will be recognised in other Member States as domestic decisions without any special procedure being required.1 As has already been addressed in the context of Art. 38, an interested party may apply for a decision that there are no such grounds against recognition under Art. 39,2 whereas a party opposing the enforcement may file an application for the refusal of recognition invoking these grounds.3 1. Decisions against which the grounds in Art. 39 may be invoked

5

The grounds in Art. 39 may be raised against the recognition of a ‘decision’ as defined in Art. 2(1) given by a ‘court’ as defined in Art. 2(2)(1). The relevant part of the discussion in the context of Art. 38 applies here as well. This is particularly so with respect to the definitions of a ‘court’, a ‘decision’, an ‘authentic instrument’ and an ‘agreement’, in so far as private agreements are permitted under national law. The same holds true with respect to the temporal and substantive scope of application, as well as the relevance of characterisation for the applicability of the enforcement schemes and consequently the extent of control in a Member State of recognition.

6

Besides including private agreements, the Recast widens the types of decisions falling within its scope. Since the provisions on enforcement are relevant for these decisions, extending the scope in that respect will be addressed infra, in the context of grounds for the refusal of enforcement under Art. 41. 2. Limited control in a Member State of recognition and enforcement

7

Everything stated supra concerning the limited control in the Member State of recognition, such as the exhaustive nature of the grounds, the prohibition of reviewing a decision both with respect to jurisdiction and with respect to its substance, is applicable with respect to decisions in matters of parental responsibility. Recognition and enforcement are based on the principle of mutual trust. Thus, the reasons for refusing recognition ‘should be kept to the minimum in the light of the underlying aim of this Regulation which is to facilitate recognition and enforcement and to effectively protect the best interest of the child’.4 Herewith the Recital (55) confirms the relevant EUCJ case law.5 1 Art. 30 para 1. 2 Art. 30 para 3. 3 Art. 40 para 1.

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II. Grounds for the refusal of recognition Some of the grounds for the refusal of recognition in Arts. 38 and 39 are identical or largely overlap- 8 ping. This is the case with the public policy exception and the requirement of due process. Accordingly, everything stated in the context of Art. 38 paragraphs 1 and 2 applies in equal measure with respect to the refusal to recognise decisions in matters of parental responsibility under Art. 39. However, these grounds are addressed here in so far as the corresponding provisions relating to matters of parental responsibility deviate from the concepts that are applicable in matrimonial matters or require additional considerations. In particular, the ground relating to the irreconcilability of decisions will be briefly addressed since it does not operate in an identical manner under Arts. 38 and 39. The public policy exception will be addressed to the extent that this concept is affected by the requirement to take the ‘best interests of the child’ into consideration. 1. Public policy The provision on the public policy exception to the recognition of decisions in parental responsibility in the Recast has remained unchanged. It largely follows the wording of Art. 38(1)(a). Accordingly, the discussion in the context of Art. 38(1)(a) applies in equal measure with respect to the public policy exception under Art. 39(1)(a). Accordingly, an analogous application of the relevant CJEU case law under the Brussels I regime is relevant here, as well.6 The public policy exception, as well as other grounds in Art. 39, applies in relation to the recognition and enforcement of decisions in matters of parental responsibility.

9

Best interests of the Child Although the provision on the public policy exception in Art. 39(1)(a) is in its first part identical to Art. 38(1)(a), it is adjusted by the wording ‘taking into account the best interest of the child’. There is no definition of this concept in the Brussels IIbis and in the Recast, but the notion of the best interests of the child permeates through the whole Recast. In its normative parts, this is not only a standard of crucial relevance within the provisions on recognition and enforcement, but this is also an important point of reference within the rules on jurisdiction. The same holds true for the Recitals. Thus, Recital (19) refers to Art. 24 of the Charter Charter of Fundamental Rights of the European Union7 and to the Convention on the Rights of the Child.8 Moreover, the idea of strengthening the rights of the child and bringing the Regulation further into line with the Convention was amongst the intentions of the EU legislator when revising the Brussels IIbis Regulation.9

4 Recital (55). 5 P v Q, C-455/15 PPU, EU:C:2015:763 (Fourth Chamber). For a comment see, p. 730. Beaumont/Trimmings, Court of Justice of the European Union’s Case Law on Family Law Matters Under Brussels IIa and Maintenance, in Beaumont/Danov/Trimmings/Yüksel (eds.), Cross-Border Litigation in Europe (2017), 711–740. Studies in Private International Law. Bloomsbury Collections. Web. 15 Aug. 2018. http://dx.doi.org/10.5040/ 9781782256793.ch-041. 6 See e.g., CJEU Judgment of 19 November 2015, C-455/15 PPU, ECLI:EU:C:2015:763 (P v Q). In para (38) the CJEU distinguished the relevant provisions on the public policy exception in both Regulations by invoking the best interests of the child under the Brussels II regime and in para (39) applied the criterion on the strict interpretation of this notion in the CJEU case law relating to the Brussels I regime. 7 OJ 2000, C364/1. On the best interests of the child in the Brussels IIbis and the Recast, see Lazic´, The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation, in S. Iglesias Sánchez/M. González Pascual (eds.), Fundamental Rights in the EU Area of Freedom, Security and Justice (2021), pp. 192–210 and more generally in EU legal instruments, see Nikolina, The Influence of International Law on the Issue of Co-Parenting: Emerging Trends in International and European Instruments, Utrecht Law Review, 2012 8(1) 122. 8 Convention on the Rights of the Child 1577 UNTS 3 (1989). 9 COM (2016) 411 final (n 10) 12.

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Art. 39 Brussels IIter Refusal of recognition of decisions in matters of parental responsibility 11

However, inconsistency in the interpretation of the concept of the best interests of the child often causes difficulties in its application.10 Despite the fact that the legislative framework of the Brussels IIbis Regulation is shaped by the concerns for the best interests of the child,11 some of its provisions have failed to achieve the envisaged aims.12 The Recast introduces a number of amendments with the purpose of better protecting children’s rights in cross-border parental responsibility cases.13 2. A violation of the ‘due process and fair trial’ requirement and a failure to give an opportunity to be heard to a party claiming the infringements of his or her parental responsibility

12

The ground contained in Art. 39(2)(b) is identical to that in Art. 38(1)(b), so that the same line of argumentation applies in cases involving the recognition and enforcement of decisions relating to parental responsibility. Particularly relevant in the context of enforcement is the additional means to ensure that no enforcement measure is taken before the relevant certificate, if necessary accompanied by the decision, is served on the person against whom enforcement is sought. Thereby this party has an effective remedy, including the possibility to commence proceedings to challenge the enforceability of the decisions before the actual commencement of enforcement.14

13

However, Art. 39 in paragraph 1(c) provides an additional ground for refusal in cases in which a person claiming a violation of his or her parental responsibility has not been given the opportunity to be heard.

14

The grounds in Art. 39 also apply in order to oppose the enforcement of decisions in matters of parental responsibility. With respect to the requirement of due process in enforcement proceedings, the Recast provides for additional safeguards in Art. 55. It imposes the obligation to serve the appropriate certificates on the person against whom enforcement is sought before the first enforcement measure may be taken. The certificate shall be accompanied by the decision if it was not already served. In this way, it is assured that there will be an opportunity to raise the objection of a violation of due process prior to any enforcement measure. 3. Irreconcilable decisions

15

The irreconcilability of decisions is a reason for refusing recognition under Arts. 38 and 39. However, it does not function in the same way with respect to foreign decisions in matrimonial matters and in matters of parental responsibility. In matrimonial cases it is an earlier foreign decision that prevents the recognition of a subsequently rendered foreign decision. It reflects the res judicata effect, the notion that ensures legal certainty that a final decision on the same matter between the same parties may not be overridden in subsequent proceedings.

16

However, in the case of irreconcilable decisions in the context of matters of parental responsibility, prevalence is to be given to a later decision. Decisions in matters of parental responsibility often need to be adjusted or altered due to changed circumstances or if the measures taken or the decision pre10 De Boer/Kotting, Kinderontvoering en het Belang van het Kind, in De Krant van het Kind, Liber Amicorum Prof. Mr. Miek de Langen (Gouda Quint 1992). 11 The latter has appropriately been referred to as the notion of the best interests of the child in abstracto, in Carpaneto, Impact of the Best Interests of the Child on the Brussels IIter Regulation, available at https://cam bridge.com/core/terms. 12 CJEU Judgment of 1 July 2010, C-211/10 PPU, ECLI:EU:C:2010:400 (Povse v. Alpago); CJEU 22 December 2010, C-491/10 PPU, ECLI:EU:C:2010:828 (Aguirre Zarraga v. Pelz) are examples illustrating the inappropriateness of the so-called overriding mechanism under the Brussels II bis Regulation’s regulatory scheme. It is meant to operate in the best interests of the child, but it has failed to achieve the intended aim. 13 In striking a proper balance between the best interests of the child in abstracto and these rights in concreto, the role of the CJEU is rightly perceived as crucial to develop consistent practice when interpreting the best interests of the child in concreto, see Carpaneto, Impact of the Best Interests of the Child on the Brussels IIter Regulation, p. 285. See also Biagioni/Carpaneto, Children under Brussels II ter Regulation, Yearbook of Private International Law, Vol. 22 (2020/2021) p. 140. 14 Recital (64).

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viously rendered appear to be no longer appropriate or fail to serve the best interests of the child. As stated in Recital (56), in matters of parental responsibility ‘a later decision always supersedes an earlier with effect for the future to the extent that they are irreconcilable’, be it domestic or a foreign decision. As for the latter, it will prevail provided that it fulfills the conditions necessary for its recognition in the Member State of recognition or enforcement. 4. Violation of the procedure for the placement of the child in another Member State The Recast in Art. 82 lays down the procedure for the placement of the child in another Member State. A violation of this procedure presents a ground for the refusal of recognition and enforcement according to Art. 39(1)(f). Although in its Proposal15 the Commission omitted this ground, it has been retained in the Recast.

17

5. Child not being given an opportunity to express his or her views – ground to refuse recognition of a ‘decision’ In its Proposal the Commission suggested to omit this reason from the list of grounds for the refusal of recognition and enforcement. Presumably, the idea was that the authority exercising jurisdiction would ensure that the child would be given an opportunity to be heard and provide a proper certificate in that respect. It would be for the authorities in the Member State of recognition or enforcement to rely on mutual trust that such an opportunity was actually provided.16 It is rather surprising that the Commission opted for this approach which had already been introduced in the Brussels II bis Regulation in the context of privileged decisions and had shown considerable shortcomings in practice. This is particularly so in cases of the so-called ‘overriding mechanism’ where there were examples of decisions being certified as ‘privileged’ although the child had not been heard.17 The fact that such a decision, which has failed to guarantee that a child has been given a genuine opportunity to be heard, may not be refused enforcement does not reflect the best interests of the child.18

18

Since abandoning the possibility to review whether the child has been given a proper opportunity to 19 be heard in all decisions in matters of parental responsibility would put at risk the protection of this child’s rights, it is to be met with approval that the hearing of the child has been retained amongst the grounds for refusing recognition and enforcement.19 In addition, it is likely that the absence of the possibility to review this ground at the enforcement stage would result in inconsistences in application amongst the Member States. It is rather likely that the authorities in Member States that attach great importance to the hearing of the child would be inclined to interpret a failure to hear the child as a violation of public policy.20 a) Exceptions This ground has been retained in the Recast in Art. 39 paragraph 2, but it introduces some exceptions 20 when the hearing of the child may not be invoked as a ground for refusing recognition or enforce15 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, p. 1 (hereinafter: 2016 Commission’s Proposal). 16 Beaumont, Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations, 29 Child and Family Law Quarterly (3), 2017, pp. 213–232, at p. 223. 17 CJEU Judgment of 22 December 2010, C-491/10 PPU, ECLI:EU:C:2010:828 (Aguirre Zarraga v. Pelz). 18 See also Beaumont, p. 223. 19 More generally on this reason for refusing recognition and enforcement, see, Hazelhorst, Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial (2017), p. 49; Ubertazzi, The right of the child to be heard in the Brussels system, European Papers, Vol. 2, no. 1, 2017, pp. 43–74. 20 This was also suggested by the research team in Lazic´ et al., in Lazic´ (ed.), Recommendations To Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union, p. 63, https://www.asser.nl/media/4662/m-5796-ec-justice-cross-bor der-proceedings-in-family-law-matters-10-publications-00-publications-on-asser-website-recommendations. pdf p. 31.

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Art. 39 Brussels IIter Refusal of recognition of decisions in matters of parental responsibility ment. Thus, it cannot be relied upon if the decision only relates to the child’s property and if giving an opportunity to express the child’s view was not required in light of the subject matter or if ‘there were serious grounds taking into account (…) the urgency of the case’.21 Recital (57) indicates, for the purposes of examples, circumstances that may point to the urgency of the case, such as an imminent danger to the child’s life or physical and psychological integrity and ‘any further delay might bear the risk that this danger materializes’. 21

It is for the court of a Member State in which the child is heard to decide on the appropriate method for hearing a child. Therefore, the fact that the court of origin has used a method of hearing different from the method used in the Member State of enforcement should not be a reason to refuse recognition of the decision of the court of origin.22 b) Child not being given an opportunity to express his or her views – ground to refuse recognition of a ‘authentic instrument’ and an ‘agreement’

22

The discussions relating to authentic instruments and agreements in the context of matrimonial matters apply in equal measure with respect to matters of parental responsibility insofar as such agreements are permitted in the national law of a Member State, including the scope of application determined in Art. 64 of the Recast.

23

The grounds in Art. 39 apply when the recognition or enforcement of a ‘decision’ in matters of parental responsibility is requested, but not to authentic instruments and agreements. The grounds for refusal of recognition and enforcement of the latter are contained in Art. 68 paragraphs 2 and 3. They largely overlap with those in Art. 39 with two exceptions. Thus, violation of ‘due process’ as defined in Art. 39(1)(b) is not amongst the grounds in Art. 68. Another difference concerns the child not been given an opportunity to express his or her views as expressed in Art. 68 paragraph 3 as a reason to refuse recognition. Firstly, the exceptions provided under Art. 39(2)(a) and (b) in which this reason may not be invoked to refuse recognition or enforcement are not found in Art. 68. More importantly, this ground contained in paragraph 3 of Art. 68 uses the wording ‘may be refused’ in contrast to the mandatory language ‘shall be refused’ as used in paragraphs 1 and 2. Most likely it is the permissive language ‘may’ that caused a rather confusing explanation in Recital (71). It states that even though there is no obligation for the authorities to provide the child with the opportunity to express his or her views when issuing authentic documents and agreements, ‘the right of the child to express his or her views should continue to apply pursuant to Art. 24 of the Charter and in light of Art. 12 of the UN Convention on the Right of the Child, as implemented by national law and procedure’. However, it then still concludes that the fact that the child has not be given that opportunity ‘should not automatically be a ground of refusal of recognition and enforcement of authentic instruments and agreements in matters of parental responsibility’. Consequently, it follows that even though this is a right that should be respected on the basis of relevant international treaties, a failure to grant this right does not necessarily result in the refusal of recognition and enforcement.

24

It is not clear what are the reasons for the discrepancy in applying and interpreting this fundamental right of the child.23 A problem that is likely to be encountered in practice is the uncertainty on how the child will be given the opportunity to express his or her views considering that private agreements are concluded without the intervention of a judicial authority.24

21 Art. 39(2)(b). 22 Recital (57). 23 For further criticism and, inter alia, questioning of the normative value of the Recitals, see González Beilfuss, What is New in Regulation (EU) No 2019/1111?, Yearbook of Private International Law (22) 2020/2021, pp. 102–103. 24 Bianchi et al., Agreements concluded by spouses in the matter of divorce or legal separation: the “dogma” of recognition and enforcement within the European area, Themis Annual Journal (1/1) 2019, pp. 108–135, at pp. 127.

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Article 40 Procedure for refusal of recognition 1. The procedures provided for in Articles 59 to 62 and, where appropriate, Section 5 of this Chapter and Chapter VI shall apply accordingly to an application for refusal of recognition. 2. The local jurisdiction of the court communicated by each Member State to the Commission pursuant to Article 103 shall be determined by the law of the Member State in which proceedings for non-recognition are brought.

General remarks The procedure for an application to refuse the recognition of decisions in matrimonial matters and 1 matters of parental responsibility is dealt with in Art. 40. The same procedure is followed when a party submits an application that there are no grounds for refusal under Art. 30 para 3.1 In both cases, a party makes an application according to the selected provisions followed when an application for the refusal of enforcement is submitted. Namely, both Art. 30 para 3 and 40 para 1 refer to the same provisions relating to the enforcement of decisions unified in Section 3, in particular Arts. 59 to 62.2 Besides, Section 5 of Chapter IV, as well as the General Provisions contained in Chapter VI, also apply where such an analogous application appears to be appropriate in a procedure for recognition. Accordingly, the analysis of the provisions referred to in Art. 40 para 1 applies with equal measure to applications to the effect that there are no grounds for the refusal of recognition in Arts. 38 and 39. 1. Procedure for the refusal of recognition When a request for the refusal of recognition is submitted, selected provisions on the enforcement procedure that are unified in Section 3 of Chapter IV apply analogously. These are provisions in Arts. 59 to 62 which deal with the procedure for making an application, expeditious procedures and challenges and appeals against a decision on the application for enforcement.

2

Thus, the application has to be submitted to the authority or court that is competent for enforcement and must be accompanied by a copy of the decision and an appropriate certificate. The latter is for a decision in matrimonial matters as set out in Annex II and for a decision in matters of parental responsibility in Annex III.3 The obligation to produce these documents may be lifted if the competent authority is already in possession thereof or when it considers it unreasonable to require the applicant to produce them.4

3

An applicant may be requested to provide, where necessary, a translation or transliteration of the translatable content of the free text fields of the appropriate certificate.5 A translation or transliteration of the decision may only be requested if the competent authority is unable to proceed without it.6 There is no requirement for an applicant to have a postal address in the Member State where recognition is requested. An authorised representative may be required to be appointed only if such a representative is mandatory under the law of the Member State of recognition.7

4

In addition to Arts. 59 to 62, Section 5 of Chapter IV and Chapter VI apply to the extent that such an application is appropriate in the procedure for the refusal of recognition. Besides provisions relating to costs, legal aid and security, bonds or deposits in Arts. 73, 74 and 75, respectively, Section 5 of Chapter IV contains a number of provisions which significantly restrict the controlling role of the

5

1 Arts. 30 para 3 and Art. 40 para 1 of the Recast. 2 Art. 59 deals with applications for the refusal of enforcement, Art. 60 relates to expeditious procedures, whereas Arts. 60 and 61 concern challenges or appeals against a decision on enforcement and further instances of challenges or appeals respectively. 3 Art. 59 para 2. 4 Art. 59 para 5. 5 Art. 59 para 3. 6 Art. 59 para 4. 7 Art. 59 para 6.

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Art. 40 Brussels IIter Procedure for refusal of recognition court in the Member State of enforcement. Thus, there is a general prohibition of reviewing jurisdiction in the Member State of origin according to Art. 69. It is thereby expressly excluded to invoke the public policy exception under Arts. 38 and 39 to question jurisdiction. Also, it is precluded to review a decision as to its substance,8 as well as to decline the recognition of a decision in matrimonial matters because a divorce, legal separation or a marriage annulment would not be permitted under the law of the Member State of recognition.9 6

The provisions of Section 5 of Chapter IV need to satisfy the criterion of ‘appropriateness’ in order to be applied within the context of Art. 40.10 Arts. 69 and 71 certainly meet that requirement whenever an application for the refusal of recognition or enforcement is submitted or where a request that there are no grounds for refusal in Arts. 38 and 39 is filed. In the same vein, Art. 70 is obviously meant to apply in cases involving the recognition of decisions in matrimonial matters. The same ‘appropriateness’ filter is to be used with respect to an analogous application of the General Provisions of Chapter VI to the application for the refusal of recognition.

7

The local jurisdiction is to be determined by the law of the Member State where the proceedings to refuse recognitions are brought. According to Art. 103, each Member State has to communicate to the Commission which court has local jurisdiction. 2. Application for a decision that there are no grounds to refuse recognition

8

As already mentioned, just as under the Brussels IIbis Regulation, under the Recast Art. 30 paragraph 1 no special procedure is required for the recognition of decisions in matrimonial matters – divorce, marriage annulment and legal separation and matters of parental responsibility. However, a party may have a legal interest in that a decision either on matrimonial matters or on matters of parental responsibility has legal effects in another Member State, since such decisions may affect some other legal rights and entitlements, such as inheritance, or the authority to undertake legal acts or transactions on behalf of the child.11 Under Brussels IIbis when an interested party requests such recognition in a separate proceeding, this follows the procedure for exequatur. The Recast has abolished exequatur, but an interested party may apply for a decision that there are no grounds for the refusal of recognition.12 When doing so, the party follows the same procedure as when a request for refusing enforcement is filed, as described supra, in the preceding section.13 Who can be considered as an interested party is up to the national laws of the Member States.14

9

Selected provisions on the enforcement procedure unified in Section 3 of Chapter IV, in particular Arts. 59 to 62, analogously apply when an application is submitted for a decision that there are no grounds for the refusal of recognition as referred to in Arts. 38 and 39. The same holds true for Section 5 of Chapter IV and the general provisions of Chapter VI, which apply when this appears to be appropriate. Therefore, the present analysis relating to Art. 40 is relevant for applications under Art. 30 paragraph 3.

10

Just as in the case of applications for non-recognition, when an application for a decision that none of the grounds for the refusal of recognition under Arts. 38 and 39 exist, the local jurisdiction is to be determined according to the law of the Member State in which such an application has been filed. The information on the local jurisdiction is to be communicated to the Commission in accordance with Art. 103.

8 9 10 11 12

Art. 71. Art. 70. The same holds true for the application under Art. 30 para 3. Scott, A question of trust? Recognition and enforcement of judgments, p. 29. Exceptionally in the literature, it is referred to as a ‘partial’ abolition on exequatur, Kruger, The Disorderly Infiltration of EU Law in Civil Procedure, Netherlands International Law Review (NILR) (2016) 63:1-22, p. 14. 13 Art. 30 para 3. 14 Recital (54).

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Article 41 Grounds for refusal of enforcement of decisions in matters of parental responsibility Without prejudice to Article 56(6), the enforcement of a decision in matters of parental responsibility shall be refused if one of the grounds for refusal of recognition referred to in Article 39 is found to exist. I. Preliminary remarks . . . . . . . . . . . . 1. Abolishing the exequatur . . . . . . . . . . 2. Decisions against which the grounds for refusing enforcement may be raised . . . . a) Definitions of a ‘decision, an ‘authentic instrument’ and an ‘agreement’ . . . . . b) Decisions in child abduction cases . . .

. . . .

1 4

. .

9

. . 9 . . 10

c) Provisional measures within the enforcement scheme . . . . . . . . . . . . . . . . 3. Grounds to refuse enforcement . . . . . . . . a) Grounds in Art. 39 . . . . . . . . . . . . . b) Grounds under national law . . . . . . . c) Ground under Art. 56(6) – a grave risk of physical or psychological harm to the child . . . . . . . . . . . . . . . . . . . . .

. . . .

11 14 15 16

. 18

I. Preliminary remarks The Recast considerably reshapes the enforcement scheme, especially with respect to matters of parental responsibility and child abduction cases. Whilst under the legal framework of the Brussels IIbis Regulation no exequatur is required for only so-called ‘privileged decisions’, the Recast abolishes the requirement of obtaining a declaration of enforceability for all decisions on parental responsibility. Consequently, a decision given by the court of a Member State is to be treated as if it has been rendered by the court of a Member State of enforcement.1

1

Yet, despite abolishing exequatur, it maintains different enforcement schemes for ‘privileged deci- 2 sions’ and other decisions in matters of parental responsibility. The two types of ‘privileged decisions’- those granting access rights and those overturning ‘non-return’ orders in child abduction cases – are still given more favourable treatment.2 They are recognised and enforced according to the rules contained in Section 2 of Chapter IV. Accordingly, the reasons for the refusal of enforcement under Art. 39 referred to in Art. 41 may not be invoked in the enforcement of such ‘privileged decisions’. Art. 50 contains a sole reason to refuse their recognition and enforcement. This is the irreconcilability of a decision with a later decision concerning the same child given in the Member State of recognition or in a state of the child’s habitual residence which fulfils the conditions for recognition in the Member State of the enforcement. Although at first sight this provision may seem to be merely a clarification of Art. 47 of the Brussels IIbis Regulation, it represents a substantial amendment to the legislative scheme prior to the Recast and its interpretation in the CJEU Povse3 judgment. Since the CJEU has held that irreconcilability could only be invoked if there was a subsequent irreconcilable decision rendered by the court in the Member State of origin, the Recast has reversed the rule created by this judgment. Together with introducing an additional ground for refusal of enforcement in Art. 56 paragraph 6 and other alterations introduced by the Recast, it represents a significant improvement to the so-called ‘overriding mechanism’ in child abduction cases.4 1 2 3 4

Recital (58). Recital (58). CJEU Judgment of 1 July 2010, C-211/10 PPU, ECLI:EU:C:2010:400 (Povse v. Alpago). The ‘overriding mechanism’ or a ‘second chance’ has been widely criticised in the literature. See e.g., Hazelhorst, The ECtHR’s Decision on Povse: Guidance for the Future of the Abolition of Exequatur for Civil Judgments in the European Union, NIPR 2014, p. 27; Beaumont/Walker/Holliday, Not Heard and Not Returned: The Reality of Article 11(8) Proceedings, International Family Law, 2015, p. 124; Kruger/Samyn, Brussels IIbis: successes and suggested improvements, Journal of Private International Law (12/1) 2016, pp. 158–159; McEleavy, The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?, Netherlands International Law Review (62) 2015, p. 373; Lazic´, The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation in Iglesias Sánchez/González Pascual (eds.), Fundamental Rights in the EU Area of Freedom, Security and Justice (2021), pp. 192–210. CJEU judgment in Povse is illus-

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Art. 41 Brussels IIter Parental responsibility – grounds for abolishing the exequatur 3

Even though the enforcement scheme for decisions overturing ‘non-return’ orders remains distinct from the framework that applies to other decisions in matters of parental responsibility and is still given a more favourable treatment, it has become less stringent compared to the Brussels IIbis Regulation, especially in terms of the grounds for refusal. In addition to adjusting irreconcilability as briefly explained above, the additional ground referred to in Art. 41 applies to all decisions in matters of parental responsibility, including ‘privileged decisions’. This is the reason for the refusal of enforcement mentioned in Art. 56(6), which will be detailed infra, in section 3.c). 1. Abolishing the exequatur

4

The abolition of the exequatur for all decisions within its substantive, territorial and temporal scope is a major change in the Recast. It is no longer required to obtain a declaration of enforceability before an actual enforcement procedure may be initiated as was the case under the Brussels IIbis Regulation. Consequently, all decisions in matters of parental responsibility rendered by the court of a EU Member States which have become enforceable and which are accompanied by the appropriate certificates will be enforced5 in other Member States in the same manner as their domestic decisions.6 Such decisions may freely circulate amongst the EU Member States. The abolition of the exequatur is justified by mutual trust in the administration of justice in the EU with the aim of enhancing efficiency in cross-border litigation concerning children.7

5

Even though the exequatur has been abolished, Art. 41 still retains all the grounds that can be raised in appellate proceedings against the declaration of enforceability under the Brussels IIbis Regulation. They are now contained in Art. 39. Moreover, it even expands this list. The possibility to invoke them has been transferred to the actual enforcement proceedings.

6

By retaining the current list of reasons for refusing enforcement, the Recast follows the path of abolishing the exequatur in the Brussels Ibis Regulation. During the recast of the Brussels I Regulation, unsurprisingly the issue of abolishing the exequatur was amongst the most controversial issues. It is not the idea of abolishing the immediate procedure for obtaining a declaration of enforceability as such that was the focus of the debates. Rather it was the idea of removing the grounds or rigorously reducing them in a manner which was similar to some other areas, such as maintenance.8 Particularly dubious is the appropriateness of entirely excluding a review of whether a foreign judgment fulfils the basic requirements for recognition and enforcement, such as compliance with the requirement of due process or whether it entails public policy violations.9 Such exclusion proved problematic in the application of some legal instruments that had already abolished exequatur. This especially holds true for the enforcement scheme for ‘privileged decisions’ under the Brussels IIbis Regulation, which demonstrated considerable deficiencies in practice.10 Moreover, an obligation for an ECHR Member State to confirm that a foreign judgment does not contradict ECHR rules follows from the relevant ECtHR caselaw.11

5 6 7 8 9 10 11

trative of deficiencies in practice. Regrettably, the Recast has retained the ‘overriding mechanism’, but has also introduced a number of significant adjustments. In addition to the amendment of the refusal of recognition and enforcement in Article 50, there are other alterations to alleviate the shortcomings encountered in practice, especially certain adverse consequences of the Povse judgment. Thus, Article 29(6) is an important improvement as it adjusts the current state of law shaped in Povse so as provide that a decision on the return must be taken together with a decision on custody. The same holds true for a new ground to refuse enforcement in Article 56(6) which applies to all decisions in matters of parental responsibility. Art. 34 para. 1. Recital (58). Recitals (54) and (58). See, e.g., Beaumont/Johnston, Can Exequatur be Abolished in Brussels I whilst Retaining a Public Policy Defence, Journal of Private International Law, Vol. 6, No. 2, p. 248, at p. 252 et seq. See e.g., Cuniberti, The recognition of Foreign Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance and Efficiency, 57 International and Comparative Quarterly, 25 (2008) p. 50. CJEU judgments in CJEU 1 July 2010, C-211/10 PPU, ECLI:EU:C:2010:400 (Povse v. Alpago) and CJEU 22 December 2010, C-491/10 PPU, ECLI:EU:C:2010:828 (Aguirre Zarraga v. Pelz). Pellegrini v Italy, ECtHR of 20 July 2001, Appl. 3088/96.

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The fact that both Regulations unify the same private international law issues, each within its own substantive field of application, may be perceived as another argument in favour of choosing the same approach when abolishing the exequatur.12 This is particularly so bearing in mind that family law matters may involve sensitive issues based on cultural differences and traditions, so that there are even stronger motives to retain the possibility of invoking some grounds at the enforcement stage, especially an exception to public policy.

7

The Recast thereby further contributes to the existing diversity of enforcement schemes in other EU private international law legal instruments in family and related matters – those abolishing exequatur with a strictly limited list of grounds,13 those abolishing exequatur whilst maintaining all grounds that could have been invoked against a declaration of enforceability14 and those still requiring the exequatur.15 Such a variety of recognition and enforcement systems accompanied by the multiplicity of legal sources in the field of family law and related matters16 is likely to prove challenging for legal practitioners.

8

12 A number of other provisions are also shaped in line with the corresponding provisions of the Brussels Ibis Regulation, such as a definition of provisional measures falling with the Regulation’s enforcement scheme, … Even though consistency amongst different EU legal instruments is generally desirable, it is not always appropriate to take over automatically certain legal concepts or their adjustments. Taking over a provision on reversing the rule of lis pendens with respect to prorogation clauses is a clear example illustrating how inappropriate it may be to replicate a rule without having examined the rationale justifying it. First of all, prorogation clauses are not necessarily identical concepts with the same aims and purposes under the two legal instruments. For criticism on this point, see Lazic´, Recognition and enforcement of decisions in the revised Brussels IIbis Regulation, NIPR 2021 No. 4, pp. 729 et seq., at p. 733 and 734. Furthermore, the appropriateness of the revised rule on lis pendens in the Brussels Ibis Regulation may be questioned. For an analysis and criticism of this rule in the Brussels Ibis Regulation by the present author, see in Lazic´/Kruisinga, Prorogation of Jurisdiction: Validity Requirements and Methods of Interpretation, in Benicke/Huber (eds.), National, international, transnational: harmonischer Dreiklang im Recht: Festschrift für Herbert Kronke zum 70. Geburtstag (2020), pp. 269–274. 13 E.g., enforcement scheme for ‘privileged decisions’ under the Recast and Maintenance Regulation, except Denmark (the exception of the UK became irrelevant after Brexit). On the relationship between Brussels IIbis and the Maintenance Regulation, see Beaumont, Interaction of the Brussels IIa and Maintenance Regulations with (Possible) Litigation in Non-EU States: Including Brexit Implications, in Viarengo/Villata (eds.), Planning the Future of Cross Border Families. A Path Through Coordination, Studies in Private International Law, Vol. 29, (2020), pp. 331–343. There is no review of decisions of a court in the Member State of origin as to whether the requirements of ‘due process’ have been adhered to or whether there are violations of public policy. For more particulars on the enforcement of maintenance decisions, see, Viarengo, The Enforcement of Maintenance Decisions in the EU: Requiem for Public Policy? Family Relationships and the (Partial) Abolition of Exequatur, in P. Beaumont et al. (eds.), The Recovery of Maintenance in the EU and Worldwide (2014), p. 473. 14 Enforcement scheme of other non-privileged decisions in matters of parental responsibility in the Recast. 15 Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes; Regulation (EU) 2016/1104 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 (both in OJ 2016, L 183/1-56); and 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 2012, L 201/107–134). 16 When applying the Recast, family law judges, lawyers and other practitioners are likely to need to apply some other EU legal instruments, such as 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 2009, L 7/1–79); Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and Regulation (EU) 2016/1104 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 (both in OJ 2016, L 183/1-56); 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 2013, L 181/4–12); 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 2012, L 201/107-134).

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Art. 41 Brussels IIter Parental responsibility – grounds for abolishing the exequatur 2. Decisions against which the grounds for refusing enforcement may be raised a) Definitions of a ‘decision, an ‘authentic instrument’ and an ‘agreement’ 9

The analysis relating to the definitions of a ‘court’, an ‘authentic instrument’ and an ‘agreement’ applies here, as well as in so far such agreements are permitted with respect to parental responsibility in different EU Member States. Agreements which are certified as ‘decisions’ will be enforced in accordance with Sections 1–3 and 5 of Chapter IV. The grounds contained in Arts. 39, 76(6) and 57 may be raised against enforcement. Agreements certified as ‘authentic instruments’ and ‘agreements’ are enforced according to the provisions in Section 4 of Chapter IV. The grounds for a refusal contained in Art. 68 are similar to those in Art. 39 with two exceptions, as is briefly explained supra, under II.5.b). The possibility of applying distinct criteria to review jurisdiction that may follow from Art. 64 applies in equal measure to agreements qualified as ‘authentic instruments’ or ‘agreements’, in so far as such agreements are permitted in matters of parental responsibility. b) Decisions in child abduction cases

10

Besides adding ‘agreements’ to the scope of application, the Recast expands the list of decisions in matters of parental responsibility which fall within its enforcement scheme. Thus, decisions rendered in child abduction cases are expressly inserted amongst the decisions that are enforceable under the Recast. In Art. 2(1)(a) it provides that decisions on the return of a child taken under to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘1980 Hague Convention’) qualify as a ‘decision’ that is enforceable in other Member States under Chapter IV of the Recast. Recitals (5) and (16) reflect the relevant CJEU case law,17 clarifying that return proceedings are not proceedings on the substance of parental responsibility but are closely related thereto. In addition, it follows from Art. 19 of the 1980 Hague Convention that decisions on the return of the child shall not be considered as a determination on the merits of any custody issue. The inclusion of decisions on the return of the child brought under the Convention within the scope of application of the Recast is an important improvement. Such decisions can benefit from the enforcement scheme of the Recast when their enforcement is needed in another Member State because of a further abduction after the return order has been made.18 c) Provisional measures within the enforcement scheme

11

In a manner similar to the Brussels Ibis Regulation, the Recast clarifies in Art. 2(1)(b) which decisions on provisional measures are enforceable in other Member States.19 For the sake of an easier application, it refers to Art. 15 relating to provisional measures. Just like under Brussels Ibis, the enforcement scheme of Chapter IV of the Recast may be used when there is a request for the enforcement of provisional, including protective, measures issued by a court that has jurisdiction on the merits of the case.

12

In addition, within the scope of application of the Recast is a provisional measure that a court in the Member State of refuge may issue when ordering the return of the child according to Art. 27. It has the aim of protecting the child from the grave risk of physical or psychological harm within the

17 CJEU judgment of 11 July 2008, C-195/08 PPU, ECLI:EU:C:2008:406, 159 (Rinau) para. 76. 18 Recital (16) of the Recast. 19 The present author and the research team in their comments to the 2016 Commission Proposal already expressed their preference for following the approach used in the Brussels Ibis Regulation with the necessary adjustment needed to ease application in practice in Lazic´ et al., Recommendations – To Improve the Rules on Jurisdiction and on the Enforcement of Decisions in Matrimonial Matters and Matters of Parental Responsibility in the European Union, as part of the final output of the project entitled ‘Cross-Border Proceedings in Family Law Matters before National Courts and CJEU’, funded by the European Commission’s Justice Programme (GA – JUST/2014/JCOO/AG/CIVI/7722), https://www.asser.nl/media/4662/m-5796-ec-justice-crossborder-proceedings-in-family-law-matters-10-publications-00-publications-on-asser-website-recommenda tions.pdf.

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Art. 41 Brussels IIter

meaning of Art. 13(1) of the 1980 Hague Child Abduction Convention, which would be a reason to refuse a return. Such measures should not unduly delay the return proceedings. They are enforceable in all EU Member States, including the Member State having jurisdiction under the Recast until the latter has taken measures that it considers appropriate. They could include a decision that the child is to reside with the primary care giver or may concern the way in which contact with the child is to take place after the child’s return.20 The reasons for the refusal of enforcement in Arts. 39, 56(6) and 57 may be raised against such provisional measures. Expanding the scope in this way is to be met with approval because the protective measures will ‘follow the child’ when returning to the Member State of his/her habitual residence immediately before a wrongful removal or retention and will be enforceable there as domestic decisions.21 The effectiveness of provisional measures ordered by a court in a Member State which does not have jurisdiction as to the substance of the matter is limited to the territory of this Member State. Such measures are not given extraterritorial effect they may not freely circulate amongst EU Member States and do not fall within the scope of application of the Recast. Defining which types of decisions on provisional measures are enforceable under the Recast is an important improvement, as it resolves uncertainties in that matter ensuing from the relevant CJEU case law. Like under the Brussels Ibis Regulation, provisional measures issued in ex parte proceedings may also be enforced under the Recast, provided that the decision on the measure is served on the respondent prior to enforcement.

13

3. Grounds to refuse enforcement As already briefly indicated, Art. 41 expands the list of grounds to refuse the enforcement of decisions. In addition to the grounds listed in Art. 39, it refers to Art. 56(6). The latter is not found amongst the reasons in the Brussels IIbis Regulation. Since the reasons under the Recast may be invoked in an actual enforcement procedure, the grounds that exist under national law may be raised as well, as long as they are not incompatible with Arts. 41 and 56. Accordingly, the following ‘group’ of grounds may be invoked against enforcement: 1) the reasons for the refusal of recognition under Art. 39, 2) the reasons under Art. 56(6), and 3) grounds which exist in national law.

14

a) Grounds in Art. 39 Whether the grounds for refusal are to be raised by a party or ex officio is left to the national law of the Member States. The same holds true for determining who can be considered as an interested party that is entitled to submit an application that there are no grounds for the refusal of recognition listed in Art. 39.22 Everything stated in the commentary to these grounds applies in equal measure in the case of a refusal of enforcement.

15

b) Grounds under national law A party opposing enforcement should, within the limits of the legal framework of the Member State of enforcement, be in a position to raise all grounds within one and the same enforcement procedure. This includes the grounds that may be available under the national law of the Member State of enforcement to the extent that they are not incompatible with the grounds in Arts. 39 and 56(6).23 For the purpose of providing examples, Recital (63) mentions a number of potential grounds that could be raised under national law, such as challenges based on formal errors, the impossibility of enforcement due to force majeure, the serious illness, death or imprisonment of the person to whom the child is to be handed over, the outbreak of a war after a decision on the return of the child has been

20 Recital (46) of the Recast. 21 See also, Jurik, Le “nouveau” Règlement Bruxelles II ter: le changement, ce n’est pas pour maintenant!, Journal d’actualité des droits européens, 30 October 2019, https://revue-jade.eu/article/view/2934. 22 Recital (54). 23 Recital (63).

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Art. 41 Brussels IIter Parental responsibility – grounds for abolishing the exequatur made or if the judgment subject to the enforcement does not have any enforceable content and cannot be adjusted. 17

The application of any ground under national law should not operate so as to extend the conditions and modalities of the grounds provided in the Recital.24 c) Ground under Art. 56(6) – a grave risk of physical or psychological harm to the child

18

This is a new reason which has been introduced in the Recast and is referred to in Art. 41. It applies in addition to the grounds in Art. 39. If there is a grave risk of physical or psychological harm to the child due to temporary impediments which have occurred after the decision was given or because of any other significant change of circumstances, enforcement may be suspended under Art. 56 paragraph 4. According to paragraph 6, where such a grave risk of physical or psychological harm becomes of a lasting nature, the enforcement may be refused upon an application by a party.

19

This is a rather substantial modification of the current enforcement scheme of the Brussels IIbis Regulation. Even though it may undermine mutual trust, the motive of protecting the best interests of the child by extending the list due to the reason contained in Art. 56(6) should be given prevalence over policy considerations. However, some concerns have been expressed in the literature to the effect that introducing this additional ground may result in further delays and may weaken the efficiency of return proceedings.25

20

A decision on the refusal of enforcement under paragraph 6 should not be taken easily. Instead, a thorough examination and assessment of the relevant circumstances should precede any such decision, as follows from the wording of paragraph 5. Most importantly, it requires that the authority that is competent for enforcement ‘shall take appropriate steps to facilitate the enforcement in accordance with national law and in best interest of the child’. Efforts aimed at ensuring the implementation of the decision should precede any decision to refuse enforcement. Thereby, the assistance of professionals, such as social workers or psychologists, may be sought. Furthermore, efforts should be made by the enforcement authority to try, whenever possible, to overcome any impediment created by a change of circumstances. Enforcement should only be refused if disregarding the subsequently changed circumstances would ‘amount to a grave risk of physical or psychological harm for the child’.26

21

The ground of a grave risk of physical or psychological harm to the child provided under Art. 56 paragraph 6 applies to refusing the enforcement of all decisions, including ‘privileged decisions’.27

24 Recital (62). 25 Brosch/Mariottini, Facilitating Cross-Border Family Life: Towards a Common European Understanding, Report on the International Exchange Seminar, 20 December 2019, at pp. 17–18. 26 Recital (69). It provides the following as an example of such an impediment: a manifest objection by the child after the decision was rendered has been so strong that, if ignored, it would amount to such a grave risk. On the interpretation of this standard in the literature, see e.g., Tóth, The Revision of Brussels IIa Regulation on Questions of Parental Responsibility and Child Abduction, European Integration Studies (15/1) 2019, p. 84, at p. 94, referring to the 2016 Commission Proposal and stating that such incompatibility with the child’s best interests should qualify as a reason for the refusal of enforcement if the strength of the child’s objections or a change of circumstances attain a relevance which is comparable with the public policy exception. 27 See also, Musseva, The recast of the Brussels IIa Regulation: the sweet and sour fruits of unanimity, ERA Forum (21) 2020, pp. 139 https://doi.org/10.1007/s12027-019-00595-5, p. 140; Biagioni/Carpaneto, Children under Brussels IIter Regulation, p. 279; Beilfuss, What is New in Regulation (EU) No 2019/1111?, p. 113.

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Intro to Arts. 42–50 Brussels IIter

Section 2 Recognition and enforcement of certain privileged decisions (Art. 42–Art. 50)

Introduction to Articles 42–50 I. Preliminary remarks . . . . . . . . . . . . . . . II. Extension of the principle of direct enforcement . . . . . . . . . . . . . . . . . . . .

1

IV. The principle of mutual trust . . . . . . . . . . 10 V. Direct enforceability . . . . . . . . . . . . . . . 11

2

III. Direct enforcement without exequatur . . . .

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VI. Significant change of the structure and formulation of Section 2 . . . . . . . . . . . . . 14

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in: Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), 13; Balthasar-Wach, Die justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020); Bauer, Neues internationales Verfahrensrecht im Licht der Kindesentführungsfälle, IPRax 2002, 179; Deuschl, Kindesentführungen: Das Zusammenspiel HKÜ und VO 2019/1111, NZFam 2021, 149; ErbKlünemann/Niethammer-Jürgens, Die neue Brüssel IIa-VO, FamRB 2019, 454; Frohn/Sumner, Herziening Brussel IIbis: beschrijving van de nieuwe regeling, NIPR 2020/3, 391; Gallus, The Point of View of a Specialised Lawyer, in: Directorate General for Internal Policies, Policy Department C (ed.), Recasting the Brussels IIa Regulation (Workshop 8 November 2016) 29; Gruber, Der gewöhnliche Aufenthalt von Säuglingen und Kleinkindern, IPRax 2019, 217; Gruber/Möller, Die Neufassung der EuEheVO, IPRax 2020, 393; Heiderhoff, Das vertrackte subjektive Element des gewöhnlichen Aufenthalts, IPRax 2019, 506; Heiderhoff, Art. 15 EuEheVO, das Kindeswohl und die EuEheVO 2019, IPRax 2020, 521; Hess, Der Verordnungsvorschlag der französischen Ratspräsidentschaft vom 2606-2000 über einen Europäischen Besuchstitel, IPRax 2000, 361; Lazic´, Recognition and enforcement of decisions in the revised Brussels IIbis Regulation, NIPR 2021, 729; Lortie, The Hague 1996 Child Protection and 1980 Child Abduction Conventions compared with the Brussel IIter Regulation, NIPR 2021, 670; R. Magnus, Umgangsvollstreckung zwischen mitgliedstaatlichem und vereinheitlichtem Recht, in: Budzikiewicz/Heiderhoff/Klinkhammer/ Niethammer-Jürgens (eds.), Neue Impulse im europäischen Familienkollisionsrecht (2021), 9; Mansel/Thorn/ R. Wagner, Europäisches Kollisionsrecht 2019: Konsolidierung und Multilateralisierung, IPRax 2020, 97; Pirrung, EuEheVO und HKÜ: Steine statt Brot? – Eilverfahren zur Frage des gewöhnlichen Aufenthalts eines vier- bis sechsjährigen Kindes, IPRax 2015, 207; Pretelli, Child Abduction and Return Procedures, in: Directorate General for Internal Policies, Policy Department C (ed.), Recasting the Brussels IIa Regulation (Workshop 8 November 2016), 4; Rieck, Kindesentführung und die Konkurrenz zwischen dem HKÜ und der EheEuGVVO 2003 (Brüssel IIa), NJW 2008, 182; Rieck, Neues Eilvorlageverfahren zum EuGH – Kindesrückgabe nach Art. 11 VIII, 42 EheVO, NJW 2008, 2958; A. Schulz, Anmerkung zur EuGH-Entscheidung Inga Rinau, FamRZ 2008, 1732; Solomon, „Brüssel IIa“ – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung, FamRZ 2004, 1409; Sonnentag in Pfeiffer/Wittmann/Escher (eds.), Europäisches Familienrecht im Spiegel deutscher Wissenschaft und Praxis (2018), 9; Thomas, La procedure de retour de l’enfant à l’aune du règlement Bruxelles 2ter, Clunet 147 (2020), 897; M.-Ph. Weller, Die Reform der EuEheVO, IPRax 2017, 222.

I. Preliminary remarks Section 2 of Chapter IV deals with two specific aspects of parental responsibility – the rights of access 1 to a child and the return of an abducted child. Here, the need for prompt recognition and direct enforceability of court orders is particularly urgent.1 The CJEU spoke of the aim of the Arts. 40–45 of the Brussels IIbis Regulation, the predecessors of the present Arts. 42–50, as “of ensuring expeditious enforcement of judgments”.2 A ‘fast track’ enforcement is indeed necessary for decisions concerning the parental responsibility because the lapse of time is particularly relevant for children and for the contact to their parents or other persons caring for them. However, the preceding Brussels IIbis Reg-

1 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 (4th ed. 2013), Art. 21 EGBGB Anh. I note 239. 2 CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz), para. 47.

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Intro to Arts. 42–50 Brussels IIter Introduction to Articles 42–50 ulation realised this insight only for decisions on access to the child and on the return of an abducted child and abolished the exequatur procedure for these situations.

II. Extension of the principle of direct enforcement 2

The Recast3 extended the principle of direct enforcement to all decisions on parental responsibility. Nonetheless, access and return decisions remain to be specifically privileged; the grounds for challenging them are still somewhat restricted as compared to other decisions on parental responsibility although slightly enlarged in comparison to the Brussels IIbis Regulation.4 The reason behind is the overarching principle of Chapters III–V of the Regulation, namely the protection of what is somewhat euphemistically called the best interests of the involved child.5 This maxim is addressed in quite a number of provisions6 and Recitals7 and has particular importance for the ‘privileged’ access and return decisions covered by Arts. 42 et seq.

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Recital 19 also 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.”8 Moreover, Recital 19 makes reference to the 1989 UN Convention on the Rights of the Child. Wherever used in the Regulation, the expression “the best interests of the child” shall be interpreted in the light of these international instruments.

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The best interests of a child, the younger the child the more, require continuity and stability of the relations to the person(s) factually and lovingly caring for him or her, normally his or her parents. In addition, the social relations to other relatives, friends, schoolmates etc. form the child’s social surrounding and influence the child’s up-bringing. Any abrupt change of all 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.9 It is therefore of utmost importance that decisions on those relations and the factual enforcement of such decisions are effected timely before new relations have been built up which a further change would in turn disrupt.10

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The promptness and stability of decisions is particularly important if rights of access or the return of a child are concerned.11 If decisions on these matters 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 contrary rights of access or the return could – again – undermine the necessary continuity and stability of the child’s relations to his or her caring person(s) and could destabilise the child’s devel3 For a general survey of the modifications which the Recast brings about see, e.g., Antomo in Pfeiffer/Lobach/ Rapp, 13 et seq.; Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454 et seq.; Frohn/Sumner, NIPR 2020/3, 391 et seq.; Gruber/Möller, IPRax 2020, 393 et seq.; Mansel/Thorn/R. Wagner, IPRax 2020, 97 et seq. (101 et seq.). 4 Compare current Arts. 43 (1) and 50 with Art. 41 (1) subpara. 1 and Art. 42 (1) subpara. 1 Brussels IIbis Regulation which still excluded any appeal against the recognition and enforcement in the Member State where either was sought. 5 This principle has also been stressed by the CJEU in Inga Rinau (Case C-195/08) (2008) ECR I-5271, para. 51. Often it is, however, only the decision for the least harmful situation for the child. 6 Arts. 10 (1) (c), 12 (1), 13 (1), 15 (2), 25, 27 (6), 39 (1) (a), 56 (4) and (5), 66 (3), 68 (2) (a), Annex IX. 7 Recitals 19, 20, 23, 26, 27, 30, 39, 48, 55, 84. 8 Referred to also by the Practice Guide, p. 43 fn. 47. 9 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. 10 See Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final) p. 3: “In cases of parental child abduction timing is key …” 11 See, e.g., the Irish decision in R.H. v. A.R. [2021] IEHC 266 (para. 1.1 per Gearty J.: “The international law governing child abduction has one primary objective: to prevent the trauma caused to a child by the unilateral decision of one parent or guardian to move that child to another jurisdiction, thereby potentially disrupting the child’s life in many ways and usually damaging the child’s relationship with another parent or guardian still resident in the child’s home country.”).

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opment. On the other hand, judges must be aware that sometimes the former social surrounding was so unhealthy for the child’s development that a change is the better option.12 This ambivalence in particular of access and return situations make decisions on these matters specifically sensitive and difficult.13 This fact calls for specifically trained and specialized judges.14 When the Brussels IIbis Regulation in 2003 introduced “a uniform and simplified scheme of enforce- 6 ment”15 for access and certain return decisions, this was a far-reaching novelty16 namely, a speedy alternative to the normal enforcement procedure with the exequatur necessity. The ‘fast track’ procedure replaced the normal enforcement procedure in the enforcement state with a standardised certificate of enforceability issued by the judge who delivered the original judgment. The certificate could be issued only if all parties involved and the child had been given an appropriate opportunity to be heard. The due procedure and its control were placed entirely in the hands of the courts of the Member State of origin where the decision was rendered. In the Member State of enforcement, under the Brussels IIbis Regulation no appeal was available – neither against the original judgment nor against the certificate (Art. 36 (3)).

III. Direct enforcement without exequatur Now, under the Recast, the direct enforcement without exequatur has become the normal procedure 7 for all decisions on parental responsibility.17 In contrast to the Commission’s Proposal of 2016 which suggested to delete the special provisions on access and return decisions,18 the Recast still preserves their special, ‘privileged’ position.19 At first glance, their main specialty is the exclusion of the ‘normal’ grounds on which the recognition and the enforcement of these decisions can be refused. While these ‘normal’ grounds are listed in Art. 39, the grounds for challenging a decision under Art. 42 et seq. in Section 2 are limited by Art. 50 to one: The only valid ground is now the irreconcilability of the access or return decision with a later decision. In particular, contrary to the normal procedure,20 the violation of the ordre public cannot be invoked against the recognition or enforcement of the privileged decisions, except against the specific way the decision 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.21 This exception can now be based on Art. 56 (6).22 At second glance, the differences to the ‘normal’ procedure appear less dramatic. Some of the general grounds for the refusal of recognition and enforcement of a decision on parental responsibility (Arts. 39, 41) reoccur in the provisions on the issue of the certificate for a ‘privileged’ decision. The issuance of such a certificate must be refused unless all persons involved, regularly including the child,

12 See also Gallus in Directorate General for Internal Policies (ed.), Recasting the Brussels IIa Regulation (Workshop 8 November 2016), 29, 31 et seq. 13 R. Magnus, Umgangsvollstreckung zwischen mitgliedstaatlichem und vereinheitlichtem Recht in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Neue Impulse im europäischen Familienkollisionsrecht (2021), 9 (9 et seq.). 14 See also Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final) p. 13 (proposed concentration of child abduction proceedings in a limited number of courts with experienced judges). 15 CJEU (Case C-4/14), ECLI:EU:C:2015:5563 (Christophe Bohez v. Ingrid Wiertz), para. 52. 16 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”). 17 See Art. 30 (1) and Art. 34 (1) and Recital 58. 18 See p. 57 et seq. of the Proposal (COM (2016) 411 final). All decision on parental responsibility should be treated alike. 19 See Recital (58): “an even more favourable treatment of certain decisions granting rights of access and certain decisions entailing the return of the child.”; also Stapf in Althammer, Art. 40 Brussels IIbis note 14. 20 See Art. 39 (1) (a). 21 See Art. 56 (4) (“grave risk of physical or psychological harm”); to the Brussels IIbis Regulation in the same sense Rauscher in Rauscher, Brussels IIbis Regulation Art. 40 note 8. 22 In the same sense Antomo in Pfeiffer/Lobach/Rapp, 49 et seq.

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Intro to Arts. 42–50 Brussels IIter Introduction to Articles 42–50 must have had the opportunity to be heard.23 This precondition corresponds to some extent with Art. 39 (1) (c) and (2) for the ‘normal’ procedure. Moreover, a certificate can be withdrawn and thus recognition and enforcement become excluded if the hearing-requirement is neglected. On the other hand, a party is not obliged to choose the privileged procedure Arts. 42 et seq. provide for. The normal procedure for recognition and enforcement of decisions on parental responsibility which is provided by Arts. 30 et seq. remains still available,24 although with its risk of a moderately wider range of grounds on which the recognition and/or enforcement of a decision on access or return can be refused and thus with the possible consequence of prolonged proceedings. The situation where the right of access or the return of an abducted child is at stake does, however, not allow a longer delay.25 For this reason, Art. 45 (2) permits a declaration of provisional enforceability. 9

For all decisions in matters of parental responsibility not covered by Art. 42 et seq. (for instance on custody or if in ‘privileged’ cases so chosen), the regular procedure (Art. 30 et seq.) must be observed even if there is particular urgency.26

IV. The principle of mutual trust 10

The whole Section had no equivalent in the original Brussels II Regulation of 2000.27 The principle of automatic recognition and enforcement without any intermediate proceedings was first formulated as general aim of European procedural law by the European Council at its meeting in Tampere in 1999.28 The predecessor of the present Section which was partly based on a French proposal for a separate Regulation on the enforcement of judgments on rights of access of 2000,29 then integrated the automatic enforcement – although only for access and certain return decisions – into the Brussels IIbis Regulation of 2003,30 following a proposal of the Council Presidency of 20 April 2003.31 Afterwards, the concept of direct enforceability of titles of one Member State in all other Member States gained further acceptance: e.g., in the Regulation No. 805/2004/EC creating a European Enforcement Order for uncontested claims and since 2015 also in the Brussels Ibis Regulation.32 The Recast of the Brussels IIbis extended it to all decisions on parental responsibility. The basis for the waiver of an exequatur procedure is the – hopefully increased – mutual trust among the Member States in the reliability, functionality and justice of the different judicial systems in the EU. To recognise and to enforce a decision of a court of another Member State as if a court of the enforcement state had rendered it (see the present Art. 51 (1) Brussels IIter, however, with the exception of irreconcilable subsequent and enforceable judgments)33 implies a great deal of trust in the judge of origin and in the administration of justice in the decision state.34 But this must be accepted and it is regularly justified in the interest of a rapid enforcement of access or return decisions. Moreover, the principle of mutual trust forms generally the fundament of the provisions on recognition and enforcement.35 The mutual trust maxim belongs also to the fundamentals of the Recast.36 23 See Art. 47 (3). 24 Expressly Art. 42 (2). 25 See with all desirable clarity: Inga Rinau (Case C-195/08) (2008) ECR I-5271, paras. 76 et seq.; on this judgment see in particular Rieck, NJW 2008, 2958 et seq. and Schulz, FamRZ 2008, 1732 et seq. 26 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. 27 This first version of the Brussels II Regulation had mainly transformed the – never ratified – Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters of 1998 into a Regulation; see supra Introduction note 23 (Magnus/Mankowski). 28 See also Recital (23) of the Regulation. 29 OJ 2000 C 234/7; see thereto Hess, IPRax 2000, 361; Bauer, IPRax 2002, 179, 184 et seq. 30 COM (2002) 222/2. 31 8281/03 JUSTCIV 62. 32 See Arts. 39 Brussels Ibis Regulation et seq. 33 Art. 50; also, under the former Regulation Paraschas in Bülow/Böckstiegel/Geimer/Schütze, Art. 40 Brussels IIbis note 4. 34 See Inga Rinau (Case C-195/08) (2008) ECR I-5271, para. 50. 35 See Recitals 55 of the Regulation and the CJEU in Inga Rinau (Case C-195/08) (2008) (ECR I-5271, para. 50.).

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V. Direct enforceability A central aim of the Recast was generally “to better protect the best interests of the child by simplify- 11 ing the procedures and enhancing their efficiency.”37 With respect to the special provisions for access and return decisions under the Brussels IIbis Regulation, the Explanatory Memorandum to the Commission’s Recast Proposal identified two interrelated areas of problems: the child return procedure38 and the actual enforcement of decisions.39 The “immediate return of the child could not be ensured in all cases.”40 Generally, the enforcement occurred “late or not at all.”41 The Recast introduced the possibility to challenge an access or return decision because of its irreconcilability with a later decision (see Art. 50) in the present Section 2.42 The direct enforceability had been partly criticised. It had been argued that the standards concerning 12 the age from which on children are to be heard may considerably differ between the decision state and the enforcement state. Under the Regulation the latter state is then nonetheless obliged to enforce a decision even if the own standard is not met.43 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.44 For instance, it can be expected that an EUwide practice develops that children generally are to be heard if they have reached the age of three when they already have their own preferences and can articulate them by words, mimic and gestures and the judge can gain an impression of the child’s wishes.45 It has been further criticised that the situation may arise that different measures ordered by a decision may have to be treated differently. For instance, a return order may have to be enforced under Art. 45 while the underlying decision on parental responsibility cannot be recognised and enforced because it manifestly offends the public policy of the enforcement state (Art. 39 (1) (a));46 or that the access order in a decision can be enforced under Art. 45 (1) while the recognition and enforcement of the order on parental responsibility in the same decision may be refused because of Art. 39 (1) (a).47 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.

36 See Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 2. 37 Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 3; to critical aspects see Heiderhoff, IPRax 2020, 521 (523 et seq.). 38 Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 3. 39 Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 5. 40 Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 3. 41 Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM [2016] 411 final), p. 5. 42 The Brussels IIbis Regulation contained a similar general provision in Art. 47 (2) subpara. 2. 43 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). 44 See, for instance, ECHR, 2 May 1978, no. 7770/77, DR 14, 175 (X.); ECHR, 22 June 1989, Série A 156, no. 71 (Eriksson). 45 See, e.g., for Germany BGH NJW 2016, 2497 para. 46. 46 Paraschas in Geimer/Schütze, Art. 40 Brussels IIbis note 5. 47 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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Art. 42 Brussels IIter Scope

VI. Significant change of the structure and formulation of Section 2 14

The structure and formulation of Section 2 of Chapter IV have been significantly changed in comparison to the parallel section in the Brussels IIbis Regulation and from an overall perspective improved. The Section has now a clear structure. Art. 42 defines its general scope. Then follow four subsections: the first (Arts. 43 and 44) deals with the recognition of access and specific return decisions; the second concerns the enforceability and enforcement of these decisions; the third regulates the details for the certificate that is the condition for the automatic recognition and enforcement; the fourth lists the – only – ground for a refusal of the recognition and enforcement. Compared to the preceding Regulation the structure has been fundamentally altered.48 The division between recognition and enforcement is now much clearer than the former structure which merely distinguished between access and return decisions and merged the requirements for recognition and enforcement into one long and complex provision for each of the two kinds of decisions.49 Besides the already mentioned deviations from the comparable section in the Brussels IIbis Regulation there is quite a number of small though practically not unimportant modifications (e.g., the definition of the specific return decisions, the possibility of the recognition and enforcement of provisionally enforceable decisions etc.).

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The Regulation does not contain special provisions which expressly clarify the relationship between the privileged and the normal procedure of recognition and enforcement (except Art. 42 (2) which allows the choice between both). The provisions on the privileged decisions – when chosen – shall evidently enjoy priority over the provisions on all other decisions on parental responsibility insofar as they cannot be reconciled with the privileged procedure. Like under the predecessor Regulation, a party can freely choose between the ‘normal’ and the ‘privileged’ procedure. Thus, if an entitled party has chosen the privileged procedure, all other involved parties are not entitled to invoke general provisions which are inconsistent with the privileged procedure, in particular not the grounds for opposing the recognition or enforcement in Art. 39 (1), except its lit. d and indirectly its lit. c.

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The case that a party does not indicate whether it invokes recognition under Arts. 43 et seq. or under Arts. 30 et seq. is probably effectively excluded because the party must always choose the appropriate form of certificate under the respective Annex (see Art. 36 (1) and Art. 47 (1)). The question can only be whether the party can afterwards change his or her choice and apply for the other form of certificate (see thereto the comment to Art. 48).

Article 42 Scope 1. This Section applies to the following types of decision provided that they have been certified in the Member State of origin in accordance with Article 47: (a) decisions in so far as they grant rights of access, and (b) decisions pursuant to Article 29(6) in so far as they entail the return of the child. 2. This Section shall not prevent a party from seeking recognition and enforcement of a decision referred to in paragraph 1 in accordance with the provisions on recognition and enforcement laid down in Section 1 of this Chapter. I. Contents and aim . . . . . . . . . . . . . . . .

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II. Legislative history . . . . . . . . . . . . . . . .

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III. The covered decisions (para. 1) . . . . . . . . 1. General considerations . . . . . . . . . . . . . . 2. Decisions on rights of access (para. 1 (a)) . . .

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3. Certain decisions on the return of a child (para. 1 (b)) . . . . . . . . . . . . . . . . . . . . 10 4. Authentic instruments and agreements . . . . 18 IV. Relationship with the general procedure of recognition and enforcement (para. 2) . . . . 19

48 See also the new distribution of the respective provisions as listed in Annex X (Correlation Table). 49 See Arts. 41 and 42 Brussels IIbis Regulation.

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I. Contents and aim Art. 42 delimits the material scope of application of Section 2 of Chapter IV (Arts. 42–50) and clari- 1 fies its relationship to the general rules on recognition and enforcement (Arts. 30–41). Para. 1 defines the decisions which the heading of the Section summarises as ‘privileged’. These are only decisions on the rights of access and decisions ordering the return of a child in accordance with Art. 29 (6). These decisions enjoy direct enforcement without any exequatur procedure (Arts. 43 (1) and 45 (1)) and – contrary to other decisions on the parental responsibility – a somewhat restricted possibility to challenge their recognition (Art. 50).1 However, compared to the direct predecessor provision the possibility to oppose the recognition has been enlarged. The aim was to mitigate the rigidity of the preceding Regulation in this respect, which expressly excluded any ground for opposing the recognition.2 Para. 2 of the Article states that the Section does not exclude to choose the normal procedure of recognition and enforcement under Arts. 30 et seq. with its wider possibilities of opposition by an interested party.

II. Legislative history The Article had its predecessor in Art. 40 Brussels IIbis Regulation but no predecessor in the original 2 Brussels II Regulation.3 Para. 1 of the present text now specifies in somewhat clearer form than the predecessor that the Article concerns decisions with respect to the rights of access and to the return of the child if the Member State of origin had certified the decision in accordance with Art. 47. The present para. 2 is in essence a streamlined version of para. 2 of Art. 40 of the former Regulation. A slight extension in substance could perhaps be assumed because the present text addresses “a party” whereas the predecessor provision merely spoke of “a holder of parental responsibility” as being entitled to take redress to the ‘normal’ rules on recognition and enforcement. However, this textual modification does not reveal a real difference between the new and the old provision since any party (first invoking the recognition or enforcement) is entitled to use the ‘normal’ form of recognition and enforcement under Arts. 30 et seq. anyway. Small indirect modifications follow from the fact that Art. 29 (6), the successor provision of the former Art. 11 (8) Brussels IIbis Regulation, underwent slight textual amendments.

III. The covered decisions (para. 1) 1. General considerations Under the Brussels IIbis Regulation, decisions on parental responsibility in general required an exequatur procedure,4 though those on rights of access and the return of the child did not.5 The Recast has abolished the exequatur procedure for all decisions concerning the parental responsibility (Art. 34 (1)).6 Now, such decisions must be recognized and enforced without any special procedure being required.7 Nonetheless, Section 2 of Chapter IV establishes still an exception to the general rules on the recognition and enforcement for decisions on parental responsibility. For, the recognition and enforceability of the decisions covered by Art. 42 (1) can be opposed actually only on the ground provided for by Art. 50 (irreconcilability with a later decision) whereas for other decisions on the parental responsibility a wider circle of grounds for opposition is available (see Art. 39 and the comments there). The underlying reason is that the decision on access and return is of particular importance to

1 See also Introductory Remarks before Art. 42 note 7 et seq (Magnus). 2 See Art. 41 (1) and Art. 42 (1) Brussels IIbis Regulation; however, Art. 47 (2) subpara. 2 already prohibited the enforcement of decisions which contradicted later decisions. 3 As to the history of the whole section, see Introductory Remarks before Art. 42 (Magnus). 4 Art. 28 et seq. Brussels IIbis. 5 Art. 40 et seq. Brussels IIbis. 6 See the comment to Art. 34 note 1 (de Lima Pinheiro). 7 See before Art. 42 note 1 et seq. (Magnus).

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Art. 42 Brussels IIter Scope the child and his or her interests.8 Besides the necessity to decide promptly, the decision should also be stable and should not be lightly attacked. Because of the exceptional character of the provision, the covered situations cannot be extended by way of analogy.9 Since the provisions of the Section as a whole constitute exceptions, their interpretation should be restrictive rather than extensive, too. But, as already mentioned in the Introductory Remarks,10 a further indirect ground for refusal of recognition and enforcement is that the necessary Art. 47-certificate suffers from defects which allow its withdrawal. In addition, the enforcement can be refused in accordance with Art. 56 (6). 4

Art. 42 (1) does not cover all decisions concerning the parental responsibility11 but only those concerning “rights of access” and “the return of the child”. For instance, decisions on the custody or care for a child’s person in general or for his or her property12 or on the child’s religious education fall outside the scope of this Article and the whole Section. On the other hand, contrary to the preceding Regulation,13 cost orders in the covered cases can be enforced in the way the underlying access and return decision can be enforced (see Art. 73).14 Art. 42 covers those kinds of decisions as defined by Art. 2 (1) subpara. 2 including, for example, judgments, decrees and orders.15 These decisions may be rendered by courts or other authorities which under national law are competent to release such decisions. However, as Art. 2 (1) subpara. 3 further provides, for Chapter IV – and in contrast to the other Chapters of the Regulation – the term “decision” does not include provisional and protective measures when they are ordered “without the respondent being summoned to appear, unless this decision was served on the respondent prior to enforcement.” This serves the aim that the addressee of such measures should have an opportunity to react before the measure is enforced. The addressee’s constitutional right to be heard shall thus thereby ensured. 2. Decisions on rights of access (para. 1 (a))

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Section 2 of Chapter IV applies, first, to decisions on “rights of access” (Art. 40 (1) (a)). The term “rights of access” is defined by Art. 2 no. 10 and has to be understood in an autonomous-European sense.16 The general definition is rather self-content in that it now explains ‘rights of access’ as “rights of access to the child”. The further explanation includes the “right to take the child to a place other than his or her habitual residence for a limited period of time.” This definition has to be used also 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, to make walks or to undertake other out- and indoor activities (e.g., concert, zoo, theatre) with the child there but also to bring the child for a limited period of time to another Member State than that of his or her habitual residence. Equally falls the form of accompanied access under this provision.17 The right of access covers also distant communication between the child and the entitled person by mail, e-mail, phone, video conference etc.18 That the Regulation speaks of rights of access is due to the fact that almost inevitably the right of access granted to one person is at the same time a restriction of the right of access of another person. 8 See before Art. 42 note 1 et seq. (Magnus). 9 See CJEU (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). 10 See before Art. 42 note 8 (Magnus). 11 To the extent of the term “parental responsibility” see Art. 2 (7) no. 7 and CJEU (C-435/06), ECLI:EU:C: 2007:714 (C) paras. 30, 49; CJEU (C-759/18), ECLI:EU:C:2019:816 (OF v. PG) paras. 46 et seq.; CJEU (C262/21 PPU), ECLI:EU:C:2021:640 (A v. B) para. 41. 12 See thereto also Recital (10). 13 Art. 49 Brussel IIbis Regulation. 14 See thereto the comments on Art. 73 note 4 (Queirolo/Dominelli). 15 See also Art. 2 note 10 (Pintens). 16 See Art. 2 note 25 et seq. (Pintens). 17 OLG Köln BeckRS 2016, 124946 (in the enforcement state a court guardian must be appointed who accompanies the child during the access hours). 18 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.”); BGH NJW-RR 2020, 130 (contact via Skype); also OLG Karlsruhe BeckRS 2019, 15569; Rauscher in Rauscher, Brussels IIbis Regulation Art. 40 note 12; Rieck, Art. 40 note 2; Stapf in Althammer, Art. 40 Brussels IIbis note 4.

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Art. 42 Brussels IIter

Contrary to the Brussels II Regulation and its interpretation which restricted the right of access to 6 the child’s parents19, already the Brussels IIbis Regulation and now also the Brussels IIter Regulation allows and requires a broader view. Not only can each parent be entitled to access but also further persons like grandparents, siblings, a step-parent or other third persons with close factual relations to the child.20 Since the concept of “rights of access” must be interpreted autonomously,21 also the circle of entitled persons must be determined without redress to the applicable national law.22 It is advocated here that it should be decisive whether the respective person has in fact close emotional and responsible, as the case may be, ‘parent-like’ ties to the child.23 This will often presuppose that the person is a near relative of the child but should not exclude those who have cared for the child for a significant period so that close bonds had developed even if that person is no relative at all. It does not matter in which kind of proceedings the access decision was granted.24 Art. 47 (3) 7 (c) makes it clear that even default decisions can be enforced in the way provided for by Arts. 45 et seq.25 Then, in addition to the indications in the necessary certificate, sufficient service or waiver of it must be certified (Art. 47 (3) (c)). The CJEU held that also a penalty payment imposed by a decision concerning rights of access – and the claim for the recovery of the penalty – follows the enforcement rules of the Regulation since the penalty is merely ancillary to the rights of access.26 Therefore, a penalty ensuring the access rights can be directly enforced without any exequatur in the enforcement state like the access decision itself, provided that the amount of the penalty has been finally determined by the court of origin.27 The court of origin decides this point on the basis of its national law including its jurisdiction rules; insofar, the Regulation does not apply.28 The same is true if the decision shall be enforced in the Member State where the court is located which rendered the decision.29 Further, the court that has threatened to impose a penalty is generally entitled (and competent) to determine the amount of the penalty and to impose it.30 The ‘privileged’ procedure of the Arts. 42 et seq. is only available if the access decision is enforceable 8 under the law of the Member State whose court has granted the decision; the required certificate according to Annex V must certify the enforceability.31 If the law of the decision state provides for further 19 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). 20 Neli Valcheva v. Georgios Babanarakis (C-335/17), ECLI:EU:C:2018:359 paras. 22 et seq. (grandparents); in particular also AG Szpunar in Neli Valcheva v. Georgios Babanarakis (C-335/17), ECLI:EU:C:2018:242 para. 31, 78; 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; Stapf in Althammer, Art. 40 Brussels IIbis note 4; but contrary, e.g., Finger, FamRZ 2004, 234 (237). 21 Neli Valcheva v. Georgios Babanarakis (C-335/17), ECLI:EU:C:2018:359 para. 19. 22 Still contrary my comment in the preceding edition (Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2017) Art. 40 note 6). 23 See also Neli Valcheva v. Georgios Babanarakis (C-335/17), ECLI:EU:C:2018:359 para. 33: “It follows … that the concept of rights of access … must be understood as referring not only to the rights of access of parents to their child, but also to the rights of access of other persons with whom it is important for the child to maintain a personal relationship, among others, that child’s grandparents, whether or not they are holders of parental responsibility.” The CJEU (para. 36) also pointed to the danger that courts in different states may be competent to decide on access applications of different persons. The Court stressed that only the court at the child’s habitual residence should be competent to decide on all these applications. 24 See also Paraschas in Geimer/Schütze, Art. 40 Brussels IIbis note 8 et seq.; Rauscher in Rauscher, Brussels IIbis Regulation Art. 40 note 15. 25 Also Andrae/Benicke in Nomos Kommentar BGB I (2021), 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. 26 CJEU (C-4/14), ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 49 et seq. (still under the identical provisions of the Brussels IIbis Regulation). 27 CJEU (C-4/14), ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 59 et seq. 28 BGH NJW-RR 2020, 130 para. 21 et seq. with note Lobach, LMK 2020, 428167. 29 BGH NJW-RR 2020, 130 para. 18. 30 Lobach, LMK 2020, 428167. 31 See Annex V under no. 9.

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Art. 42 Brussels IIter Scope forms of titles by which rights 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 Arts. 43 and 45.32 The Section does, however, not cover decisions which merely reject a petition for access.33 Such decisions have no enforceable contents for which the privileged procedure of Arts. 43 and 45 should be available. Their recognition and enforcement – the latter with respect to costs – is governed by the general procedure (Arts. 30 et seq.).34 9

The Brussel IIbis Regulation still contained a provision which made it clear that the decision on the rights of access when rendered need not necessarily concern a cross-border situation.35 If it in fact concerned an international situation the court had to issue the respective certificate ex officio, otherwise only on the application of an entitled person. The Recast deleted this former provision. According to Art. 47 (1) Brussels IIter, now the court must issue the certificate only “upon the application of a party.” However, the essence of the former rule continues to apply namely, that it is irrelevant whether the cross-border situation already existed at the date of the access decision or occurred only later (though before the enforcement). 3. Certain decisions on the return of a child (para. 1 (b))

10

The privileged procedure is also available for a certain kind of decisions concerning the return of an abducted or illegally retained child.36 An almost identical regulation was already contained in the Brussels IIbis Regulation.37 The CJEU interpreted the former provisions in the sense that the enforcement of a return decision “in no way” depended on the prior adoption of a judgment on custody.38 This formulation appeared to include isolated return decisions outside custody proceedings.39 Art. 29 (6) of the present Regulation now prescribes that the return decision must be granted in custody proceedings which entail the return of the child.40 Isolated return decisions outside of custody proceedings do no longer fall within the scope of Art. 29 (6) and thus also not within the scope of Arts. 42 et seq.41 For, Art. 29 (6) – and also Art. 47 (1) (b) – expressly speak of “a decision on the substance of rights of custody” which entails the return of a child. The CJEU’s Povse-decision has thus been revised and applies only to cases still falling under the Brussels IIbis Regulation.

11

Section 2 covers therefore only return decisions in the wake of custody proceedings of the courts or authorities at the child’s original habitual residence in a Member State when the child has been abducted to another Member State or illegally retained there and the court or authority at the new place has already decreed a non-return decision based on Art. 13 (1) (b) or (2) of the Hague Convention on the Civil Aspects of International Child Abduction of 1980.42 The reasons of the mentioned Ha32 33 34 35

36 37 38 39 40 41 42

Still to the preceding Regulation 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. Art. 41 (3) Brussels IIbis Regulation; see thereto Stapf in Althammer, Art. 41 Brussels IIbis note 15; Calvo Caravaca/Carrascosa González/Castellanos Ruiz, Derecho de familia internacional (3rd ed. 2005), note 60; further Paraschas in Geimer/Schütze, Art. 40 Brussels IIbis note 10; Rauscher in Rauscher, Brussels IIbis Regulation Art. 40 note 13. For an in depth-study on the return procedure under the Brussels IIter Regulation see Thomas, Clunet 147 (2020) 897 et seq. Art. 40 (1) (b) in connection with Art. 11 (8) Brussels IIbis Regulation. CJEU (C-211/10 PPU), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 54; critical on the decision Schulz, FamRZ 2010, 1307 (1308). See, e.g., Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 11 note 16; Pataut/Gallant in Magnus/Mankowski, Brussels IIbis Regulation Art. 11 (8) note 76; Schäuble in Althammer, Art. 11 Brussels IIbis note 16. See also the comments to Art. 29 (6) in Art. 29 note 19 et seq. (Gallant). Also Gruber/Möller, IPRax 2020, 393 (397). This follows from the wording of Art. 29 (6): “Notwithstanding a decision on non-return as referred to in paragraph 1 …” Para. 1 restricts the scope of Art. 29 to cases “where a decision refusing the return of a child to another Member State is based solely on point (b) of Article 13(1), or Article 13(2), of the Hague Convention.” See also Inga Rinau (C-195/08) (2008) ECR I-5271 para. 69 (though under the preceding Regulation); Lortie, NIPR 2021, 670 (686); Paraschas in Geimer/Schütze, Art. 40 Brussels IIbis note 11; Rauscher in Rauscher, Brus-

410

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Art. 42 Brussels IIter

gue provisions are that “there is a grave risk that his or her return would expose the child to physical or psychological harm or place the child in an intolerable situation” (Art. 13 (1) (b) Hague Convention) or “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” (Art. 13 (2) Hague Convention). If the non-return order is based on other grounds, it does not fall under Art. 29 (6) Brussels IIter Regulation43 and consequently Arts. 42 et seq. do not apply.44 But Arts. 30 et seq. remain applicable.45 The whole regulation makes it necessary that the recognising court or authority identifies the reasons on which the non-return decision was based.46 Only grave harm to, or a contrary reasonable wish of the child counts for Art. 42 (1) (b). Therefore, non-return decisions should precisely specify and explain their reasons. The mention of Art. 13 ((1) (b) or 13 (2) Hague Convention alone without further explanation should not suffice.47 Art. 42 (1) (b) draws the consequence from Art. 29 (6) and Art. 96 Brussels IIter Regulation which in 12 combination state that, with respect to the privileged return decisions, between the Member States the Regulation takes precedence over conflicting decisions granted under the 1980 Hague Child Abduction Convention which refuse the return. Under the former Regulation, the CJEU has made it quite clear that the Section applies to return cases only if a non-return decision has already been decreed.48 Also, the certificate under Art. 47 (1) (b) can be granted only where the requirement of a preceding non-return decision is met.49 The correctness of the CJEU’s interpretation of the text of the former Regulation can hardly be doubted. The new version of the respective provisions (Art. 29 (6) and 42 (1) (b)) implies the same interpretation.50 But it should be questioned whether it is indeed necessary to employ the ‘privileged’ procedure only 13 after a decision requesting the return and a decision denying the return has been rendered. Where both decisions are in agreement on the return of the child, the privileged procedure should also be available.51 But the requirement of two – conflicting – decisions must at all be questioned. By this requirement the rapidity and effectiveness of the ‘privileged’ procedure is considerably weakened.52 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 return was effected (if the return was at all effected). Although insofar the Recast did not materially alter the former regulation, a future amendment should therefore abolish this requirement of two return decisions. The principal priority of the Brussels IIter provisions over the Hague Child Abduction Convention in cases of abduction or illegal retention which merely affect Member States should suffice

43 44

45 46 47

48 49 50 51 52

sels IIbis Regulation Art. 40 note 16; critical to the so-called ‘overriding mechanism’ of Art. 29 (6) and its predecessor in the Brussels IIbis Regulation (Art. 11 (8)) Lazic´, NIPR 2021, 729 (745 et seq.). Art. 29 (6) refers to Art. 29 (1) which in turn refers to Art. 13 (1) (b) and (2) Hague Child Abduction Convention. Also Gruber/Möller, IPRax 2020, 393 (397). The authors correctly point to the fact that Arts. 11 (8) and 40 (1) (b) Brussels IIbis Regulation contained a wider formulation which included Art. 13 (1) (a) Hague Convention as ground for a non-return order. The latter provision allows the refusal of the return of the child “if the person, institution or other body which opposes the return establishes that (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention”. If the nonreturn decision is based on this ground, Arts. 42 et seq. are not applicable. See Recital (52). See also Art. 47 (3) which indirectly requires that the original decision refusing the return clearly states its reasons and whether it is based on Art. 13 (1) (b) or/and Art. 13 (2) Hague Convention; also Gruber/Möller, IPRax 2020, 393 (397). In the same sense Gruber/Möller, IPRax 2020, 393 (397). Recital (48) provides: “Where the court of the Member State to or in which the child has been wrongfully removed or retained decides to refuse the return of the child under the 1980 Hague Convention, in its decision it should refer explicitly to the relevant articles of the 1980 Hague Convention on which the refusal was based.” This formulation should not be misunderstood as restricting the court to the mere quotation of the respective article of the Hague Convention. Inga Rinau (C-195/08) (2008) ECR I-5271, paras. 69 et seq. Inga Rinau (C-195/08) (2008) ECR I-5271, paras. 58 et seq., although still to the Brussels IIbis Regulation. In this sense also Recital (52). In this sense also Schulz, FamRZ 2008, 1734 in a note to the Inga Rinau decision. For cautious scepticism in this direction see also Rieck, NJW 2008, 2961.

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Art. 42 Brussels IIter Scope (see further the comments on Art. 96). The difficult interplay of provisions of the Hague Child Abduction Convention and of the Brussels IIter Regulation is unnecessarily complicated. 14

The return decision must be finally or provisionally enforceable under the law of the Member State whose court granted it. This must be certified in the certificate issued under Annex VI. In cases of provisional enforceability Art. 2 (1) subpara. 3 must be observed.

15

Following the current Regulation (and despite the considerations in note 13 supra) it remains, however, questionable whether the – limited – precedence of the Regulation provisions over the Hague Child Abduction Convention is always justified. Art. 13 Hague 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 ‘privileged’ 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 (although the Recast has somewhat softened the strictness of this principle, e.g., by Arts. 44, 56 et seq.).

16

It may be further asked whether Art. 42 (1) (b) requires that the child be abducted into a 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.53 Though this may be the standard situation envisaged by Art. 42 (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 non-return decision has been granted. If the child then comes into another Member State than from where it was abducted the facilitated enforcement procedure under Art. 45 et seq. for a return decision of a court of the child’s state of origin should also be available.

17

Other decisions ordering the return of the child than those under Art. 29 (6) are not covered by Section 2. 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 recognized and enforced by way of the normal procedure under Arts. 30 et seq.54 4. Authentic instruments and agreements

18

According to Art. 65 (2) authentic instruments and agreements which meet the requirements of Art. 64 and concern matters of parental responsibility have more or less the same standing as decisions. They must be recognised “without any declaration of enforceability being required.” However, Art. 65 (2) sent. 2 excludes the application of Section 2 of Chapter IV to them. Thus, the privileged procedure for the recognition of access and return decisions under Art. 42 et seq. does not apply to authentic instruments and agreements which concern the rights of access to or the return of the child.

IV. Relationship with the general procedure of recognition and enforcement (para. 2) 19

Para. 2 of Art. 42 states that the general system of recognition and enforcement remains available even if the conditions for the ‘privileged’ system under Arts. 42 et seq. are fulfilled. According to para. (2) a “party” is free to choose between both procedural ways.55 The entitled person need not advance certain reasons for one or the other way. Yet, the normal procedure under Art. 30 et seq. is preferable if requirements necessary under Art. 42 remain unclear or doubtful.56 53 Despite Art. 96 Brussels IIter, the Hague Convention remains generally applicable; compare infra Art. 96 note 6 (Calvo Caravaca/Cebrían Salvat). 54 That is the consequence of the decision in Inga Rinau (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. 55 See also BGH NJW-RR 2020, 130 para. 16; 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. 56 Hüßtege in Thomas/Putzo, Art. 40 note 3.

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Chapter IV: Recognition and Enforcement

Art. 43 Brussels IIter

The term “party” does not only include the “holder of parental responsibility” as the preceding ver- 20 sion of the Regulation still provided but all persons entitled to a right of access or involved in return proceedings.57 However, the right to choose can only be exercised by the applicant who initiates proceedings, not by other “parties.” Otherwise, insolvable conflicts would ensue if different parties would choose differently. It is questionable whether a choice either of the ‘normal’ or of the ‘privileged’ procedure, once made, can still be changed. In principle, this must be possible, in particular, where during ‘privileged’ proceedings it becomes apparent that conditions for this procedure are lacking. But even apart from this situation a later change between the two procedural ways should be admitted unless the change would negatively affect the position of other involved persons.

21

Subsection 1 Recognition (Art. 43–Art. 44)

Article 43 Recognition 1. A decision referred to in Article 42(1) given in a Member State shall be recognised in the other Member States without any special procedure being required and without any possibility of opposing its recognition unless and to the extent that the decision is found to be irreconcilable with a later decision as referred to in Article 50. 2. A party who wishes to invoke in a Member State a decision referred to in Article 42(1) given in another Member State shall produce the following: (a) a copy of the decision, which satisfies the conditions necessary to establish its authenticity; and (b) the appropriate certificate issued pursuant to Article 47. 3. Article 31(2) and (3) shall apply accordingly. I. Contents and aim . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . . 3 III. Automatic recognition of access and return decisions (para. 1) . . . . . . . . . . . . . . . . 6 1. General principle . . . . . . . . . . . . . . . . . 6 2. Automatic recognition . . . . . . . . . . . . . . 8 3. Covered decisions . . . . . . . . . . . . . . . . . 12 4. Opposing recognition . . . . . . . . . . . . . . 13 IV. Necessary documents (para. 2) . . . . . . . . 16 1. In general . . . . . . . . . . . . . . . . . . . . . 16

2. 3. 4. 5. V. 1. 2. 3. 4.

Decision (para. 2 (a)) . . . . . . . . . . . . Certificate (para. 1 (b)) . . . . . . . . . . . Burden to produce the documents . . . . . Effects of documents . . . . . . . . . . . . . Translation and transliteration (para. 3) . In general . . . . . . . . . . . . . . . . . . . Decision . . . . . . . . . . . . . . . . . . . . Certificate . . . . . . . . . . . . . . . . . . . Lack of translation or transliteration . . . .

. . . . . . . . .

. . . . . . . . .

19 22 26 27 30 30 32 34 35

I. Contents and aim The Article is the first of two provisions which form Subsection 1 within Section 2 of Chapter IV of the Brussels IIter Regulation. This Subsection deals with the recognition of decisions on access rights and on the child’s return – in the sense of Art. 42 (1) – in other Member States. Para. 1 of the provision grants that such decisions are to be automatically recognised and ensures that they cannot be

57 See supra Art. 42 note 6 (Magnus) and also 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.

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1

Art. 43 Brussels IIter Recognition challenged except for one reason, namely their irreconcilability with a later decision.1 Para. 2 states the necessary formal preconditions for the recognition, i.e., the production of the decision which shall be recognized and of the appropriate certificate issued under Art. 47. The reference in para. 3 to Art. 31 (2) and (3) grants the court or authority the procedural possibility to require a translation or transliteration of otherwise non-understandable parts of the decision or of the respective certificate. The aim of the Article is to permit a fast and easy recognition of the covered decisions and to safeguard their stability by limiting the grounds for their challenge. Even under the aspect of ordre public, the covered decisions cannot be attacked in the recognition/enforcement state except that the way in which the decision shall be enforced “would expose the child to a grave risk of physical or psychological harm.”2 Access and return decisions should not be rendered futile by lengthy court proceedings. Taking 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 and return must be rather promptly effected after, for instance, the child’s parents separated or the child was brought to another Member State. Only then can an existing relationship be continued by access or return and does not disturb relations the child has already established anew. 2

The recognition procedure under Art. 43 is optional (Art. 42 (2)). The normal procedure under Arts. 30 et seq. is always available instead. A party who wants to rely on an access or return decision is entitled to freely choose between the ‘normal’ and the ‘privileged’ procedure. Since the party must produce the correct accompanying certificate either of Annex V or Annex VI, it is always clear which procedure has been chosen. Whether a choice can still be changed afterwards is questionable but should be allowed in analogy to Art. 48.

II. Legislative history 3

The Article had no precise predecessor in the Brussels IIbis Regulation. Yet, its main essence was already contained in the preceding edition of the Regulation though in a different structure.4 The current Art. 43 is clearer in structure and easier understandable than the comparable former provisions. Para. 1 of the current Art. 43 corresponds partly to para. 1 subpara. 1 of Arts. 41 and 42 Brussels IIbis Regulation. The present Art. 43 (1) now covers both finally and provisionally enforceable access and return decisions, but regulates exclusively their recognition (for the enforcement see Art. 45 et seq.). Art. 41 of the preceding Regulation dealt both with the recognition and enforceability of access decisions while the former Art. 42 did the same for return decisions. Both former Articles required for the recognition that the decision was already enforceable;5 however, they entitled the court of origin to declare the enforceability even if the national law did not foresee such a possibility.6 Both old paras. 1 subparas. 1 further ordered that in the Member State of enforcement no appeal whatsoever laid against the recognition.7 Art. 43 (1) Brussels IIter Regulation now provides in combination with Art. 50 that the irreconcilability with a later decision can be invoked.

4

The wording of Art. 43 (2) Brussels IIter Regulation is almost identical with that of Art. 45 (1) Brussels IIbis Regulation from which the present text was borrowed: the two provisions require the same formal preconditions for the recognition of access or return decisions: an authenticated copy of the decision and the appropriate certificate which now must be issued in accordance with Art. 47.

1 In fact, also Art. 48 (2) in connection with Art. 47 provides for further reasons to refuse the recognition. 2 See Art. 56 (4); also, in the same sense to the Brussels IIbis Regulation: Andrae/Benicke in Nomos Kommentar BGB I (2021), Art. 45 note 3; Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 3; Hüßtege in Thomas/Putzo, Art. 41 note 1; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 1; see also supra Art. 42 note 5 (Magnus). 3 See Introductory Remarks before Art. 42 note 2 (Magnus). 4 The original Brussels II Regulation did not contain a comparable Article. 5 Para. 1 subpara. 1 of Arts. 41 and 42 Brussels IIbis Regulation. 6 Art. 41 (1) subpara. 2 and Art. 42 (1) subpara. 2 Brussels IIbis Regulation. 7 See thereto Stapf in Althammer, Art. 41 Brussels IIbis note 6. Art. 47 (2) subpara. 2 Brussels IIbis Regulation provided merely for the enforcement of decisions that the irreconcilability of later decisions of the Member State of origin constituted a ground to refuse enforcement; the provision did not mention the recognition.

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Art. 43 Brussels IIter

The reference of the current Art. 43 (3) leads to Art. 31 (2) and (3) which is a varied and more general version of Art. 38 (2) and Art. 45 (2) Brussels IIbis Regulation. Where necessary, the court or authority in the member State of enforcement may require a translation or a transliteration of the free text fields of the certificate or even of the involved decision, both in accordance with the further provisions in Art. 91.

5

III. Automatic recognition of access and return decisions (para. 1) 1. General principle All decisions given in one Member State on rights of access or on the return of the child covered by Art. 42 (1)8 have to be recognised in all other Member States “without any special procedure being required.” Any exequatur procedure is unnecessary; the respective certificate replaces it. Further, Art. 43 (1) provides that the possibilities to oppose the recognition of these decisions are limited to the case that the decision is irreconcilable with a later decision. Each Member State has to treat an access or return decision of another Member State like an own decision (Art. 51 (1) sent. 2). This holds true even for a penalty payment imposed by a decision concerning the rights of access or return because the penalty is merely ancillary in order to safeguard the respective access rights or the return.9

6

Although the necessary certificate replaces to a wide extent the control of the title in the other Mem- 7 ber States, yet, some grounds of non-recognition under Art. 39 reoccur as requirements for the issue of the Annex V- and VI-certificate by the court of origin (see the comment to Art. 47). Apart from the exception of the irreconcilability of the decision in question with a later decision (see Art. 50), the recognition in another Member State cannot be refused because of one of the grounds of Art. 39 (including ordre public),10 even not via an appeal against the Annex V- or VI-certificate. The certificate, if incorrect, can only be corrected or withdrawn in accordance with Art. 48. However, it must be borne in mind that under certain conditions the court or authority of the enforcement state can also suspend proceedings on an access or return decision and thus nonetheless avoid the immediate effect of the original decision.11 2. Automatic recognition Art. 43 (1) prescribes the automatic recognition of access and return decisions;12 any Member State 8 must directly respect an access decision of another Member State. The same is true for a decision which orders the return of an abducted child after a prior decision under the 1980 Hague Child Abduction Convention has refused the return.13 The principle of automatic recognition applies whether recognition is separately sought or is only a precondition of enforcement. If the procedure under Arts. 42 et seq. is chosen and an Annex V- or VI-certificate is applied for, the access or return decision cannot be attacked on the grounds listed in Art. 3914 nor is a separate peti8 As to those decisions, see Art. 42 note 5 and 10 et seq. (Magnus). 9 CJEU (C-4/14), ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 49 et seq. (still under the Brussels IIbis Regulation). 10 So, for the Brussels IIbis Regulation, Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 3; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 1. 11 See Art. 44. 12 Recital (54); in the same sense already to the Brussels IIbis Regulation: Andrae/Benicke in Nomos Kommentar BGB I (2021), 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). 13 See – in this sense under the Brussels IIbis Regulation – CJEU (C-92/12 PPU), ECLI:EU:C:2012:255 (Health Service Executive v. S.C., A.C.) paras. 116 et seq.; CJEU (C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 48; Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 paras. 59 et seq.; further Andrae/Benicke in Nomos Kommentar BGB I (2021), Art. 41, 42 note 23; Rauscher in Rauscher, Brussels IIbis Regulation Art. 42 note 4; Solomon, FamRZ 2004, 1409 (1418). 14 Still to the Brussels IIbis Regulation: Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 3; Stapf in Althammer, Art. 41 Brussels IIbis note 6.

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Art. 43 Brussels IIter Recognition tion for non-recognition admissible – neither in the decision state nor in the recognition state.15 While under the Brussels IIbis Regulation no stay of proceedings could be granted within the special procedure for access and return decisions,16 Art. 44 Brussels IIter Regulation now permits to grant such a stay under specific circumstances.17 10

Where a decision concerns on the one hand the rights of access or a return order and on the other hand the child’s custody, the Recast has opened the door for the automatic recognition of the decision as a whole.18 The decision as a whole must now be recognised. However, while the custody part can be opposed on any of the grounds listed in Art. 39, the access or return part can challenged only on the basis of Art. 50.19 This may have the consequence that the access/return part stands whereas the custody part falls and cannot be recognised.

11

The automatic recognition does, however, not hinder a decision by which a competent court modifies an access order in accordance with Art. 54 (1).20 This provision lists the special requirements under which a modification is admitted (e.g., that the essence of the original decision must be “respected”). It regulates the aspect of modification exclusively. A recourse to the applicable national law, as under the Brussels IIbis Regulation,21 is insofar no longer necessary nor admissible.22 If the original access decision has been meanwhile modified or quashed in the state of origin, for instance on appeal, any modification in another Member State ceases to apply.23 Since Arts. 42 and 43 do not foresee specific procedural means for raising a defence of the termination of the modification, the defence must be admissible either wherever recognition of the original decision is still sought or in the enforcement procedure which is governed by national law.24 3. Covered decisions

12

Art. 43 merely covers decisions as defined in Art. 42 (1), namely those on rights of access and those on specific return decisions (see thereto Art. 42 and the comments there). The respective decision must have been rendered by a court of a Member State. Contrary to Art. 41 (1) and Art. 42 (1) Brussels IIbis Regulation which applied only to enforceable decisions, the current Art. 43 (1) does not require that these decisions must be already finally enforceable;25 the Article extends also to provisionally enforceable decisions as can be inferred from the fact that the Recast deliberately deleted the word “enforceable” before the word “decisions” in Art. 43 (1).26

15 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. 16 See Magnus in Magnus/Mankowski, Brussels IIbis Regulation Art. 41 note 8. 17 See thereto the comments to Art. 44 (Magnus). 18 This has the consequence that all decisions on parental responsibility must be automatically recognised; see Art. 30 (1). Under the Brussels IIbis Regulation only the part concerning the rights of access or on return could be automatically recognised; see 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). 19 However, the court or authority of the enforcement Member State can inform the court or authority of the Member State of origin of omissions, errors, doubts or lack of conditions of the respective certificate (Art. 47 and 48) so that the latter institution either rectifies or withdraws the certificate. In case of withdrawal, the recognition – and enforcement – is to be refused, too. 20 See the comments to Art. 54 (Cuniberti). 21 Similarly Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 4. 22 In other respects, for instance the participation of a child protection authority, the national law remains applicable; see Recital 61. 23 Art. 54 (2). 24 Art. 51 (1) sent. 1. 25 Also Art. 41 (1) subpara. 2 Brussels IIbis Regulation entitled courts to declare an access decision provisionally enforceable even if its national law did not provide for such a possibility; see further to this former possibility Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 12. 26 Art. 41 (1) Brussels IIbis Regulation still contained “enforceable” before “decision.”

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4. Opposing recognition The Brussels IIbis Regulation allowed no ground of opposition against the recognition of an access 13 or return decision.27 The Recast softened this rigidity. According to Art. 43 (1) a party may now oppose the recognition of an access or return decision in the Member State where the decision is invoked “to the extent that the decision is found to be irreconcilable with a later decision as referred to in Art. 50.” The Brussels IIbis Regulation regarded the irreconcilability with a later decision only as an impediment for the enforcement of the prior decision.28 The ground of irreconcilability is now also a ground for opposing recognition and actually the sole ground: “The list of grounds for refusal of recognition in this Regulation is exhaustive.”29 But indirectly the possibility of the court or authority of the Member State of origin to withdraw a wrong certificate (Art. 48 (2)) can also become a ground for non-recognition if the certificate is withdrawn.30 Apart from a party’s application for non-recognition, the court or authority may on its own motion refuse the recognition if it gains knowledge of such later decision (for the details see the comments on Art. 50).

14

The irreconcilability with a later decision hinders the recognition only to the extent the two decisions 15 deviate from each other. This is probably of relevance for access decisions. The later decision may merely change, or add to, a part of the former decision whose conforming parts still have to be recognised.

IV. Necessary documents (para. 2) 1. In general In order to achieve the recognition of an access or return decision, Art. 43 (2) requires that two docu- 16 ments must be presented: the decision and a certificate which certifies the enforceability of the decision. This regulation has to be autonomously interpreted. It is further an exclusive regulation.31 The mentioned documents cannot be replaced with equivalent other documents nor be entirely dispensed with.32 Section 2 of Chapter IV does not contain a provision similar to Art. 32 (1) which allows a substitution or dispense. Moreover, the specific and strictly formalised character of the ‘privileged’ procedure for access rights and return orders is irreconcilable with a substitution of, or dispense with, any of the necessary documents. On the other hand is the court or authority not entitled to request further documents for the recognition (or enforcement) of the decision in question. A party who wants to rely on the recognition of a decision covered by Art. 42 must therefore produce, first, at least a copy of the decision which shall be recognised, second, a particular certificate the requirements for whose issue are detailed in Art. 47. Annex V provides a standardised form for the certificate for access decisions; Annex VI does the same for return decisions in the sense of Art. 42 (2) (b).

17

Although authentic instruments and agreements on access or return are generally treated like decisions (see Art. 65) with their own standardised form in Annex IX,33 the Regulation’s Section on the privileged procedure does not apply to them.34

18

27 28 29 30 31 32

Art. 41 (1) and Art. 42 (1) Brussels IIbis Regulation. See Art. 47 (2) subpara. 2 Brussels IIbis Regulation. Recital (56) sent. 2. See supra fn. 19. Also, under the Brussels IIbis Regulation, e.g., Stapf in Althammer, Art. 45 Brussels IIbis note 3. See also, with respect to the corresponding regulation in the Brussels IIbis Regulation, Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 45 note 1; Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 2; Stapf in Althammer, Art. 45 Brussels IIbis note 3. 33 See Art. 66 (1) subpara. 1 (b). 34 Art. 65 (2) sent. 2.

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Art. 43 Brussels IIter Recognition 2. Decision (para. 2 (a)) 19

The primary document – the decision which shall be recognised – can be always produced as original. But like in Art. 31 (1) (a) a copy of the decision suffices. However, a copy is needed “which satisfies the conditions necessary to establish its authenticity”. This formulation has the same meaning as in Art. 31 (1) (a) and expresses that the copy must meet the requirements of authentication prescribed by the Member State where the decision has been rendered.35 Besides that, no legalisation or other formality is required in order to prove the authenticity of the documents (see Art. 90).

20

As under Art. 31 (1) (a), the law of the decision state defines under which conditions a copy of a decision 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 or authority which rendered the decision.36 A mere copy without any further kind of authentication does not suffice.37 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 decision state.

21

The decision must only be produced in its original language; an accompanying translation into the language of the enforcement state is not necessary (though admissible). Since Art. 43 (3) refers to Art. 31 (2) and (3)38 under which the court of the recognition/enforcement state may request a translation or transliteration in accordance with Art. 91, the court or authority of the recognition/enforcement state is entitled to the same request if it is “unable to proceed without such a translation or transliteration.”39 Otherwise the court or authority would be forced to recognise (or even enforce) a decision about whose precise contents it may have serious doubts. 3. Certificate (para. 1 (b))

22

Besides the decision the certificate regulated in Art. 47 must be produced. This is the certificate in the standard form of Annex V in case of a decision on rights of access and of Annex VI in case of a decision on the return of the child. The certificate must be one which the court or authority of the original decision has issued,40 though not necessarily the same person who has rendered the original decision. Furthermore, the original of this certificate must be produced.41 A copy does not suffice.

23

Like for the decision, the court or authority may request “where necessary” a translation or transliteration of the free text fields of the respective certificate. This principle of Arts. 31 (2) – and also of Art. 46 (2) – is extended to Art. 43 by its para. 3. It is the court’s or authority’s orderly discretion when a translation appears necessary.

24

It has been rightly requested that the judge or authority of origin who issues the certificate should be as careful and explicit as possible, in particular when filling free text fields of the respective certificate.42 This would reduce the risk that the court or authority of the enforcement state would request an additional translation of the decision or of further parts of the certificate.43 35 Report Borrás, note 103 (although with respect to what now is Art. 31 since special provisions for privileged decisions were not yet contained); Andrae in NomosKommBGB I (2021), Brussels IIbis Regulation Art. 37 note 2; Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 7; Stapf in Althammer, Art. 45 Brussels IIbis note 3. 36 See for instance for Germany: § 317 para. (4) ZPO. 37 See already Art. 31 note 5 (de Lima Pinheiro); under the Brussels IIbis Regulation Stapf in Althammer, Art. 45 Brussels IIbis note 3. 38 See further infra Art. 43 note 1 et seq. (Magnus). 39 See Arts. 31 (3); also, under the Brussels IIbis Regulation, 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. 40 See Art. 47 (1). In the same sense – already under the Brussels IIbis Regulation – Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 9. 41 So, under the Brussels IIbis Regulation, Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 45 note 4; 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; Stapf in Althammer, Art. 45 Brussels IIbis note 3.

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As to questions of translation and transliteration, see infra Art. 91 note 2 et seq. (Stamatiadis/Tsantinis).

25

4. Burden to produce the documents It is self-evident that the applicant who seeks the recognition of a decision either on a right of access or on the return of the child is obliged to produce the necessary documents.

26

5. Effects of documents If the necessary documents have been furnished the decision on access or return must be recognised 27 (and enforced). The competent court or authority of the recognition/enforcement state need only, and is only allowed to, check the formal requirements – original or authenticated copy of the decision, original of the certificate and its accompanying (partial) translation or transliteration where the certificate contains text in the free text fields. Furthermore, the court or authority of the recognition/ 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 decision is admitted.44 Can either the decision or the certificate or the necessary partial translation not be produced then the application for the ‘privileged’ recognition (and enforcement) must be dismissed, generally after a time for the production of the missing document(s) has been set and has lapsed.45 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.46 Mere writing errors which do not cast doubt on the contents of the certificate should, however, not hinder the recognition (and enforcement) of the decision.47

28

If there exists more than one original certificate and if there are differences between the certificates only the most recent should count.

29

V. Translation and transliteration (para. 3) 1. In general The reference in Art. 43 (3) to Art. 31 (2) and (3)48 concerns the question whether and when the re- 30 quired documents must be translated into the official language of the recognition or enforcement Member State. In general, the necessary documents need not be translated. However, under certain circumstances, the court or authority of the recognition/enforcement Member State can request a full translation of the decision and a partial translation of the accompanying certificate. In both cases also a mere transliteration can be requested which converts the scripture of words from one alphabet into another (e.g., from Cyrillic into Latin letters). As far as a translation or transliteration becomes necessary, the applicant must provide it.49 Further details of translation and transliteration (into which language, by whom etc.) are regulated by Art. 91 (see the comments there). The costs of the translation or transliteration belong to the costs of the proceedings. 42 Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 notes 11 et seq. 43 Rauscher in Rauscher, Art. 45 notes 11 et seq. 44 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; Stapf in Althammer, Art. 45 Brussels IIbis note 3; see also the comment on Art. 31 note1 et seq. (de Lima Pinhero). 45 Also Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 4. 46 Paraschas in Geimer/Schütze, Art. 45 Brussels IIbis note 2. 47 In the same sense Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 5. 48 Art. 35 (3) and (4) and Art. 46 (2) and (3) contain provisions which are identical in substance although addressed to the enforcement of the original decision. 49 See Art. 31 (2) and (3).

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Art. 44 Brussels IIter Stay of proceedings 2. Decision 32

According to the referred Art. 31 (3), the court or authority can require a full or partial translation or mere transliteration “if it is unable to proceed without such a translation or transliteration.” A mere transliteration will rarely suffice. Whether the court or authority cannot proceed without a (full) translation lies in its discretion. However, the formulation of Art. 31 (3)50 points to a rather high threshold which the court or authority should adopt for requiring a full translation: The translation or transliteration of the decision must be indispensable for the further proceedings. The threshold takes account of the additional time and costs which a full translation necessitates.

33

In line with this last consideration, Art. 31 (3) provides further that such translation or transliteration can only be requested “in addition to a translation or transliteration of the translatable content of the free text fields of the certificate.” The court or authority must therefore first attempt to cope with the translation or transliteration of the respective parts of the certificate. Only if it finds that it cannot proceed without the translation or transliteration of the decision as basis for the latter’s recognition (or – more important – for its enforcement) it can request a full or partial translation or transliteration. 3. Certificate

34

Whereas the Brussels IIbis Regulation still required a mandatory translation of the free text fields of the respective certificates,51 the Recast transformed this obligation into a discretionary right of the court or authority. According to Art. 31 (2), the court or authority now can request the translation or transliteration of the free text fields of the Annex V- or Annex VI-form “where necessary.”52 The discretion what is necessary is certainly wider than that under Art. 31 (3). 4. Lack of translation or transliteration

35

If an applicant does not provide the requested translation or transliteration the court is entitled to dismiss the application based on the privileged procedure under Art. 42 et seq. For, Art. 43 (3) does not refer to Art. 32 which enables the court or authority to set a time limit for producing the required documents and to even dispense with them. Nonetheless, when requiring a translation, the court or authority should always set a time frame for the production of the documents accompanied by the warning that after the unsuccessful lapse of that time the privileged recognition (or enforcement) will be rejected. An application for recognition or enforcement under Arts. 30 et seq. remains still available.

Article 44 Stay of proceedings The court before which a decision referred to in Article 42(1) given in another Member State is invoked may stay its proceedings, in whole or in part, where: (a) an application has been submitted alleging the irreconcilability of that decision with a later decision as referred to in Article 50; or (b) the person against whom enforcement is sought has applied, in accordance with Article 48, for the withdrawal of a certificate issued pursuant to Article 47.

50 The same threshold is provided for by Art. 35 (4) and Art. 46 (3). 51 Art. 45 (2) subpara. 1 Brussels IIbis Regulation. 52 The same formulation is used in Art. 35 (3) and (Art. 46 (2).

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Chapter IV: Recognition and Enforcement I. Contents and aim . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

1 3

III. Conditions for a stay of proceedings . . . . . 1. In general . . . . . . . . . . . . . . . . . . . . . 2. Irreconcilability of decisions (Art. 44 (a)) . . .

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Art. 44 Brussels IIter

3. Application for withdrawal of certificate (Art. 44 (b)) . . . . . . . . . . . . . . . . . . . . 12 4. Discretion . . . . . . . . . . . . . . . . . . . . . 14 V. Consequences . . . . . . . . . . . . . . . . . . . 18

I. Contents and aim The Article which has to be interpreted autonomously introduces the possibility of a stay (suspen- 1 sion) of proceedings in which the recognition of an access or return decision of another Member State is invoked. The provision applies equally to access and return decisions. The court or authority has discretion to stay proceedings either in toto or partially. However, such stay is possible only in two situations: either if the irreconcilability (in the sense of Art. 50) with a later decision is alleged or if the withdrawal of the certificate (in the sense of Art. 47) has been applied for. Art. 44 is a further means to mitigate the rigid principle of the preceding Regulation that in the recognition phase the recognition of access or return decisions could not be opposed at all.1 The situations where a stay of proceedings can be ordered are, however, rather restricted. A parallel provision that applies to all other decisions on parental responsibility is Art. 34 which, however, allows the invocation of a wider circle of grounds for the refusal of recognition. For the enforcement stage, Arts. 56 and 63 contain comparable provisions.

2

II. Legislative history The provision had no direct predecessor in the Brussels IIbis Regulation. The former Section on access and certain return decisions did not contain a provision which allowed a stay of proceedings although the former Art. 27 already provided the general possibility to suspend recognition proceedings if an appeal was raised in the Member State where the decision was rendered.2 Whether this provision also applied to the special Section of the Brussels IIbis Regulation on access and return decisions was questionable.

3

III. Conditions for a stay of proceedings 1. In general Art. 44 applies solely to proceedings where the recognition of an access or return decision (in the 4 sense of Art. 42 (1) (a) or (b)) is at stake, either, as the subject matter or as a preliminary question. It grants the court or authority discretion to stay proceedings on the recognition of these ‘privileged’ decisions. The court or authority is not obliged to order a stay nor can the parties insist on a stay. The stay may concern the whole or only part of the proceedings. The court or authority has discretion also in this respect. However, the stay can only be granted if at least one of the following two conditions is satisfied: the irreconcilability of the decision in question with a later decision (Art. 44 (a)) or the affected person has applied for the withdrawal of the certificate that has been issued for the decision in question (Art. 44 (b)). Since the whole Section and this Subsection are exceptions to the general rules on the recognition of decisions on parental responsibility, they should be interpreted restrictively. Therefore, the court or authority has no general power to stay proceedings and is thus not entitled to order a stay for other reasons. Moreover, the listed reasons must also be interpreted re1 Art. 41 (1) and Art. 42 (1) Brussels IIbis Regulation. 2 Whether the former Art. 27 was applicable to the special provisions on access and return decisions (Section 4 of Chapter III of the Brussels IIbis Regulation) was questionable because Art. 21 (3) Brussels IIbis Regulation provided that: “Without prejudice to Section 4 of this Chapter (sc. III)” the general provisions of Chapter III were in principle applicable.

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Art. 44 Brussels IIter Stay of proceedings strictively. They cannot be extended by analogy. Otherwise, the precise specification of reasons would make no sense. 5

The Article requires that the decision which shall be recognised has been given in another Member State than that where the decision is being invoked. Like the former Art. 27 Brussels IIbis Regulation, the current Art. 44 should also be applicable if the issue of recognition is raised as a preliminary point in enforcement – or other – proceedings.3

6

Art. 44 is located in the Subsection on recognition and appears to be exclusively applicable to cases concerning the recognition of rights of access and decisions which refuse the return of the child for specific reasons. On the other hand, being the only provision on the suspension of the ‘privileged’ proceedings the Article should be interpreted as the exhaustive regulation of these cases. Any additional application of Arts. 33, 56 or 63 should be regarded as excluded. However, the general interpretation of all four provisions should follow as much as possible the same lines. 2. Irreconcilability of decisions (Art. 44 (a))

7

The first of the two alternative conditions for the application of Art. 44 is that the decision which shall be recognised is irreconcilable with a later decision “as referred to in Art. 50.” Art. 50 regulates which later decisions are relevant, namely from which court or authority the later decision must stem. This is, first, the court or authority “in the Member State in which recognition is invoked.”4 It also suffices, second, that it is a decision rendered “in another Member State or in a non-Member State of the habitual residence of the child provided that the later decision fulfills the conditions necessary for the recognition in the Member State in which the recognition is invoked.”5 In essence, the perspective of the recognition Member State is decisive, either that the later decision was rendered there or that this state would recognise the later decision because it was rendered in another Member State or in a third state if the child had his or her habitual residence there (for further details in this respect see the comment to Art. 50).6

8

The former and the later decision must be irreconcilable. They must concern the same child and order contrary measures. The later award of provisional custody rights is, for instance, not irreconcilable with a prior return decision.7 However, if the decisions contradict each other, according to Art. 50 the recognition (and the enforcement) “shall be refused” in such a case. Contrary to Art. 44, Art. 50 grants the court or authority no discretion. In order to reconcile the two provisions, Art. 44 shall most likely cover cases where the irreconcilability or other conditions are not entirely sure and still need to be finally clarified. Where these preconditions are sure, only Art. 50 should apply with the consequence that the recognition must be refused (see also infra Art. 43 note 15 [Magnus]).

9

The later decision must also be finally or provisionally enforceable. The discretionary stay of proceedings is especially fitting for cases of provisional enforceability.

10

Only a later decision has to be taken into account. In that respect the formal date at which the contrary decisions became effective should count, not the date at which the court or authority became aware of the ‘later’ decision. Where there are two or more later decisions, for Art. 44 (and also for Art. 50) the most recent is the only relevant decision.8

3 See in this sense under Art. 27 Brussels IIbis Regulation McClean in Magnus/Mankowski, Brussels IIbis Regulation (2017) Art. 27 note 4. 4 Art. 50 (a). 5 Art. 50 (b). 6 Art. 47 (2) subpara. 2 of the preceding Regulation (which concerned the enforcement procedure) merely referred to irreconcilable later decisions of the Member State whose courts or authorities had also rendered the original decision which should be recognised; later decisions of the enforcement state were irrelevant; see thereto CJEU (C-211/10 PPU), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago), para. 76; Gruber/Möller, IPRax 2020, 393 (398); Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 47 note 4. 7 See CJEU (C-211/10 PPU), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago), para. 79 (although still under the Brussels IIbis Regulation). 8 See also Recital (56) sent. 4.

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The court or authority must take account of the irreconcilability of decisions of its own motion if it gains knowledge thereof. It is however not obliged to start without reason own investigations. Each affected person may apply for the non-recognition because of irreconcilability but the court or authority is not obliged to stay proceedings on such an application. Anyway, any person may at any time inform the court or authority of a relevant later decision and the court or authority must then react in staying proceedings or refusing a stay.

11

3. Application for withdrawal of certificate (Art. 44 (b)) The second alternative condition for the application of Art. 44 is that “the person against whom en- 12 forcement is sought has applied, in accordance with Art. 48, for the withdrawal of a certificate issued pursuant to Art. 47.” This alternative requires that, first, the person must be the person against whom the original decision shall be enforced and that, second, this person has made an application to withdraw the certificate. Applications of other persons are irrelevant for Art. 44. Without the withdrawal application by the right person the court or authority is not entitled to suspend proceedings. The certificate whose withdrawal is applied for must be one that has been issued under Art. 47. The 13 application must further comply with Art. 48. Art. 48 deals with both the rectification and the withdrawal of the Art. 47-certificate. Only the parts on withdrawal are relevant in the context of Art. 44 which provides that the involved person must have applied for withdrawal. According to 48 (2) sent. 1 the withdrawal can be applied for where the certificate was “wrongly granted, having regard to the requirements laid down in Art. 47.” The substantive requirements of Art. 47 are that all parties had the opportunity to be heard, that the child had the opportunity to express his or her views and that in case of a default decision the defaulting party received notice of the institution of proceedings in sufficient time or accepted the default decision.9 Further, in case of the special return decisions, for issuing the certificate the court or authority must have taken into account the reasons and facts on which the original decision was based (with respect to Art. 13 (1) (b) and (2) Hague Child Abduction Convention).10 If one of these requirements is not satisfied a nonetheless issued certificate must be withdrawn on application (for further details of these requirements see the comment to Art. 47). Because of the inherent uncertainties whether the application for a certificate-withdrawal will be successful (in the Member State where the original decision and the certificate were issued) the possibility of a stay of the proceedings in the recognition/enforcement Member State appears justified. 4. Discretion The court or authority has discretion both on whether it will stay proceedings at all and also to which 14 extent it will do so. Art. 44 gives only cautious hints how the discretion should be exercised. Art. 44 (b) shows that proceedings can be stayed if an application to withdraw the Art. 47-certificate is raised but evidently not yet decided. Suspension is therefore an option where relevant matters are still undecided and cannot be determined by the court or authority approached for recognition. However, it should be likely that the competent court or authority will decide the matter in reasonable time. Otherwise, the court or authority should consider a refusal of the recognition with the possibility to raise the matter at a later stage again. In a similar way Art. 44 (a) should be interpreted. Art. 50 supports this understanding. As mentioned (supra note 8), a stay should only be ordered if the irreconcilability of decisions is not yet clear but will be clarified by another competent court in reasonable time. This is for instance the case if an appeal is pending against the later irreconcilable decision.

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The discretion whether the proceedings in toto or only in part should be suspended should primarily depend on the question whether a reasonable part can be severed from the rest of the proceedings.

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Further considerations when exercising the discretion under Art. 44 should be the consequences of a stay or continuation of proceedings or an otherwise necessary dismissal of the application. Also, the

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9 See Art. 47 (3). 10 See Art. 47 (4).

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Art. 45 Brussels IIter Enforceable decisions facts on which the original decision is based and the situation of the involved persons, in particular of the child, should be taken into account.

V. Consequences 18

Stay of proceedings means that the proceedings are not continued for a certain period. The detailed effects of a stay are governed by the national procedural law of the suspending court or authority. When pronouncing a stay, the court or authority should state on which event the proceedings will be resumed.

Subsection 2 Enforceability and enforcement (Art. 45–Art. 46)

Article 45 Enforceable decisions 1. A decision referred to in Article 42(1) given in a Member State which is enforceable in that Member State shall be enforceable under this Section in the other Member States without any declaration of enforceability being required. 2. For the purposes of enforcement in another Member State of a decision referred to in point (a) of Article 42(1), the court of the Member State of origin may declare the decision provisionally enforceable notwithstanding any appeal. I. Contents and aim . . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . . .

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III. Direct enforceability (para. 1) . . . . . . . . . .

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IV. Declaration of provisional enforceability (para. 2) . . . . . . . . . . . . . . . . . . . . . . 12

I. Contents and aim 1

The Article is the first of two provisions which constitute Subsection 2 of Section 2 of Chapter IV of the Brussels IIter Regulation. This Subsection is for the enforcement phase the parallel to Subsection 1 for the recognition phase. It equally covers exclusively ‘privileged’ decisions in the sense of Art. 42 (1). The Subsection provides for certain specialties for these decisions. Its counterpart with respect to non-privileged decisions on paternal responsibility is Art. 34.

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Art. 45 (1) which must be interpreted autonomously provides that the ‘privileged’ decisions if they are enforceable in the Member State where they were rendered are also enforceable in all other Member States without any further exequatur procedure. In addition, Art. 45 (2) grants the courts of the Member State of origin the power to declare their access decisions provisionally enforceable even if an appeal is pending and even if the national law does not provide for such a possibility.

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Like Art. 43 for the recognition, Art. 45 aims at the direct and fast enforcement of the ‘privileged’ decisions. The underlying reason is to safeguard that these decisions are not rendered futile by lengthy court proceedings. The exequatur procedure in the enforcement state can delay the access rights or the return of the child for so long that the final enforcement of the decision would disturb the child’s new relations, in particular at the new place after an abduction, and could infringe the best interests of the child.1 It then can become necessary to refuse access rights2 or the child’s return only because of lapse of time. Therefore, both in access and return cases the respective decision should generally be promptly executed. But it must be admitted that a prompt return can hardly be achieved because 1 See Introduction 42–50 notes 1 et seq. (Magnus). 2 Or to modify the original access decision but preserving its essence (Art. 54 (1)).

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the provision covers only return decisions after a proceeding has led to the refusal of the return. Besides the interests of the child also the interests of the person holding the parental responsibility play a role as well as, in return cases, the argument that the abductor shall not triumph. Also the possibility to declare access decisions provisionally enforceable supports the aim of a ‘fast track’ enforcement of those decisions.

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The enforcement procedure under Art. 45 is optional (Art. 42 (2)). The normal procedure under Arts. 30 et seq. is always available instead. A party who wants to rely on an access or return decision is entitled to freely choose between the ‘normal’ and the ‘privileged’ procedure. Since the party must produce the correct accompanying certificate either of Annex V or of Annex VI it is always clear which procedure has been chosen. Whether a choice can be changed still afterwards is questionable but should be allowed in analogy to Art. 48.

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II. Legislative history The contents of Art. 45 was already contained in Art. 41 (1) subpara. 1 and 2 and Art. 42 (1) subpara. 1 Brussels IIbis Regulation, although in different formulation. The preceding Art. 42 (1) subpara. 2 granted the court also the power to declare “a judgment requiring the return of the child … enforceable” even if the national law did not allow for such a declaration. The current Art. 45 (2) provides this possibility only for access decisions.

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III. Direct enforceability (para. 1) Decisions which regulate the rights of access or order the return of a child under the circumstances 7 defined by Art. 42 (1) (a) and (b)3 have to be enforced without any exequatur procedure in the enforcement Member State if the respective certificate under Annex V or VI has been issued and is produced to the enforcement court or authority. According to Art. 51 (1) sent. 2, each Member State has to treat an access or return decision of another Member State like an own title (Art. 51 (1) sent 2). This holds also true for a penalty payment imposed by a decision concerning the rights of access because the penalty is merely ancillary in order to safeguard the rights of access.4 Under the Brussels IIbis Regulation the CJEU had further held that the enforcement of a return decision “in no way” depends on the prior adoption of a judgment on custody.5 This decision must now be seen in the light of the new Art. 29 (6) Brussels IIter Regulation to which Art. 42 (1) (b) refers. Art. 29 (6) – as well as Art. 47 (1) (b) – expressly cover only decisions “on the substance of rights of custody” which entail the return of the child. Consequently, isolated return decisions which are rendered independently of the custody proceedings thus do not fall under the provisions on ‘privileged’ decisions.6 Although the Subsection does not contain a rule on the grounds for refusal of enforcement,7 Art. 50 applies and restricts those grounds. The only reason for refusing the enforcement of a ‘privileged’ decision on access or return, that follows from the provisions in Section 2 of Chapter IV is the irreconcilability of a subsequent decision with the original prior decision (Art. 50). Even under the aspect of ordre public the covered decisions cannot be attacked in the enforcement state. However, where after the issue of the decision impediments arise which “would expose the child to a grave risk of physical or psychological harm” or where “any other significant change of circumstances” has occurred, the

3 4 5 6

As to those decisions, see Art. 42 notes 10 et seq. (Magnus). See CJEU (C-4/14), ECLI:EU:C:2015:563 (Christophe Bohez v. Ingrid Wiertz) paras. 49 et seq. CJEU (Case C-211/10 PPU), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 54. So thereto Art. 29 note 19 et seq. (Gallant); Art. 42 note 11 et seq. (Magnus); Gruber/Möller, IPRax 2020, 393 (397 et seq.). 7 This is in contrast to Art. 43 (1) which explicitly refers to Art. 50; why Art. 45 (1) does not the same is inexplainable.

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Art. 45 Brussels IIter Enforceable decisions court or authority of the enforcement Member State may suspend or – in case of lasting impediments – refuse enforcement.8 For further details see the comments to Arts. 50 and 56. 9

In principle, the ‘privileged’ decision must be finally enforceable. However, the court or authority of origin may declare an access decision against which an appeal is pending or possible provisionally enforceable (see thereto infra Art. 45 notes 12 et seq. [Magnus]).

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Art. 45 covers not only final decisions but in principle also provisional, including protective measures. These measures can, however, only be enforced if the respondent was summoned to appear or, where this was not the case, if “the decision containing the measure is served on the respondent prior to enforcement.”9

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The law of the Member State of enforcement governs the enforcement procedure unless the Arts. 51–63 already provide for a regulation.10

IV. Declaration of provisional enforceability (para. 2) 12

Art. 45 (2) grants the courts of the Member State of origin the power to declare an access decision in the sense of Art. 42 (1) (a) as provisionally enforceable “notwithstanding any appeal.” A similar regulation was already contained in Art. 41 (1) subpara. 2 and Art. 42 (1) subpara. 2 Brussels IIbis Regulation although it applied both to access and return decisions. Contrary to this preceding model, the text of Art. 45 (2) Brussels IIter Regulation allows the possibility to declare the provisional enforceability only for access decisions for which Art. 54 anyway reserves the court or authority of the enforcement state the right of (moderate) modification.11 The provision thus evidently seems to exclude this possibility for return decisions. Also, Art. 34 (2) limits the possibility to declare a decision provisionally enforceable expressly to access decisions. On the other hand, Art. 27 (6) and Recital (66) sent. 4 explicitly state that return decisions may also be declared provisionally enforceable. The Recital says: “In order to cater for situations of urgency, this Regulation therefore provides that certain decisions in matters of parental responsibility might be declared provisionally enforceable by the court of the Member State of origin even if still subject to appeal, namely decisions ordering the return of a child under the 1980 Hague Convention and decisions granting rights of access.” However, Art. 27 (6) and Recital (66) refer merely to return decisions under the Hague Convention. It may be questioned whether the reference to the Hague Convention equally includes return decisions rendered under Art. 29 (6). Only these return decisions fall in turn into the category of ‘privileged’ decisions (see Art. 42 (1) (b)). Art. 29 is part of the Chapter on international child abduction which deals with the Hague Convention; decisions under Art. 29 (6) could thus arguably be regarded as ‘return decisions under the Hague Convention.’ One could further argue that the prompt enforcement of these ‘privileged’ return decisions is of the same urgency as exists for the return decisions originally rendered under the Hague Convention. But it must be taken into account that the ‘privileged’ return decisions are a reaction on the fact that a return was already refused in accordance with the provisions of the Hague Convention. Thus, proceedings have already been litigated and consumed time; the immediate return of the child and the rescue of his or her relations and ties existing before the abduction is unlikely to be safeguarded anymore. In this situation it is reasonable to enforce only finally enforceable decisions and to exclude a provisional enforcement which could otherwise create a fait accompli. Also, the Commission’s Proposal for a Recast of the Brussels IIbis Regulation granted the possibility to declare a decision provisionally enforceable only to access decisions12 and corrected 8 See Art. 56 (4)-(6); Gruber/Möller, IPRax 2020, 393 (398); also, in the same sense to the Brussels IIbis Regulation: Andrae/Benicke in Nomos Kommentar BGB I (2021), Art. 45 note 3; Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 3; Hüßtege in Thomas/Putzo, Art. 41 note 1; Paraschas in Geimer/ Schütze, Art. 41 Brussels IIbis note 1; see also supra Art. 42 note 5 (Magnus). 9 Art. 2 (1) subpara. 3; see also Recital (59). 10 See Art. 51 (1). 11 See also Recital (61). 12 See Art. 30 (2) Proposal. The consideration in the Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final) p. 13 (“The proposal limits the number of possibilities to appeal a decision on return to one and explicitly invites a judge to consider whether a deci-

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the deviating solution of the Brussels IIbis Regulation. Thus, as provided for by Art. 45 (2), only access decisions can be declared provisionally enforceable. According to para. 2 the courts of the Member State of origin may declare the provisional enforceability of access decisions. This means that, first, it need not to be the court that rendered the original decision. Also, other competent courts of the Member State of origin are also allowed to declare the provisional enforceability. Second, the term “courts” includes, as generally in the Regulation, also any other authority of the Member State of origin “with jurisdiction in the matters falling within the scope of this Regulation.”13

13

It is the aim of Art. 45 (2) to enable the court (or authority) of the Member State of origin to declare 14 the provisional enforceability of access decisions even if this is not possible under the otherwise applicable national law. The provision “seeks to establish a level playing field as regards the cross-border enforcement of decisions in matters of parental responsibility among Member States” and to unify the possibility to declare access decisions provisionally enforceable.14 The court or authority of origin may therefore declare the provisional enforceability of such a decision even if an appeal is pending or still possible and even if the national law of procedure does not provide for the possibility of provisional enforceability. But the lack of this possibility in national law is no precondition for the court’s or authority’s power to declare the provisional enforceability; the institution is equally so entitled if national law allows for a declaration of provisional enforceability. The court or authority of origin has discretion to declare the provisional enforceability or to refrain 15 from it. The guidelines for the discretion are, first, the best interests of the child, second, the interests of the other involved persons, further, the prospects of an appeal against the original decision.15 The court or authority may declare the provisional enforceability of its own motion or on the application of an involved person. Even if not foreseen by the national law of procedure, the involved persons must be entitled to apply for a declaration of provisional enforceability in the institution’s discretion.

Article 46 Documents to be produced for enforcement 1. For the purposes of enforcement in a Member State of a decision referred to in Article 42 (1) which was given in another Member State, the party seeking enforcement shall provide the authority competent for enforcement with: (a) a copy of the decision, which satisfies the conditions necessary to establish its authenticity; and (b) the appropriate certificate issued pursuant to Article 47. 2. For the purposes of enforcement in a Member State of a decision referred to in point (a) of Article 42(1) which was given in another Member State, the authority competent for enforcement may, where necessary, require the applicant to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the certificate which specifies the obligation to be enforced. 3. For the purposes of enforcement in a Member State of a decision referred to in Article 42(1) which was given in another Member State, the authority competent for enforcement may require the applicant to provide a translation or transliteration, in accordance with Article 91, of the decision if it is unable to proceed without such a translation or transliteration. sion ordering return should be provisionally enforceable.”) is probably meant only with respect to return decisions directly under the Hague Convention. 13 See Art. 2 (2) no. (1). 14 Recital (66) sent. 1 and 4. 15 See, still to the Brussels IIbis Regulation, Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 41/42 note 2; Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 14; Stapf in Althammer, Art. 41 Brussels IIbis note 5.

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Art. 46 Brussels IIter Documents to be produced for enforcement I. Contents and aim . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . . III. 1. 2. 3. 4.

Necessary documents (para. 1) In general . . . . . . . . . . . . . Decision (para. 1 (a)) . . . . . . Certificate (para. 1 (b)) . . . . . Burden to produce documents .

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. 6 . 6 . 9 . 12 . 14

5. Effects of documents . . . . . . . . . . IV. Translation and transliteration (paras. 2 and 3) . . . . . . . . . . . . . 1. In general . . . . . . . . . . . . . . . . 2. Certificate (para. 2) . . . . . . . . . . . 3. Decision (para. 3) . . . . . . . . . . . . 4. Lack of translation or transliteration .

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I. Contents and aim 1

For the enforcement phase the Article is the parallel provision to what Art. 43 (2) and (3) constitute for the recognition phase of privileged decisions. With regard to the provisions for all other decisions on parental responsibility Art. 46 corresponds to Art. 35.1 Like all provisions of the Regulation, Art. 46 has to be interpreted autonomously. It requires at the enforcement level the same formal preconditions for the enforcement of access and return decisions in the sense of Art. 42 (1) as Art. 43 (2) and (3) do at the recognition level. Much of the comments there apply here, too. Necessary is the production of the decision which shall be enforced and the appropriate certificate issued under Art. 47. Instead of a time-consuming exequatur procedure the production of the fitting certificate is indispensable but suffices also for legitimating enforcement in all other Member States. Art. 46 therefore supports the aim of a fast and easy enforcement of access and specific return decisions. Taking into account that children need stable and continuing relations on the one hand and adapt rather rapidly to new relations on the other,2 access and return must be rather promptly enforced after a decision on that issue was rendered because, for instance, the child’s parents separated or the child was brought to another Member State. Only then can an existing relationship be continued by access or return and does not disturb relations the child has already established anew. Access and return decisions should not be rendered futile by lengthy court proceedings.

2

While Art. 43 (3) merely refers to Art. 31 (2) and (3), Art. 46 (2) and (3) repeat essentially these subparagraphs of Art. 31 with only little variations. Art. 46 (2) and (3) grant the court or authority the procedural possibility to require a translation or transliteration of otherwise non-understandable parts of the decision or of the respective certificate. This also supports the aim of the Subsection on enforceability and enforcement to permit a fast and easy enforcement of the covered decisions as well as to safeguard their stability by limiting the grounds for their challenge.

II. Legislative history 3

The predecessor of Art. 46 was mainly Art. 45 Brussels IIbis Regulation. However, the current Art. 46 also contains parts of Art. 41 (1) subpara. 1 and Art. 42 (1) subpara. 1 Brussels IIbis Regulation. Contrary to Art. 45 (2) subpara. 1 Brussels IIbis Regulation, the present provision does no longer require a mandatory translation of the parts of the certificate which must be filled by an individual text. It is now in the court’s or authority’s discretion whether or not to demand a translation of these parts.3 The current Art. 46 is clearer in structure and easier understandable than the comparable former provisions although the parallelism between the present Arts. 43 and 46 could have been better expressed.

4

The current Art. 46 (2) and (3) have not retained para. (2) subpara. 2 of Art. 45 Brussels IIbis Regulation. The old provision dealt with the language into which the translation had to be executed. This problem is now regulated by Art. 91 Brussels IIter Regulation in a general way. 1 However, Art. 35 (2) on the enforcement of provisional measures has no parallel in Art. 46. The provisions for privileged decisions are applicable to provisional measures only under specific circumstances; see Art. 2 (1) (b) subpara. 2. 2 See Introductory Remarks before Art. 42 note 2 (Magnus). 3 See Art. 46 (2).

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Like Art. 31 (2) and (3), also Art. 46 (2) and (3) covers not only the case of translation but also of transliteration which the Brussels IIbis Regulation did not yet mention.

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III. Necessary documents (para. 1) 1. In general For the enforcement of an access or return decision, Art. 46 (1) requires that two documents must be presented: the decision and a certificate which certifies the enforceability of the decision. It is further an exclusive regulation.4 The mentioned documents cannot be replaced with equivalent other documents nor be entirely dispensed with.5 Section 2 of Chapter IV of the Brussels IIter Regulation does not contain a provision similar to Art. 32 (1) which allows a substitution or dispense. Moreover, the specific and strictly formalised character of the ‘privileged’ procedure for access rights and return orders is irreconcilable with a substitution of, or dispense with, any of the necessary documents. On the other hand is the court or authority not entitled to request further documents for the enforcement of the decision in question.

6

A party who wants to enforce a decision covered by Art. 42 (1) must therefore produce, first, at least 7 a copy of the decision which shall be enforced, second, a particular certificate the requirements for whose issue are detailed in Art. 47. Annex V provides a standardised form for the certificate for access decisions; Annex VI does the same for return decisions in the sense of Art. 42 (1) (b). Although authentic instruments and agreements on access or return are generally treated like decisions (see Art. 65) with their own standardised form in Annex IX,6 the Regulation’s Section on the privileged procedure does not apply to them.7

8

2. Decision (para. 1 (a)) The primary document – the decision which shall be enforced – can always be produced as original. But like in Art. 31 (1) (a) a copy of the decision suffices. However, a copy is needed “which satisfies the conditions necessary to establish its authenticity”. This formulation has the same meaning as in Art. 31 (1) (a) and expresses that the copy must meet the requirements of authentication prescribed by the Member State where the decision has been rendered.8 Besides that, no legalisation or other formality is required in order to prove the authenticity of the documents (see Art. 90).

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As under Art. 31 (1) (a), the law of the decision state defines under which conditions a copy of a decision 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 or authority which rendered the decision.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 decision state.

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4 Also, under the Brussels IIbis Regulation, e.g., Stapf in Althammer, Art. 45 Brussels IIbis note 3. 5 See also, with respect to the corresponding regulation in the Brussels IIbis Regulation, Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 45 note 1; Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 2; Stapf in Althammer, Art. 45 Brussels IIbis note 3. 6 See Art. 66 (1) subpara. 1 (b). 7 Art. 65 (2) sent. 2 refers merely to Section 1 and 3 of Chapter IV but does not mention Section 2 of this Chapter thereby evidently excluding its analogous application to authentic instruments and agreements. 8 Report Borrás, note 103 (although with respect to what now is Art. 31 since special provisions for privileged decisions were not yet contained); Andrae in NomosKommBGB I (2021), Brussels IIbis Regulation Art. 37 note 2; Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 7; Stapf in Althammer, Art. 45 Brussels IIbis note 3. 9 See for instance for Germany: § 317 para. (4) ZPO. 10 See already Art. 31 note 5 (de Lima Pinheiro); under the Brussels IIbis Regulation Stapf in Althammer, Art. 45 Brussels IIbis note 3.

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The decision must only be produced in its original language; an accompanying translation into the language of the enforcement state is not necessary (though admissible). When the court or authority of the enforcement state may request a translation or transliteration of the decision is provided for in para. 3 (see infra Art. 46 note 24 et seq. [Magnus]). 3. Certificate (para. 1 (b))

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Besides the decision the certificate regulated in Art. 47 must be produced. This is the certificate in the standard form of Annex V in case of a decision on rights of access and of Annex VI in case of a decision on the return of the child. The certificate must be one which the court or authority of the original decision has issued,11 though not necessarily the same person who has rendered the original decision. Furthermore, the original of this certificate must be produced.12 A copy does not suffice.

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Like for the decision, the court or authority may request a translation or transliteration of the free text fields of the respective certificate (para. 2 and infra Art. 46 note 20 et seq. [Magnus]). 4. Burden to produce documents

14

It is self-evident that the person who wants to enforce a decision either on a right of access or on the return of the child is obliged to produce the necessary documents. 5. Effects of documents

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If the necessary documents have been furnished the decision on access or return must be enforced. The competent court or authority of the enforcement Member State need only, and is only allowed to, check the formal requirements – original or authenticated copy of the decision, original of the certificate and in the cases of paras. 2 and 3 the formalities of the eventually requested translation. 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 decision is admitted.13

16

Can either the decision or the certificate or the necessary partial translation not be produced then the application for the ‘privileged’ enforcement must be dismissed, generally after a time for the production of the missing document(s) has been set and has lapsed.14 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.15 Mere writing errors which do not cast doubt on the contents of the certificate should, however, not hinder the enforcement of the decision.16 Where the institution of enforcement sees or suspects that the certificate was wrongly granted it is not entitled to refuse enforcement but should immediately inform the court or authority of origin which shall withdraw the certificate if it was in fact wrongly granted in the sense of Art. 48 (2).

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If there exists more than one original certificate and if there are differences between the certificates only the most recent should count. 11 See Art. 47 (1). In the same sense – already under the Brussels IIbis Regulation – Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 9. 12 So, under the Brussels IIbis Regulation, Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 45 note 4; 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; Stapf in Althammer, Art. 45 Brussels IIbis note 3. 13 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; Stapf in Althammer, Art. 45 Brussels IIbis note 3; see also the comment on Art. 31 notes 1 et seq. (de Lima Pinheiro). 14 Also Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 4. 15 Paraschas in Geimer/Schütze, Art. 45 Brussels IIbis note 2. 16 In the same sense Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 note 5.

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IV. Translation and transliteration (paras. 2 and 3) 1. In general In general, the necessary documents need not be translated. However, under certain circumstances, 18 the court or authority of the enforcement Member State can request a full translation of the decision and a partial translation of the accompanying certificate. In both cases also a mere transliteration can be requested which converts the scripture of words from one alphabet into another (e.g., from Cyrillic into Latin letters). As far as a translation or transliteration becomes necessary, the applicant must provide it.17 Further details of translation and transliteration (into which language, by whom etc.) are regulated by Art. 91 (see the comments there). The costs of the translation or transliteration belong to the costs of the proceedings.

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2. Certificate (para. 2) Whereas the Brussels IIbis Regulation still required a mandatory translation of the free text fields of 20 the respective certificates,18 the Recast transformed this obligation into a discretionary right of the court or authority. According to Art. 46 (2), now the authority competent for enforcement can request the translation or transliteration of the free text fields of the Annex V- or Annex VI-form “where necessary.”19 The discretion what is necessary is certainly wider than that under para. 3 where a translation or transliteration can only be requested if the court or authority is otherwise unable to proceed with the case at hand. Two points require short discussion: first, para. 2 uses for the first time in this Subsection the expression “authority competent for enforcement.” According to Recital 60 sent. 1 this expression “could include courts, bailiffs and any other authorities as determined by national law.” Recital (60) sent. 2 provides further that, where the Regulation mentions courts in addition to the expression “authorities competent for enforcement” this should reserve certain decisions to courts, for instance, to review acts of the authority competent for enforcement. Art. 46 (2) and (3) merely use “the authority competent for enforcement.” Therefore, both paras. address courts as well as other competent authorities of the enforcement Member State as, by the way, Art. 31 (2) and (3) in connection with Art. 43 (3) expressly do for the recognition phase.

21

Second, it is surprising that para. 2 shall concern only access decisions since the para. refers explicitly 22 to Art. 42 (1) (a) alone and not to Art. 42 (1) (b) which deals with return decisions. A supposed reason could be that the appropriate return certificate under Annex VI does not contain free text fields which can require translation or transliteration. However, this is not the case as Nos. 6, 16.2.1 and 18.2 of Annex VI show where free text can be filled in if needed. Thus, a translation or transliteration of these fields could be in the same way necessary as in the case of the certificate for an access decision. Moreover, there would be a strange inconsistency between Art. 31 (2) to which Art. 43 (3) expressly refers and Art. 46 (2): Art. 31 (2) enables the court or authority to request a translation or transliteration of the translatable content of the free text fields in the certificate for the recognition both of an access and return decision. That for enforcement purposes a translation or transliteration should not be possible for return decisions would be an unexplained contradiction, all the more so as the recognisability is a necessary precondition for enforcement. In this author’s view the words “point (a) of ” in Art. 46 (2) have to be read as deleted. It has been rightly requested that the judge or authority of origin who issues the certificate should be as careful and explicit as possible, in particular when filling free text fields of the respective certificate.20 This would reduce the risk that the court or authority of the enforcement state would request

17 18 19 20

See Art. 31 (2) and (3). Art. 45 (2) subpara. 1 Brussels IIbis Regulation. The same formulation is used in Art. 35 (3) and (Art. 46 (2). Rauscher in Rauscher, Brussels IIbis Regulation Art. 45 notes 11 et seq.

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Art. 47 Brussels IIter Issuance of the certificate an additional translation of the decision or of further parts of the certificate.21 Any necessary translation and transliteration would require further time and money. 3. Decision (para. 3) 24

According to para. 3, the court or authority22 can require a full or partial translation or mere transliteration “if it is unable to proceed without such a translation or transliteration.” A mere transliteration will rarely suffice. Whether the court or authority cannot proceed without a (full) translation lies in its discretion. However, the formulation which is identical with that in Art. 31 (3) and 35 (4) points to a rather high threshold which the court or authority should adopt for requiring a full translation: The translation or transliteration of the entire decision must be indispensable for the further proceedings. The threshold takes account of the additional time and costs which a full translation necessitates.

25

Contrary to Art. 31 (3), Art. 46 (3) does not require that a translation or transliteration can only be requested “in addition to a translation or transliteration of the translatable content of the free text fields of the certificate.” Nonetheless, also under Art. 46 (3) the court or authority should consider whether a translation or transliteration of the respective parts of the certificate could not suffice. Only if it finds that this is not the case and that it cannot proceed without the translation or transliteration of the decision as basis for the latter’s enforcement it can request a full or partial translation or transliteration. 4. Lack of translation or transliteration

26

If an applicant does not provide the requested translation or transliteration the court is entitled to dismiss the application based on the privileged procedure under Art. 42 et seq. For, neither Art. 46 (2) and (3) nor Art. 43 (3) refer to Art. 32 which enables the court or authority to set a time limit for producing the required documents and to even dispense with them. Nonetheless, when requiring a translation, the court or authority should always set a time frame for the production of the documents accompanied by the warning that after the unsuccessful lapse of that time the privileged enforcement will be refused. An application for enforcement under Arts. 30 et seq. remains still available.

Subsection 3 Certificate for privileged decisions (Art. 47–Art. 49)

Article 47 Issuance of the certificate 1. The court that has given a decision as referred to in Article 42(1) shall, upon application by a party, issue a certificate for: (a) a decision granting rights of access, using the form set out in Annex V; (b) a decision on the substance of rights of custody entailing the return of a child and given pursuant to Article 29(6), using the form set out in Annex VI. 2. The certificate shall be completed and issued in the language of the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by a party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields.

21 Rauscher in Rauscher, Art. 45 notes 11 et seq. 22 See thereto supra Art. 46 note 21 (Magnus).

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3. The court shall issue the certificate only if the following conditions are met: (a) all parties were given an opportunity to be heard; (b) the child was given an opportunity to express his or her views in accordance with Article 21; be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (c) where the decision was given in default of appearance either: (i) 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 (ii) it is established that the person defaulting accepted the decision unequivocally. 4. Without prejudice to paragraph 3 of this Article, the certificate for a decision referred to in point (b) of Article 42(1) shall only be issued if, in giving its decision, the court has taken into account the reasons for and the facts underlying the prior decision given in another Member State pursuant to point (b) of Article 13(1), or Article 13(2), of the 1980 Hague Convention. 5. The certificate shall take effect only within the limits for the enforceability of the decision. 6. No challenges other than those referred to in Article 48 shall lie against the issuance of the certificate. I. Contents and aim . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . .

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III. 1. 2. 3.

Issue of certificate (para. 1) In general . . . . . . . . . . . Competence . . . . . . . . . . Entitlement . . . . . . . . . .

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. 7 . 7 . 11 . 14

IV. Language of the certificate (para. 2) . . . . 16 V. Opportunity to be heard or to defend (para. 3) . . . . . . . . . . . . . . . . . . . . . 19 1. In general . . . . . . . . . . . . . . . . . . . . 19

2. Opportunity of all parties concerned to be heard (para. 3 (a)) . . . . . . . . . . . . . . . 23 3. Opportunity of the child to be heard (para. 3 (b)) . . . . . . . . . . . . . . . . . . . 29 4. Certificate for default decisions (para. 3 (c)) 33 VI. Certificate for return decisions (para. 4) . 38 VII. Effects of the certificate (para. 5) . . . . . . 40 VIII. Remedies against the issued certificate (para. 6) . . . . . . . . . . . . . . . . . . . . . 43

I. Contents and aim Art. 47 is the first provision of Subsection 3 of Section 2 of Chapter IV. This subsection ensembles the provisions on the certificate without the production of which a ‘privileged’ decision cannot be enforced. Art. 47 et seq. have their counterpart in Arts. 36 and 37 which form the corresponding subsection for the non-‘privileged’ decisions on parental responsibility.

1

Art. 47 lists the conditions for the issuance and the main effects of the certificate that is the indispensable formal requirement for the direct enforcement of an access or return decision in the sense of Art. 42 (1). The issuance of the certificate by the court or authority which rendered the decision the enforcement of which is sought replaces any special exequatur procedure in the Member State of enforcement. This serves the overall aim of the whole Section 2 of Chapter IV of a fast and formally easy enforcement of the ‘privileged’ decision (a system of “expeditious enforcement of judgments”).1

2

The certificate is a standardised form which is set out in Annex V for access decisions and in Annex VI for return decisions in the sense of Art. 42 (1) (b). Since the order of the form is identical in all EU languages and contains, with few exceptions, boxes which need only be ticked, it can be easily understood even in other languages. This facilitates significantly its acceptance and thus the rapid enforcement of the underlying decision.

3

1 CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 47 (although under the preceding Regulation).

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Art. 47 (1) determines which Annex provides the appropriate form for access decisions on the one hand and for return decisions on the other. Para. 2 decides in which language the certificate must and can be completed and denies an obligation of the court or authority to translate or transliterate the texts of the certificate’s free text fields. Para. 3 states essential preconditions which grant a fair trial, namely that all parties and in particular the child had to be given an opportunity to express the own viewpoint; in case of a default decision the defaulting party must have had a fair chance to defend the own position. Para. 4 concerns the certificate for return decisions and provides that the certificate shall only be issued if the return decision took account of the reasons of the prior decision that refused the return of the child. Para. 5 points to the fact that the certificate has no wider effect on the enforceability than the underlying decision. Para. 6 clarifies that the only remedy in regard of the certificate is its rectification or withdrawal under Art. 48.

II. Legislative history 5

Most of the content of the current Art. 47 was already contained in the Brussels IIbis Regulation although in different provisions, namely in Art. 41 (2), Art. 42 (2), 43 (2), 44 and 45 Brussels IIbis Regulation. The main essence of the preceding regulation was thus retained; significant differences are that the certificate now is issued only upon application2 and that no translation even of the free text fields of the certificate is required unless the court or authority so requests.3 Furthermore, Arts. 47 et seq. do not apply to authentic documents and agreements.4

6

Further modifications of the preceding regulation serve the aim of clarification, for instance, that the formulation “judge of origin (who delivered the judgment)”5 was replaced with “court that has given the decision.” The old formulation raised doubts whether the court as such or the judge in person who had rendered the judgment had to issue the certificate.

III. Issue of certificate (para. 1) 1. In general 7

Para. 1 provides that the court which rendered the ‘privileged’ decision shall also issue the appropriate certificate. The para. further prescribes that the standardised form of Annex V and VI of the Regulation must be used for the ‘fast track’ enforcement concerning decisions on rights of access and specific return decisions.

8

The form of the Annex V-certificate is tailored for access decisions, that of the Annex VI-certificate for return decisions in the sense of Art. 42 (1) (b). Authentic documents and agreements concerning rights of access or the return of the child cannot be enforced via the ‘privileged’ procedure since Art. 65 (2) sent. 2 does not refer for these instruments to Section 2 of Chapter IV but only to Sections 1 and 3 of Chapter IV which apply to non-privileged decisions. Therefore, authentic documents and agreements can only be enforced under the general rules (Arts. 34 et seq.). This is in partial contrast to the solution under the Brussels IIbis Regulation under which the ‘fast track’ procedure could be used for authentic documents and agreements on rights of access6 but not for return decisions because for the latter Art. 11 (8) required a judgment.7

2 See Art. 47 (1). Under the Brussels IIbis Regulation the judge had to issue the certificate in principle ex officio (Art. 41 (3) and Art. 42 (2) subpara. 3). 3 See Art. 47 (2). However, “where necessary” the court or authority of the enforcement Member State can request a translation of the free text fields of the certificate; see Art. 46(2). 4 See further infra Art. 47 note 8 (Magnus). 5 See Art. 41 (2) subpara. 1 and Art. 42 (2) subpara. 1 Brussels IIbis Regulation. 6 See, for the Brussels IIbis Regulation, Magnus in Magnus/Mankowski, Brussels IIbis Regulation (2017) Art. 41 note 17; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 13; Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 19. 7 Rauscher in Rauscher, Brussels IIbis Regulation Art. 42 note 8.

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Under the Brussels IIbis Regulation, the CJEU held that the issue of the certificate in no way required 9 the prior adoption of a judgment on custody.8 Under the current Regulation the ‘privileged’ procedure applies to return decisions only if they concern “the substance of rights of custody entailing the return of a child and sc. are given pursuant to Art. 29(6).”9 For the certificate for an access decision it is unnecessary that the decision concerns “the substance of rights of custody.” The issue of a certificate for an isolated access decision is perfectly in order. The contents of the certificate is standardised by Annex V and VI. The issuer bears the responsibility 10 that the certificate is correct and that the attested facts are true. The order of the certificates is designed in parallel and must show: the Member State of origin; the court or authority which issues the certificate and delivered the decision; date and reference number of the decision and eventual provisional measures ordered in it; the name, birthdate and -place of the child or children; the name, address, birthdate and -place of the person(s) who were granted access rights resp. to whom the child has to be returned as well as of the person(s) against whom the enforcement is sought; the access rights and eventual arrangements thereon respectively for the return; the attestation that and to which extent the decision is enforceable; that the decision was served on the respondent(s); in particular, information that all parties and the child(ren) were given the opportunity of being heard (the child(ren) being capable of forming an own view) and of an eventual default decision. It must be further attested that the reasons for and evidence underlying the decision issued pursuant to Art. 13 (1) (b) and (2) Hague Child Abduction Convention have been taken into account.10 Finally, the certificate must state who, if any of the involved persons, was granted legal aid. 2. Competence Only the court or authority11 that has given the underlying decision is competent to issue the appro- 11 priate certificate. Already under the Brussels IIbis Regulation it was common ground that no other institutions than those of the Member State of the decision are entitled to issue the certificate.12 Certificates issued in other states have no effect and are a nullity. Further, it should be certain that only a person who is judge or an official with equivalent powers of an authority in the sense of Art. 2 (2) no. 113 can issue the certificate.14 That means that not only a formal judge but also another person with judicial powers in matters of access or return of the child can be competent. A certificate merely certified by a court’s or authority’s clerk does on the contrary not suffice.15 The underlying reason is that the issuing person must examine whether the requirements of Art. 47 (3) and (4) are met. This should lie in the hands of a person qualified and authorised to exercise judicial powers.

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CJEU (Case C-211/10 PPU), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 54. See Art. 47 (1) (b). See Annex VI no. 15; further infra Art. 47 note 22 (Magnus). The term “court” includes other authorities competent for rendering decisions on rights of access or the specific return decisions covered by Art. 42 et seq.; see Art. 2 (2) no. (1) and Recital (14) sent. 1. Andrae/Benicke in Nomos Kommentar BGB I (2021), 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; Lowe/Everall/Nichols, note 34.10; 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 (4th ed. 2013), Art. 21 EGBGB Anh. I note 242. Art. 2 no. 2 Brussels IIbis Regulation still contained a definition of judge and comprised also “an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation.”; see thereto Pintens in Magnus/Mankowski, Brussels IIbis Regulation (2017) Art. 2 note 4. The Recast has deleted this definition because the new Regulation uses merely the expression “court” or “authority.” Under the Brussels IIbis Regulation 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. 47 Brussels IIter Issuance of the certificate 13

Under the Brussels IIbis Regulation it was disputed what the former formulation “judge of origin” meant: should the judge in person who delivered the judgment16 or also another judge17 or even another authority18 be competent for the issuance of the certificate? The Recast has clarified this problem by replacing “judge of origin” with “court” (which includes other competent authorities19). Now, the court or authority that delivered the decision is also competent to issue the appropriate certificate. This means, first, that no other institution of the Member State of origin has jurisdiction to issue the certificate. Second, in general the same judge or official who had rendered the decision must issue the certificate.20 Therefore, if the decision stems from an appeal court or even from the supreme court the person or persons there must issue the certificate.21 However, another person competent for access or return decisions of the same court or authority should also suffice. This latter possibility takes account of the fact that it may be a bench of several persons who decided. Then, each of them must be entitled to certify the decision. Further, if the very same person who had delivered the decision has already left the court/authority or has died, another person (e.g., the final or temporary successor) of the same institution must be able to issue the certificate. It has been noted that the issuance of the certificate by the same person who has rendered the decision is no real control.22 However, the aim of the certificate is not the control of the decision but the assurance that the decision has indeed been rendered in the certified form. To determine whether this is the case the abilities of a judge or other person with equivalent powers are necessary and in principle the person who has rendered the decision is best apt for this purpose, in particular, because he or she will regularly know the family situation already quite well. But it has to be admitted that a great deal of trust is accorded to the person, court or other authority that rendered the decision and issues also the certificate. 3. Entitlement

14

According to Art. 47 (1) the certificate is issued only “upon application of a party.” Contrary to the Brussels IIbis Regulation23 the court or authority is not obliged to issue the certificate ex officio. The party who is granted rights of access or who can request the return of the child is certainly entitled to apply for the Annex V- or Annex VI-certificate and to receive it. It is no inherent precondition that this party intends to immediately enforce the respective decision.24 But the formulation “upon application of a party” indicates that also other persons shall be entitled to apply for the certificate. The circle of persons includes all other parties involved in the proceedings and also the child even though he or she is no formal party. Where there are several persons who have a justified interest in the possession of the certificate because they may need it for the enforcement of their access or return rights, each of them is entitled to apply for and receive a certificate.

15

The entitled persons may request the issuance of the certificate together with the decision on access or return but also at a later point of time and even if no cross-border situation existed at the time when the access or return decision was rendered25 or the issuance of the certificate is requested. 16 In this sense Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 9; Meyer-Götz/Noltemeier, FPR 2004, 296 (299); Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 17; Stapf in Althammer, Art. 42 Brussels IIbis note 9. 17 In this sense Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 41/42 note 20; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 11. 18 Paraschas in Geimer/Schütze, Art. 40 Brussels IIbis note 11. 19 See supra fn. 7. 20 This consequence is supported by Art. 47 (4) because only a person involved in the delivery of the decision can precisely know whether the reasons and facts mentioned there were taken into account. 21 Also Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 42 note 5 (referring to the German solution [§ 48 (2) IntFamRG]). 22 See Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 17; Solomon, FamRZ 2004, 1409 (1419). 23 Under the Brussels IIbis Regulation (Art. 41 (3), Art. 42 (2) subpara. 3) the certificate had to be issued ex officio with the exception that this rule applied to certificates on access rights only if a cross-border situation existed already at the time when the decision was delivered. If that was not the case the certificate was issued merely upon request after a cross-border situation had ensued. 24 This is in contrast to the regulation in Art. 41 (3) Brussels IIbis Regulation (see preceding note). 25 Even if the court or authority of origin assumed its jurisdiction disregarding Arts. 7 et seq. the decision can be enforced.

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IV. Language of the certificate (para. 2) Art. 47 (2) concerns the language of the certificate. In principle, this is – as under the Brussels IIbis Regulation26 – the language in which the underlying decision was delivered. Since most parts of the Annex V and VI-form are boxes which need only be ticked and since they have the same number in all EU-languages there remain few free text fields which must be filled in the language – and the scripture – of the decision. The entitled party can always request the certificate in this language.

16

According to para. 2 sent. 2, if a party so requests the certificate “may also be issued in another official language of the institutions of the European Union.” This rule appears to grant a certain degree of discretion to the court or authority that is approached for a certificate in another language. The discretion concerns whether or not to issue the only certificate – or a second certificate – in another language than the language of the decision. The discretion should be governed by the consideration whether the applicant has a reasonable ground for the request, in particular, because he or she intends to use the certificate for the enforcement of the decision in a Member State with another language than in the Member State of origin. If in that case it is sufficiently likely that the enforcement will be attempted soon, the discretion should be reduced to nil and the institution should be obliged to issue the certificate in the requested language. The applicant should then be entitled “also” to the certificate in the language of the decision (which may be the only language he or she understands). The other language that can be requested can only be an official language of the EU.

17

Even if the court or other authority delivers the certificate in another language (than that of the deci- 18 sion) the institution need not furnish a translation or transliteration of the content which the free text fields of the certificate in the language of the decision contain. If the applicant needs a translation or transliteration of these parts, he or she must care for it.

V. Opportunity to be heard or to defend (para. 3) 1. In general The certificate shall only be issued if the listed hearing or notice requirements are met. The involved 19 persons and in particular the child must have had the opportunity to be heard or, in case of default decisions, to defend their case before the decision is rendered. It is self-evident that these opportunities must be given in the procedure in the Member State of origin which led to the access or return decision. The observance of the right to be heard and to be informed is a commandment of the fair trial principle which is also enshrined in Art. 47 (2) of the EU Charter of Fundamental Rights. Art. 47 (3) Brussels IIter, therefore, requires the attestation that the involved persons had this opportunity. The court or authority 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 or authority of the enforcement state must generally trust it; the institution of the enforcement Member State is not entitled to refuse the recognition or enforcement because of the incorrectness of the certificate.27 However, this institution should contact the judge (or other official) of origin and inform him or her of doubts or an incorrectness of the certificate which has become apparent. According to Art. 48, the court or authority of origin can then rectify or even withdraw the certificate. Because the child is regularly in the enforcement Member State his or her hearing by the court or authority of origin is often not easy, in particular if the parent in the enforcement state is, as frequently, not cooperative.28 The institution of origin must use all possibilities of modern communication techniques (video-conference etc.) and shall also seek the cooperation with the institution in the enforcement Member State.29 26 Art. 41 (2) subpara. 2 and Art. 42 (2) subpara. 4 Brussels IIbis Regulation. 27 See – under the Brussels IIbis Regulation – CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 48 et seq. 28 The factual difficulties of hearing in particular rather young children and an often uncooperative attitude of the relevant parent (or other caring person) can pose serious problems and hurdles for the necessary hearing; see thereto also Balthasar-Wach, 287 et seq. 29 See Recitals 39 and 53.

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The conditions listed in Art. 47 (3) (a) and (b) must be met in all cases where certificates concerning access or return decisions shall be issued, irrespective whether or not the decision was a default decision, whereas the default rules in lit. (c) apply, as is self-evident, only in default cases.

21

Where the requirements of para. 3 are not met, the court or authority is not allowed to issue the certificate. The issuing institution has thus a strict obligation to carefully examine whether these requirements are satisfied. This will regularly be an easy task if the person who led the proceedings and rendered the decision also issues the certificate. If these are different persons, the issuer of the certificate must examine in the files and eventually contact the person that rendered the decision whether the opportunity to be heard was correctly given. Since the standard forms of the appropriate certificates merely contain boxes for yes or no answers,30 the enforcement court or authority must rely on the correctness of the answers. This places a strong burden on any issuer of a certificate to fill it correctly. It is still relevant what the CJEU insofar stated under the Brussels IIbis Regulation: “It follows that, before a court of the Member State of origin can issue a certificate which accords with the requirements of [what now is Art. 47 (3)], that court must ensure that, having regard to the child’s best interests and all the circumstances of the individual case, the judgement to be certified was made with due regard to the child’s right freely to express his or her views and that a genuine and effective opportunity to express those views was offered to the child taking into account the procedural means of national law and the instruments of international judicial cooperation.”31

22

Where a certificate has been issued although the requirements of Art. 47 (3) are not met, Art. 48 provides for the – only – remedy: According to Art. 48 (1), the certificate can be rectified “where, due to a material error or omission, there is a discrepancy between the decision and the certificate.” According to Art. 48 (2), the certificate can even be withdrawn where it is “wrongly granted, having regard to the requirements laid down in Art. 47.” For the details of these provisions see the comment on Art. 48. 2. Opportunity of all parties concerned to be heard (para. 3 (a))

23

According to Art. 47 (3) (a) the certificate shall not be issued unless “all parties concerned” were given an opportunity to be heard.32 This expression corresponds to the formulation in Art. 41 (2) (b) Brussels IIbis Regulation on access decisions whereas Art. 42 (2) (b) of the old Regulation (on return decisions) merely used “the parties”. Contrary to the predecessor, the current provision no longer distinguishes between the two kinds of decisions. Nonetheless, there exist factual differences between the effects of access and return decisions on other persons. In access disputes, the access rights granted to one person necessarily affect the access rights of all other actual and even potential holders of access rights; in return cases of the kind covered by Art. 42 (1) (b) only the abductor and the person requesting the return as well as the child him- or herself are directly involved. The interpretation of the provision must take account of this difference.

24

“All parties concerned”33 is wider a term than “the parties” as used in the old Art. 42 (2) (b) Brussels IIbis Regulation. “All parties concerned” can and should be interpreted as to include even persons who are no direct parties to the litigation in question but have an evident interest in the outcome of it, whereas the expression “the parties” appears to confine its ambit to the actual parties of the litigation in question.34

25

It goes without saying that the expression “all parties concerned” refers to the parties of the proceedings which led to the decision to be certified. These persons must have had the chance to influence 30 The Annexes V and VI contain the question whether all parties (Point 11) had the chance to be heard and whether the child (points 12 and 13) was capable of forming an own view and had the chance to be heard, too. However, merely a box (yes, resp. no) must be ticked. 31 CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 68. 32 The omission of this opportunity in proceedings on parental responsibility is a ground not to recognise and enforce a decision that infringes a person’s parental responsibility; see Art. 39 (1) (c) and Art. 41. 33 This formulation was already used in Art. 41 (2) (b) Brussels IIbis Regulation. 34 That was the interpretation of Art. 42 (2) (b) Brussels IIbis Regulation; see Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 41/42 note 6.

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the decision by presenting their view. If that was not the case their hearing cannot be made up for in the proceedings for the issue of the certificate. Under the Brussels IIbis Regulation it was disputed whether the law of the judgment state35 or the 26 Regulation autonomously36 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 or authority which delivers the decision sees no reason not to follow the law of its own country by which it is bound. On the other hand, if the case is from the beginning on of an international character or acquires such character later, the Brussels IIbis Regulation as the applicable international 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.37 The definitions in Art. 2 no. 7 and 8 and the provision of Art. 39 (1) (d) provide sufficient material for such an interpretation. From them it can be deduced that not only the direct parties of the access or return proceedings must be given the opportunity to be heard but also all persons who could be concerned in the sense of Art. 39 (1) (d). Thus, in respect of access decisions, persons who can claim that the decision infringes their parental responsibility, for instance a grandparent with access rights or even a child care institution,38 must also have the chance to 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. With respect to return decisions, it is hardly imaginable that other persons than the concrete parties and the child must be given this opportunity. The procedural way in which persons are given this opportunity and how the hearing itself is to be 27 conducted is governed by national law.39 However, national law must comply with the EU-standard in this respect as expressed in Recital (39) para. 1 sent. 1 and case law of the CJEU: the child or an entitled person must be given “a genuine and effective opportunity to express his or her views.”40 Although the Recital addresses only the child’s opportunity of being heard, this principle is to be generalised for the respective opportunity of all persons involved. 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 matters41 can and should be used.42 This will be regularly necessary with respect to the person that resides in another Member State than that where the court or authority decides. For default cases, the provisions on service of documents of Regulation 1393/2007 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. 1348/200043 apply among the Member States.44 If the parties concerned were not given a sufficient possibility of being heard the certificate must not be issued. The possibility of being heard suffices; it is not required that the concerned persons in fact used the possibility and expressed their views.45 However, they have the right to be heard; if they insist, they must be heard. 35 In this sense under the Brussels IIbis Regulation: Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 5; Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 26. 36 In this sense under the old Regulation: Magnus in Magnus/Mankowski, Brussels IIbis Regulation Art. 41 note 24; open: Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 41 note 10. 37 See Recital (54). 38 See Art. 2 (2) no. 8; further Art. 2 note 21 et seq. (Pintens). 39 Still to the Brussels IIbis Regulation: Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 45 note 7; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 5; Rauscher in Rauscher, Brussels IIbis Regulation Art. 41 note 27. 40 See already CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 66: “genuine and effective opportunity to express his or her views.” 41 OJEC 2001 L 174 p. 1. 42 See Recital (39) para. 2 sent. 2 (for the hearing of the child); also – for the Brussels IIbis Regulation – Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 5; Winkler von Mohrenfels, IPRax 2002, 372 (375). 43 OJEU 2007 L 324 p. 79. 44 See also Recital (36). 45 Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 41/42 note 7; Paraschas in Geimer/Schütze, Art. 41 Brussels IIbis note 5.

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Art. 47 Brussels IIter Issuance of the certificate 3. Opportunity of the child to be heard (para. 3 (b)) 29

The Recast has strengthened the rights of the child that is involved – often as a kind of object – in disputes on parental responsibility.46 Also, the issue of the certificate must take account of this aim of the Recast. The certificate shall only be issued if “the child was given an opportunity to express his or her views in accordance with Art. 21.”47 Art. 21 (1) prescribes that “the courts of the Member States shall … provide the child who is capable of forming his or her own views with a genuine and effective opportunity to express his or her views, either directly, or through a representative or an appropriate body.” This formulation shall reduce the discrepancies and space of discretion in the interpretation of the former expression in Art. 41 (2) (c) and Art. 42 (2) (a) Brussels IIbis Regulation which provided for “an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity.”48 Therefore, the standard for giving children the chance to express their views should not be set by the respective national law but by an autonomously developed standard. To grant children the opportunity to present their view – as the case may be, also accompanied by a representative or a person of an appropriate body – should thus be the rule and the refusal of such an opportunity the rare exception.49 Even young children at the age of three50 who are not yet able to clearly express their views in rational words may have the capacity to show the intensity of their relation to a person – or the lack thereof – by gestures, mimic etc. and to express their feelings.51 This should initiate courts to be very reluctant in denying such young children an opportunity to express their views.

30

The procedural way in which the opportunity to be heard is offered to children is governed by the law of the Member State of origin.52 The same has to apply to the modalities of the hearing of the child.53

31

As is also the case with respect to the opportunity of all parties concerned to be heard54 it is only necessary that the child had been given the chance to express his or her views. That the child used the opportunity and was in fact heard is no requirement but the child has in any case the right to be heard. Since the child is the central subject of access and return decisions the court or authority should, however, in fact generally hear the child except where it is likely that this would impair the child’s physical or psychological health55 or where other unsurmountable impediments (war, natural catastrophe etc.) make a hearing impossible. As the child will regularly not be in the Member State whose court or authority renders the return decision, this institution must use all possible means such as video conference, judicial cooperation etc. for the hearing.56

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The hearing of the child is no purpose in itself. Where the child was heard the court or authority must, as Art. 21 (2) prescribes, give “due weight to the views of the child in accordance with his or her age and maturity.” In its decision, the court or authority must therefore consider the child’s view and weigh it against the wishes of the other persons involved. The certificate does not express which weight the child’s views were given. The court or authority in the enforcement Member State must

46 This was one of the major aims of the reform; see Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final), p. 4 and 12. 47 This is also a ground in principle not to recognise and enforce a decision on parental responsibility in general; see Art. 39 (2) and Art. 41. 48 See Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final), p. 4 pointing to the fact that the Member States had different standards with respect to when a child should be heard. 49 Similarly Antomo in Pfeiffer/Lobach/Rapp, 44 et seq. 50 Lowe/Everall/Nichols, note 34.11 suggest a minimum age of two. 51 Antomo in Pfeiffer/Lobach/Rapp, 45 regards it as a shortcoming that the Recast did not introduce strict age periods for mandatory and for regular hearing of children; see also the proposal by Sonnentag in Pfeiffer/Wittmann/Escher, 34 et seq. (mandatory hearing from 12 years on; regular hearing from 3 years on). 52 See Recital (39) para. 1 sent. 3. 53 Also, Recital (39) para. 1 sent. 3. 54 See supra Art. 47 note 28 (Magnus). 55 See also Recital (57). 56 See Recital (53).

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trust that the person who rendered the decision acted correctly and took the child’s view thoroughly into account. 4. Certificate for default decisions (para. 3 (c)) Where a decision covered by Art. 42 (1)57 shall be certified which has been rendered in default of appearance, the special provisions of Art. 47 (3) (c) apply. Therefore, it is clear that the ‘privileged’ procedure is applicable to default decisions, too.58 Art. 47 (3) (c) has a parallel in Art. 39 (1) (b) as one of the grounds on which the recognition and enforcement59 of a decision on the general issues of parental responsibility can be refused.

33

In order to avoid that a defaulting party is taken by surprise, Art. 47 (3) (c) provides for a safeguard 34 against default decisions. The provision prescribes an alternative solution: either the person defaulting must have been served with the document instituting the proceedings (or an equivalent document) or that person must have accepted the decision unequivocally. The certificate must certify that one of the two conditions is satisfied. The special default regulation applies in addition, not instead of the requirements in para. 3 (a) and (b). The current Art. 47 (3) (c) is a shorter version of Art. 41 (2) (a) Brussels IIbis Regulation. The essence of the former provision has been retained. The defaulting person is the respondent/defendant in the access or return proceedings. Para. 3 (c) does 35 not apply to cases where the applicant/claimant is in default of appearance. This follows indirectly from Art. 47 (3) (c) (i) because the person who must be served with the relevant document(s) is the respondent/defendant. Being the sender, the applicant/claimant knows the documents that set the proceedings in motion and does not need their service. On the other hand, Art. 47 (3) (c) (ii) could be read as applying also to the case that the applicant/claimant is in default during the proceedings. However, the predecessor provision in Art. 41 (2) (a) Brussels IIbis Regulation made it quite clear that only the respondent/defendant was meant (“to enable that person to arrange for his or her defence”). The materials evidence no intention to change this position.60 According to para. 3 (c) (i) the service concerns the document that institutes the access or return proceedings or an equivalent document that informs the respondent/defendant of the institution of the proceedings. The service must further provide the defaulting party person with sufficient time and information to prepare a defence.

36

Even if there was no service at all or if the service was incorrect because the time set for preparing a 37 defence was too short or the delivered information was insufficient this lack is overcome by the defaulting party’s unequivocal acceptance of the decision. The acceptance must be without any reservation.

57 Under the Brussels IIbis Regulation only the Article on ‘fast track’ access decisions contained a comparable provision (Art. 41 (2) (a) Brussels IIbis Regulation) whereas the Article on ‘fast track’ return decisions lacked a comparable provision. It was therefore disputed whether or not the service- or consent-requirement in case of default return decisions had to be observed: for this requirement – by analogy to Art. 41 Brussels IIbis Regulation – Magnus in Magnus/Mankowski, Brussels IIbis Regulation Art. 42 note 21; against – service unnecessary because of the possibility to be heard in the prior proceeding – Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation 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. Now, the current Art. 47 (3) (c) Brussels IIter Regulation decides the dispute in favour of the first of the two rival opinions. 58 This was already the solution under Art. 41 (2) (a) Brussels IIbis Regulation whilst the Commission’s Proposal of 2002 (COM [2002] 222; Art. 44) excluded default decisions from the ‘fast track procedure’. 59 Art. 41 refers for the enforcement to Art. 39. 60 See Explanatory Memorandum to the Commission’s Proposal for a Recast of the Brussels IIbis Regulation (COM (2016) 411 final) p. 3 et seq. The shortcomings of the Brussels IIbis Regulation listed there do not mention that this point should be changed.

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Art. 47 Brussels IIter Issuance of the certificate

VI. Certificate for return decisions (para. 4) 38

The certificate for a return decision in the sense of Art. 42 (1) (b) which overturns a prior decision in a Member State which refused the return must contain additional information.61 The issuer of the Annex VI-certificate (which is the appropriate standard form for these cases) must certify that, “in giving its decision, the court (sc. or other authority) has taken into account the reasons for and the facts underlying the prior decision” which refused the return because of the ground stated either in Art. 13 (1) (b) or Art. 13 (2) Hague Convention on child abduction of 1980.62 The first of these grounds is that the institution based its refusal on the fact that “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.” The second is that the return was refused because “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.” However, the issuer of the certificate must merely tick the box at point 15.1 of Annex VI which solely provides for “yes” (otherwise the Annex III-form must be used).63 Again, the court or authority in the enforcement state must trust that the issuer of the certificate has indeed carefully examined whether the court or authority of origin took the reasons and facts of the refusal decision in its contrary decision into account and gave them their appropriate weight. Art. 47 (4) strongly supports that the person or body of persons (chamber, senate etc.) that rendered the return decision should also issue the respective certificate because only they know precisely, which weight they gave the reasons and facts of the preceding refusal decision. Indirectly, para. 4 is also a means to urge the court or authority of origin to carefully consider whether, and to thoroughly state the reasons why, it is right to deviate from the preceding refusal decision.

39

Para. 4 applies “(w)ithout prejudice to paragraph 3 of this Article.” This means that the certificate for ‘privileged’ return decisions shall also not be issued if in addition to para. 4 the requirements of para. 3 are not satisfied.64

VII. Effects of the certificate (para. 5) 40

Para. 5 is the former Art. 44 Brussels IIbis Regulation with the only modification that the former last word “judgment” has been replaced with “decision”. Like in all other cases where the Regulation requires that a certificate is necessary for the recognition and enforcement of a decision the certification as such does not constitute an enforceable title.65 Its function is to replace a declaration of enforceability of the decision in question and to avoid proceedings to that end in the enforcement Member State – in the interest of a fast enforcement of the underlying decision. The reason behind is the avoidance of an interruption of the child’s relationships. The certificate ensures that the underlying decision 61 See – though under the corresponding provision of the Brussels IIbis Regulation (Art. 42 (2) – the CJEU in Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 paras. 67. 62 Art. 42 (2) (c) Brussels IIbis Regulation contained a slightly different version which referred to Art. 13 Hague Convention in general and thus included also Art. 13 (1) (a). Under this latter provision, the return may also be refused it “the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.” If the refusal decision is based on this ground, the certificate for a contrary return decision shall evidently not be issued (and the return decision shall not be enforced) because the ground mentioned in Art. 13 (1) (a) Hague Convention appears strong enough to maintain the prior decision that refused the return: the person, institution or other body actually responsible for the child did either not exercise its custody rights or had accepted the removal or retention of the child. To request the prompt return of the child although the applicant had not cared for the child or had accepted the child’s residence in another Member State would offend a general principle of good faith or the commandment not to act in contradiction to the own behaviour (venire contra factum proprium). 63 Annex III provides for the certificate for decisions on parental responsibility in general. 64 The CJEU has interpreted the formulation “Without prejudice to …” in Art. 21 (3) subpara. 1 Brussels IIbis Regulation that it reserves the application of the norms to which it refers; see Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 para. 65. The formulation in Art. 47 (4) Brussels IIter Regulation has to be understood in the same sense. 65 Siehr in MünchKomm BGB (4th ed. 2013), Art. 21 EGBGB Anh. I note 247 and 258.

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is to be recognised and can be enforced in all other Member States without any further exequatur proceedings.66 The certificate takes effect only in combination with the respective decision the enforceability of which it certifies (see Art. 46 (1)). According to Art. 47 (5) its effect to attest the enforceability is further limited to the extent the decision itself is enforceable. The certificate does not extend the scope of enforceability of the decision. The para. allows also inferring that in case of a contradiction between the decision and the certificate the content of the decision prevails.

41

The certificate bears full proof for the attested facts unless proceedings for rectification or withdrawal in accordance with Art. 48 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 heard67 then the rectification or withdrawal of the certificate must be initiated. However, even without such rectification or withdrawal, the competent enforcement authority, for instance the bailiff, is not bound to enforce a decision where the certificate is incomplete (see also next note).

42

VIII. Remedies against the issued certificate (para. 6) An issued certificate can be attacked, however, only in the way Art. 48 allows. With one exception 43 (see next note) no other remedies are available.68 Thus, a rectification and a withdrawal of the certificate is admissible under the conditions stated in Art. 48 (1) and (2). Neither in the Member State of origin nor in the Member State of enforcement can the issuance of the certificate as such be appealed against.69 Where a certificate has been granted it can also not be challenged in the enforcement Member State by an application not to recognise the underlying decision.70 Such an application is inadmissible.71 Otherwise, the intended acceleration effect of the ‘privileged’ procedure would be undermined. It is only the decision itself against which an appeal can be brought or an application to limit its enforceability. But that can merely be raised in the Member State of origin and in accordance with the law of that state.72 The CJEU further allowed in its case-law that in the Member State of origin also doubts as to the authenticity of the certificate can be raised – with respect to the procedure in accordance with the law of that state.73 Also the enforcement institution may inform the court or authority of origin of reasons or doubts whether the certificate was wrongly granted.74

66 Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 para. 68: “As regards the effects of the certification, once the certificate has been issued, the judgment requiring the return of a child referred to in Article [now: 42 (1) (b)] is to be recognized and enforceable in another Member State …” 67 The Practice Guide, p. 33 recommends to state the reasons in the certificate where the child has not been heard. 68 Art. 43 (2) Brussels IIbis Regulation contained a similar regulation though in somewhat different wording. 69 CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 50; also still to the Brussels IIbis Regulation: Stapf in Althammer, Art. 43 Brussels IIbis note 6. 70 See Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 paras. 108 et seq. 71 See already the CJEU decision in Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 para. 109: “ … an application for non-recognition of a judicial decision is not permitted if a certificate has been issued pursuant to Article 42 (now: Art. 47) of the Regulation.”; also CJEU (Case C-92/12 PPU), ECLI:EU:C:2012:255 (Health Service Executive v. S.C., A.C.) paras. 117; CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 50. 72 See – under the Brussels IIbis Regulation – CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) paras. 50 et seq.; further Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 notes 5 and 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. 73 See Inga Rinau (C-195/08 PPU), ECLI:EU:C:2008:406 paras. 85, 88 and 89; CJEU (C-211/10), ECLI:EU:C: 2010:400 (Doris Povse v. Mauro Alpago) para. 73; CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 50. 74 Art. 81 provides for direct cooperation between the competent courts and authorities of the Member States.

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Art. 48 Brussels IIter Rectification and withdrawal of the certificate 45

Section 2 of Chapter IV deals with two specific aspects of parental responsibility – the rights of access Para. 5 does not exclude judicial remedies if the issue of the Annex V- or Annex VI-certificate is refused.75 An appeal or respective remedy would however lie only in the Member State of origin whose courts or authorities would be competent to issue the certificate, and the law of that state determines the available remedies.76

46

Where the enforceability of a decision is in one or the other way modified after the appropriate certificate has been issued – and has certified the enforceability –, Art. 49 (1) provides for the possibility of the issuance of a new certificate which indicates the change. The standard form of Annex VII must be used for this certificate which replaces the former certificate (see further the comment to Art. 49).

47

Besides the possibility to rectify or withdraw the certificate, also Art. 50 has to be noted. In contrast to the Brussels IIbis Regulation the irreconcilability of the decision with certain later decisions is a ground to refuse the enforcement of the ‘privileged’ decision (see further the comment to Art. 50). A further such ground is enshrined in Art. 56 (6), namely that the enforcement entails the lasting and grave risk of physical or psychological harm to the child.

48

If the access or return decision has been set aside on appeal (only possible in the Member State of origin) then the respective certificate automatically loses its effect.77 If the underlying decision no longer exists also the certificate becomes invalid.

Article 48 Rectification and withdrawal of the certificate 1. The court of the Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application, and may of its own motion, rectify the certificate where, due to a material error or omission, there is a discrepancy between the decision and the certificate. 2. The court referred to in paragraph 1 of this Article shall, upon application or of its own motion, withdraw the certificate where it was wrongly granted, having regard to the requirements laid down in Article 47. Article 49 shall apply accordingly. 3. The procedure, including any appeal, with regard to the rectification or withdrawal of the certificate shall be governed by the law of the Member State of origin. I. Contents and aim . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . . III. 1. 2. 3.

Rectification (para. 1) . . . Conditions for rectification Rectification procedure . . Effect of rectification . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

1 2

. 3 . 3 . 5 . 12

IV. 1. 2. 3.

Withdrawal of the certificate (para. 2) . . . Conditions for withdrawal of the certificate Withdrawal procedure . . . . . . . . . . . . . Effects of the withdrawal . . . . . . . . . . . .

. . . .

13 13 18 26

V. Applicable law (para. 3) . . . . . . . . . . . . . 27

I. Contents and aim 1

The Article provides for the central remedies if the certificate is ‘wrong’ either because it suffers from a material error or omission or because it does not comply with the requirements of Art. 47. In the first of these two situations, the certificate can be rectified, in the second withdrawn with the consequence that the underlying decision becomes unenforceable in the ‘privileged’ procedure. Besides the 75 See – to the former Regulation – Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 note 9; In this sense: Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 9; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 4; Stapf in Althammer, Art. 43 Brussels IIbis note 8. 76 Again to the former Regulation: Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 9; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 4. 77 Stapf in Althammer, Art. 43 Brussels IIbis note 7.

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further possibility to refuse the enforcement because of irreconcilability (Art. 50) no other remedies lie against a ‘wrong’ certificate.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. Insofar, the Regulation abrogates any national law which would allow such an appeal. However, the limited number of remedies does not exclude to challenge the authenticity of the certificate where justified doubts exist,2 for instance, that the certificate is a forgery and thus a nullity.3 Nor does Art. 48 or Art. 47 (6) hinder proceedings – in the state of origin – for the issuance of the certificate.4

II. Legislative history The Brussels IIbis Regulation merely provided that “any rectification of the certificate” should be governed by the law of the Member State of origin (Art. 43 (1) Brussels IIbis Regulation). The possibility to withdraw the certificate was only introduced by Art. 48 (2) Brussels IIter Regulation.5 The reason was critique that even decisions had to be recognised and enforced which had violated the fundamental right of the parties and the child to be heard, or which did not take notice of the reasons for the refusal of the return decision.6

2

III. Rectification (para. 1) 1. Conditions for rectification According to Art. 48 (1), for the remedy of rectification certain conditions must be satisfied. The term rectification must be autonomously determined since otherwise the borderline to the withdrawal (para. 2) as well as to the excluded appeals and remedies could not be precisely drawn.7 Rectification means that certain shortcomings of the certificate can be corrected; the rectification ‘saves’ the certificate which in the rectified form can be further used.

3

The provision expressly states what kind of shortcomings it envisages: namely, “due to a material error or omission, there is a discrepancy between the decision and the certificate.”8 Therefore, rectification is only admissible where the content of the certificate does not comply with the content of the decision and is therefore incorrect. This is, for instance, the case where the certificate – in comparison

4

1 See Art. 47 (6) and the comment there (Art. 47 notes 43 et seq. [Magnus]); for the old Regulation in the same sense 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 (sc. old) 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 (former) Regulation seeks to ensure that the effectiveness of its provisions is not undermined by abuse of the procedure.” 2 See – under the Brussels IIbis Regulation – Inga Rinau (Case C-195/08) (2008) ECR I-5271 para. 88 et seq.; also Stapf in Althammer, Art. 43 Brussels IIbis note 9 (however assuming that doubts “may only arise in cases of particularly serious defects”). 3 See also in respect of the Brussels IIbis Regulation Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation 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). 4 See Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 note 12. 5 The possibility of withdrawal was first proposed by Art. 54 (2) Recast Proposal (COM (2016) 411 final, p. 59). 6 See thereto, e.g., Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 notes 5 and 6. 7 For an autonomous determination evidently also Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 note 2; Gottwald in MünchKommZPO, Art. 43 Brussels IIbis Regulation note 1; Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 5; probably also Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 11. 8 The formulation goes mainly back to Recital (24) of the Brussels IIbis Regulation; see also CJEU (C-211/10) ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 71.

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Art. 48 Brussels IIter Rectification and withdrawal of the certificate to the decision – contains wrong parties or names, misspellings, wrong dates or wrong modalities of access9 or return.10 The same holds true if the certificate omits a relevant point of the decision, for instance, one of several parties or children. In these cases, the discrepancy between the decision and the certificate can more or less easily be put right by correcting the error or inserting the missing point in the certificate. The rectification of the certificate cannot be used – neither directly nor indirectly – to rectify the contents of the decision and also not to quash the certificate as such.11 For the latter possibility see para. 2 and infra Art. 48 note 13 et seq (Magnus). 2. Rectification procedure 5

According to Art. 48 (3) the procedure of rectification is governed by the law of the Member State of origin. This is the law of the country whose court or authority rendered the decision. Generally, the court or authority that was competent to issue the certificate (and regularly the underlying decision) is also competent for the rectification.12 The law of its Member State 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,13 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.

6

Under the Brussels IIbis Regulation, it had been argued that also the entitlement to request rectification is to be determined according to national law.14 However, the Regulation itself defines in Art. 47 (3) 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 wrong name for the child has been certified all parties concerned and the child are affected by this fact. Each of them, the child through a representative, should have the right to claim rectification. Therefore, the Regulation itself determines the persons entitled to rectification.

7

There is no specific time frame for an application for rectification nor for the court or authority acting of its own motion. The rectification can be applied for or done at any time15 except that the enforcement has already been completed.

8

Moreover, Art. 48 (1) requires the national law to offer at least some procedure of rectification.16 If no such procedure exists it must be introduced. In any event must the Member States inform the Commission which court(s) or authorit(y)ies in their country shall be competent for the rectification.17

9

Although the rectification procedure is governed by national law, the judge or other entitled official concerned with the rectification has to take account of the aim of the certificate to enable a ‘privi9 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. 10 In regard of the Brussels IIbis Regulation also Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 note 2; Hausmann, Art. 43 EuEheVO note 243; Stapf in Althammer, Art. 43 Brussels IIbis note 3. 11 Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 6; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 11. 12 See – to the Brussels IIbis Regulation – CJEU (Case C-491/10 PPU), ECLI:EU:C:2010:828 (Joseba Andoni Aguirre Zarraga v. Simone Pelz) para. 50; CJEU (C-211/10), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 73; Andrae/Benicke in NomosKommentar I (2021), Brussels IIbis Regulation Art. 43 note 1; Hausmann, Art. 43 EuEheVO note N-267; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 9; Stapf in Althammer Art. 43 Brussels IIbis note 4. 13 Under the Brussels IIbis Regulation: Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 7; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 10. 14 To the former Regulation: Paraschas in Geimer/Schütze, Art. 43 Brussels IIbis note 7; Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 10. 15 Support can be drawn from Art. 49 (1) where also an application “at any time” is provided for. 16 Also Rauscher in Rauscher, Brussels IIbis Regulation Art. 43 note 10. 17 See Art. 103 (1) (b). This may be – as in Germany – generally the family courts and their appeal courts or also one single central court.

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leged’ procedure. Therefore, any rectification proceedings should be conducted with particular rapidity. Whereas the Brussels IIbis Regulation left to national law whether the rectification needed an applica- 10 tion or could be executed ex officio, Art. 48 (1) of the present Regulation authoritatively allows both kinds of action. This solution overturns any deviating national rule. Any entitled person can thus apply for rectification to the court or authority that issued the certificate. If a ground for rectification is given, on application the court or authority must rectify the certificate. The institution has no discretion in such a case. This is different if it acts of its own motion; then, it ‘may’ rectify the certificate. But even then, it appears preferable generally to rectify the document in order to avoid that an error or omission causes doubts and difficulties later on. Only where this appears to be impossible the institution may refrain from the rectification ex officio. Where an entitled person applies for rectification this person bears no strict burden of proof. This person must indicate the error or omission which shall be rectified. However, it is the court’s or authority’s obligation to examine and determine whether there was an error or omission and a discrepancy between the decision and the certificate. The reason is that the institution may also of its own motion initiate a rectification which it then conducts ex officio. A respective application should cause the same ex officio examination.

11

3. Effect of rectification After rectification only the rectified certificate has the effect to enable the enforcement of the underlying decision. National law decides whether and from when on the incorrect certificate becomes invalid, has to be returned or deleted.

12

IV. Withdrawal of the certificate (para. 2) 1. Conditions for withdrawal of the certificate Art. 48 (2) provides for a significant modification in comparison to the Brussels IIbis Regulation.18 13 Whilst the Brussels IIbis Regulation – in the interest of the expeditious enforcement of the ‘privileged’ decisions at almost any price – excluded any further remedy against the certificate, the present Regulation allows for a control of fundamental points of substance indirectly also concerning the underlying decision: namely whether this decision observed the requirements which Art. 47 lays down for the issuance of the certificate. If these requirements were disregarded, the certificate can be withdrawn. The withdrawal creates the state of affairs which should have existed: because of the disregard of fundamental principles of procedural fairness the certificate should not have been issued at all and the enforceability of the decision has to be denied. The requirements of Art. 47 are that, in the proceedings for the underlying access or return decision all parties concerned and the child must have had an opportunity of being heard; in default cases the respondent must have been timely informed of the proceedings or must have accepted the decision; in the covered return cases the decision must have taken account of the reasons and facts of the contrary decision to refuse the return.19

14

Art. 47 (2) provides for a further requirement, namely that the certificate be principally issued in the same language as the underlying decision. It is advocated here that a neglect of this requirement should not entitle to withdraw the certificate. This submission is supported by the fact that the applicant can request the issuance of the certificate in another language (see Art. 47 (2) sent. 2). Further, the certificate form is to such an extent standardised and simplified that regularly only a box must be ticked which in all language versions has the same meaning. Therefore, the language plays only a limited role for the few free text fields for the translation of which the applicant must care him- or her-

15

18 See thereto Thomas, Clunet 147 (2020) 897 (918 et seq.). 19 See Art. 47 note 19 et seq. (Magnus).

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Art. 48 Brussels IIter Rectification and withdrawal of the certificate self anyway.20 Thus, the language requirement should not qualify as a requirement in the sense of Art. 48 (2) sent. 1. 16

Art. 48 (2) allows for no other reasons for withdrawal. The provision thus enables a certain substantive control of the certificate and indirectly of the underlying decision – though only as a self-correction through the issuing institution. This self-control is even the case where an entitled person applies for withdrawal. From Art. 48 (2) and Art. 47 (6) it should be inferred that no further grounds can justify the withdrawal of the certificate. Even a further ordre public control should be excluded since the grounds for withdrawal constitute to a certain extent a general procedural ordre public.

17

As condition for its withdrawal the certificate must have been “wrongly granted, having regard to the requirements laid down in Art. 47.” A wrong grant occurs where the issuer certifies willfully or inadvertently that the underlying decision did satisfy the requirements of Art. 47 (3) and (4) although that was not the case; for instance, the certificate confirms that the child or one of the parties was given the chance to articulate the own position although this was contrary to what had happened. How far it is realistic that the court or authority of origin will correct itself by withdrawing the issued certificate of its own motion remains to be seen. Insofar it is welcome that also the entitled persons can apply for the withdrawal which, if justified, the court or authority then must order. 2. Withdrawal procedure

18

The procedural aspects of the certificate’s withdrawal are mainly the same as those of the rectification procedure (see supra Art. 48 note 5 et seq. [Magnus]). Most of what has been said there applies here as well. According to Art. 48 (3) also the procedure of withdrawal is governed by the law of the Member State of origin. This includes the question whether the holder of the wrong certificate must return the document to the issuing institution. Under a practical perspective, the wrong certificate should be in any event returned in order to safely exclude its misuse.

19

The court or authority competent for the withdrawal is the court or authority communicated to the Commission in accordance with Art. 103 (1) (b). This is regularly the court or authority in the Member State of origin which issued the first certificate and rendered the underlying decision. Where the national law of the Member State of origin does not offer a withdrawal procedure, one has to be introduced. The entitled persons21 can apply for the withdrawal or the court or authority can withdraw a wrongly granted certificate of its own motion. There is no specific time frame for the application or the ex officio withdrawal.

20

A difference to the rectification procedure lies in the fact that para. 2 grants no discretion to withdraw if the court or authority acts of its own motion. The institution then must withdraw the certificate if it was wrongly granted. The underlying reason is that wrongly granted certificates should no longer circulate.

21

A further difference to the rectification procedure is that Art. 49 applies to the withdrawal procedure “accordingly” (para. 2 sent. 2). Art. 49 grants the entitled persons to apply for a new certificate that evidences that the enforceability of the underlying decision has ceased or has been suspended or limited. The form of this certificate is set out in Annex VII (see further the comment to Art. 49). This serves the transparency whether or not and to which extent an access or return decision is still enforceable. That Art. 48 (2) sent. 2 provides that Art. 49 “shall apply accordingly” appears to mean that an Annex VII-certificate can also be applied for if a wrongly issued certificate has been withdrawn.22 The Annex VII-certificate would then have to certify that the underlying decision is no longer enforceable because the certificate that certified this had been withdrawn.

22

It may be doubted whether a ‘partial’ withdrawal is admissible. On the one hand, it is hardly imaginable that only parts of a certificate can be withdrawn while other parts are maintained. The certificate is a document as a whole and can as such be withdrawn only as a whole. It is also difficult to see how the relevant requirements (supra Art. 48 note 12 et seq. [Magnus]) can affect only parts of the certifi20 See Art. 47 (2) sent. 3. 21 In the sense as used in Art. 47; see Art. 47 note 14 et seq. (Magnus). 22 The heading and text of Annex VII does however not mention Art. 48 (2) sent. 2.

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cate. If, for instance, the hearing requirement had been neglected the certificate as such should not have been issued. On the other hand, Art. 49, to which Art. 48 (2) sent. 2 refers, provides that an Annex VII-certificate can certify to which extent the underlying decision is enforceable indicating any eventual limitation of enforceability. This regulation which shall be applied “accordingly” may speak for the possibility of a ‘partial’ withdrawal. However, since Art. 49 is applicable only “accordingly” not too much should be inferred from “extent”-formula in Art. 49 (1). The requirements of Art. 47 concern the observance of general principles which do not affect mere parts of the underlying decision. The decision suffers as such and not only in parts from a fundamental defect if one of the requirements is disregarded. The possibility of a partial withdrawal should therefore be denied. The withdrawal is possible upon application of one or more of the entitled persons or of the own motion of the court or authority. In both situations the court or authority is obliged to withdraw the certificate if it is established that it was wrongly issued.

23

Where the court or authority of origin issues a certificate under Art. 49 that certifies a lack or limita- 24 tion of enforceability of the underlying decision it appears recommendable that the issuing institution at the same time withdraws the former certificate that still certified the enforceability. Any way the more recent certificate invalidates the older one. Like for the rectification23 the person who applies for a withdrawal of the certificate has no strict burden of proof. He or she must indicate the reason for withdrawal; but it is then the task of the court or authority to examine and determine ex officio whether the reason is established and whether the certificate was wrongly issued. The applicant should have no burden to prove the institution’s misconduct which the institution itself should and could know better and is obliged to repair.

25

3. Effects of the withdrawal The withdrawal invalidates the wrongly issued certificate. The lack of a correct certificate has the effect that the underlying decision can no longer be enforced in the ‘privileged’ procedure. An Annex VII-certificate can be applied for and issued (see Art. 49).

26

V. Applicable law (para. 3) As already mentioned, according to Art. 48 (3) the procedure for the rectification and the withdrawal of the certificate is governed by the law of the Member State of origin. The law of the enforcement Member State or of any third state is inapplicable. The law of procedure comprises all procedural formalities regarding the rectification and withdrawal. This includes in particular forms and periods for applications or appeals, modalities of rectification and withdrawal.

Article 49 Certificate on lack or limitation of enforceability 1. Where and to the extent that a decision certified in accordance with Article 47 has ceased to be enforceable or its enforceability has been suspended or limited, a certificate indicating the lack or limitation of enforceability shall, upon application at any time to the court of the Member State of origin as communicated to the Commission pursuant to Article 103, be issued, using the standard form set out in Annex VII. 2. The certificate shall be completed in the language of the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by a party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields.

23 See supra Art. 48 note 10 (Magnus).

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27

Art. 49 Brussels IIter Certificate on lack or limitation of enforceability I. Contents and aim . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

1 3

III. Issuance of the Annex VII-certificate (para. 1) . . . . . . . . . . . . . . . . . . . . . .

4

1. Conditions for the issue of the Annex VIIcertificate . . . . . . . . . . . . . . . . . . . 2. Procedural aspects . . . . . . . . . . . . . . 3. Effect of the Annex VII-certificate . . . . . IV. Language questions (para. 2) . . . . . . .

. . . .

. 4 . 8 . 13 . 16

I. Contents and aim 1

The Article was for the first time inserted by the Recast. It creates the possibility to apply for a certificate that indicates that the enforceability of the underlying decision either has ceased or has been suspended or limited. This possibility serves the clarity and transparency where a certificate had been issued under Art. 47 but the enforceability of the decision had been in any way restricted or even excluded thereafter. Annex VII provides for a separate standard form of certificate for this situation. The Annex VII-certificate can also be applied for if the Annex V- or Annex VI-certificate has been withdrawn (see Art. 48 (2) sent.).

2

Art. 49 (2) deals with the language of the Annex VII-certificate and provides that the issuing court or authority has no obligation to translate or transliterate eventual texts of free text fields.

II. Legislative history 3

Art. 49 had no full predecessor in the Brussels IIbis Regulation. Only its para. 2 sent. 1 was in essence already contained in Art. 41 (2) subpara. 2 and Art. 42 (2) subpara. 4 Brussels IIbis Regulation. In the current Regulation, Art. 49 (2) is identical with Art. 47 (2) and also with Art. 36 (2).

III. Issuance of the Annex VII-certificate (para. 1) 1. Conditions for the issue of the Annex VII-certificate 4

Where an Annex V- or Annex VI-certificate has been issued for the enforcement of an access or return decision in the sense of Art. 42 (1) (b), Art. 49 (1) offers the possibility to apply for another certificate if the enforceability of the decision has become in any way excluded or restricted. Annex VII provides for the standard form of this certificate.

5

A first condition for the issuance of the Annex VII-certificate is that the enforceability of the underlying decision had been – validly – certified in accordance with Art. 47. If no such certificate exists there is no need to certify that the enforceability of the decision is limited in any way because without the certificate under Art. 47 the decision cannot be enforced in the ‘privileged’ procedure anyway.1 Only if the original certificate has been withdrawn in accordance with Art. 48 (2) – and does no longer exist – the Annex VII-certificate can nonetheless be requested.

6

The second condition is that the enforceability of the underlying decision has ceased or been suspended or limited. It is the inner logic of the provision that this event must have happened after the Art. 47-certificate was issued and under the condition that originally the decision was enforceable. The aim of the second certificate is to clarify that the first certificate has no longer its specific legal effect to certify and thus enable the unreserved enforcement of the access or return decision. Art. 48 (2) sent. 2 treats the situation alike that the original certificate has been withdrawn because it was wrongly granted.2

7

The reason why the enforceability of the underlying decision had ceased or been suspended or limited has no specific relevance; all reasons with such an effect must be respected. However, it must be

1 See Art. 46 (1) (b). 2 See further Art. 48 note 21 (Magnus).

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a reason stemming from the court or authority of the Member State of origin.3 This court or authority or its appeal instance must have ceased, suspended or limited the enforceability of the decision. For Art. 49 (1) only the fact counts that, due to, for instance, an appeal decision in the Member State of origin, the decision can no longer be unreservedly enforced. The same is true for any kind of limitation of the enforceability, for example, in temporary respect. 2. Procedural aspects As Art. 49 (1) expressly states, the Annex VII-certificate must be applied for. The court or authority of origin cannot issue it ex officio. All persons who are entitled to request the issuance of a certificate under Art. 474 should also be entitled to apply for the Annex VII-certificate.

8

The certificate can be applied for “at any time”. No specific time frame must be observed for the application. Insofar, eventual national time frames are no longer applicable. However, it is self-evident that no application before the issuance of the Art. 47-certificate is possible and also not after the underlying decision has already been enforced.

9

The court or authority competent for the issuance of the Annex VII-certificate is the respective institution in the Member State of origin which has been communicated to the Commission as provided for by Art. 103 (1) (b). Regularly, it is the court or authority that already issued the Art. 47-certificate and also rendered the underlying access or return decision. Where the appeal instance has modified the enforceability of the decision this instance is competent for the issuance of the certificate. Annex VII-certificates of courts or authorities of other Member States or third states have no effect and are invalid.

10

Where the enforceability is suspended or limited, the Annex VII-certificate must indicate the extent of this limitation. The standard form contains few free text fields where details of the suspension or limitation shall be put in.5 Where the Annex VII-certificate is issued under Art. 48 (2) sent. 2 its content must be adapted to that provision. The certificate must then state that the former certificate was withdrawn.

11

Where the court or authority of origin issues a certificate under Art. 49 that certifies a lack or limitation of enforceability of the underlying decision it appears recommendable that the issuing institution at the same time withdraws the former certificate ex officio6 that still certifies the full enforceability. This would avoid any uncertainty about the enforceability and hinder eventual misuse. Anyway, it has to be assumed that the more recent certificate invalidates the older one as far as it contradicts.

12

3. Effect of the Annex VII-certificate If the Annex VII-certificate indicates that the underlying decision is not enforceable at all this entails that the access or return decision can no longer be enforced because a central element – the certificate that is absolutely necessary for the enforcement (Art. 42 (1) and Art. 46 (1) (b)) – is lacking. The same effect has the certificate issued under Art. 48 (2) sent. 2.

13

If the Annex VII-certificate indicates that the enforceability of the underlying decision has been suspended this decision becomes unenforceable as long as the suspension lasts. Where possible, the standard certificate must state the date where the suspension is terminated either by law or by a decision.7

14

If the Annex VII-certificate indicates that the enforceability has been merely limited, in what way 15 ever, the underlying decision remains enforceable to the extent that is not limited.

3 4 5 6 7

See also the Note “Important” in the heading of Annex VII. See thereto Art. 47 note 14 et seq. (Magnus). No. 4.2.1 and 4.3.1 Annex VII. Art. 48 (2) allows the withdrawal ex officio. See No. 5 Annex VII.

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Art. 50 Brussels IIter Irreconcilable decisions

IV. Language questions (para. 2) 16

Art. 49 (2) concerns language questions. It is more or less self-understanding that, like the other certificates,8 the Annex VII-certificate has to be completed and issued in the same language as the access or return decision (para. 2 sent. 1). Where a party so requests, the certificate may also be issued in another official EU language. As to the discretion of the court or authority and its restriction in this respect see Art. 47 note 17.

17

Where the court or authority issues the certificate in another language than that of the decision the institution is not obliged to translate or transliterate the text of the free text fields of the certificate into that other language (para. 2 sent. 3). Art. 36 (2) and Art. 47 (2) contain the same provision.

Subsection 4 Refusal of recognition and enforcement (Art. 50)

Article 50 Irreconcilable decisions The recognition and enforcement of a decision referred to in Article 42 (1) shall be refused if and to the extent that it is irreconcilable with a later decision relating to parental responsibility concerning the same child which was given: (a) in the Member State in which recognition is invoked; or (b) in another Member State or in the non-Member State of the habitual residence of the child provided that the later decision fulfils the conditions necessary for its recognition in the Member State in which the recognition is invoked. I. Contents and aim . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . . III. Relationship between Art. 50 and the general provisions . . . . . . . . . . . . . . . .

2

IV. 1. 2. 3.

Conditions for the refusal . . . . . . . . . . In general . . . . . . . . . . . . . . . . . . . . The basic decision . . . . . . . . . . . . . . . The covered contrary decisions . . . . . . . . a) Decisions given in the enforcement Member State (lit. a) . . . . . . . . . . . . b) Decisions given in another Member State (lit. b 1st alt.) . . . . . . . . . . . . . . . .

. . . .

3 12 12 13 14

. 15

c) Decisions given in the non-Member State of the child’s habitual residence (lit. b 2nd alt.) . . . . . . . . . . . . . . 4. Irreconcilability . . . . . . . . . . . . . . . a) Covered irreconcilable decisions . . . b) Decisions on access rights . . . . . . . c) Return decisions . . . . . . . . . . . .

. . . . .

. . . . .

. . . . .

22 29 30 31 33

V. 1. 2. 3.

. . . .

. . . .

. . . .

34 34 35 36

Effects of Art. 50 . . . . . . . . . . . Mandatory character of Art. 50 . . . Extent of refusal . . . . . . . . . . . . No burden of proof on respondent .

. . . .

. . . .

. . . .

. 18

I. Contents and aim 1

Art. 50 is the only provision of Subsection 4 of Section 2 of Chapter IV of the Brussels IIter Regulation. The Subsection deals with the refusal of recognition and enforcement of an access or return decision in the sense of Art. 42 (1). In Section 4, Art. 50 provides for the sole ground for which such a decision cannot be recognised and – in addition to the indirect grounds in Art. 47 (3) and (4)1 – not be enforced. This ground is the irreconcilability of the access or return decision with a later decision 8 See Art. 36 (2) and Art. 47 (2); in essence also Art. 66 (4). 1 Where the hearing and notice requirements in Art. 47 (3) and the taking into account requirement in Art. 47 (4) were neglected, the certificate that is indispensable for the enforcement of the underlying decision must not be issued (see explicitly Art. 47 (3) and (4)). If it has nonetheless been issued the certificate must be withdrawn (Art. 48 (2)).

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on parental responsibility rendered either in the Member State where the recognition – and enforcement – is invoked or if this State would recognise the later decision of another Member State or of a non-Member State where the child habitually resided. The provision thus gives preference to the more recent decision if there are conflicting decisions concerning the same child. The aim is to determine the conflict between contradicting decisions by acknowledging the most recent decision which most likely takes best account of the child’s actual situation and development and his or her interests.2 Recent events and consequently revised decisions shall not be ignored.3

II. Legislative history Art. 50 had a predecessor in Art. 47 (2) subpara. 2 Brussels IIbis Regulation. This subpara. provided: 2 “In particular, a judgment which has been certified according to Art. 41 (1) or Art. 42 (1) (sc. the provisions on ‘fast track’ access and return decisions) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” This formulation was understood to refer only to decisions of the courts or authorities of the Member State of origin.4 Decisions rendered in the enforcement Member State were not regarded as irreconcilable even if they contradicted the decision of the Member State of origin.5 Under the Brussels IIbis Regulation, thus the courts or authorities of the Member State of origin had the final say. Under the Brussels IIter Regulation, this final say has been moved to the courts or authorities of the Member State of enforcement.6 The main reason for this change is that regularly the child is present in the state of enforcement and it can be assumed that the institutions there are closer to the child’s real situation and can better assess the best interests of the child than the institutions in the Member State of origin.

III. Relationship between Art. 50 and the general provisions It is not entirely clear whether or not Art. 50 indeed states the only ground for a refusal of the enfor- 3 cement of an access or return decision covered by Art. 42 (1) – besides the indirect refusal grounds in Art. 47 (3) and (4) in connection with Art. 48 (2).7 In principle, Art. 50 is the special provision concerning the ‘privileged’ access and return decisions. The provision should, therefore, actually prevail over the common provisions on enforcement enshrined in Arts. 51 et seq. However, doubts are raised because Art. 56 which is the general provision on suspension and refusal refers in its para. 2 (c) explicitly to Art. 50 and allows in its para. 6 the refusal of enforcement where the enforcement would expose the child to a lasting grave risk of physical or psychological harm. It must be determined whether Art. 56 (6) is applicable in addition to Art. 50 and constitutes a further ground to refuse the enforcement of a ‘privileged’ decision. There are several arguments that the special provision (Art. 50) enjoys priority over the general provision (Art. 56) and that the enforcement of ‘privileged’ decisions can only be refused on the basis of 2 See Recital (56) sent. 4: “In matters of parental responsibility, a later decision always supersedes an earlier decision with effect for the future to the extent that they are irreconcilable.” 3 In this sense also – already under the Brussels IIbis Regulation – McEleavy in Magnus/Mankowski, Brussels IIbis Regulation Art. 47 note 17. 4 CJEU (C-211/10), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 76: “ … the question whether a certified judgment is irreconcilable … with a subsequent judgment must be addressed only in relation to any judgments subsequently handed down by the courts with jurisdiction in the Member State of origin.”; also Andrae in NomosKommentar I (2021), Brussels IIbis Regulation Art. 47 note 2; Gottwald in MünchKommFamFG, Art. 47 Brussels IIbis Regulation note 5; Gruber/Möller, IPRax 2020, 393 (398). 5 CJEU (C-211/10), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 78: “To hold that a judgment delivered subsequently by a court in the Member State of enforcement can preclude enforcement of an earlier judgment which has been certified in the Member State of origin and which orders the return of the child would amount to circumventing the system set up by Section 4 of Chapter III of the regulation (this is now Section 2 of Chapter IV).” 6 In this sense also Gruber/Möller, IPRax 2020, 393 (398). 7 The withdrawal of the Art. 47 certificate in accordance with Art. 48 (2) has the effect that the underlying access or return decision becomes unenforceable.

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4

Art. 50 Brussels IIter Irreconcilable decisions Art. 50:(1) The text of Art. 56 (2) (c) (“an application for refusal of enforcement based on Art. 41, 50 or 57 has been submitted”) is ambivalent. It can be understood that Art. 56 applies to ‘privileged’ decisions as well. On the contrary, it can also mean that Art. 56 is merely applicable where an application is based on Art. 50 but the conditions for the applicability of that provision are not met. A clear tendency for one or the other interpretation does the text not reveal. 5

(2) The intention of the norm-givers was to restrict the possibilities to refuse the enforcement of ‘privileged’ decisions to the single reason of irreconcilability. This is evident from Recital (52) sent. 1 and 2 which insofar states: “… any decision … which entails the return of the child to that Member State should be enforceable in any other Member State in accordance with Section 2 of Chapter IV of this Regulation without any special procedure being required and without any possibility of opposing its recognition. This should apply unless and to the extent that irreconcilability with a later decision relating to parental responsibility concerning the same child is found to exist … .” Although only addressing the enforcement of return decisions, the passage can and should be extended to access decisions and the aspect of recognition as well which are regulated in the Section on ‘privileged’ decisions. The clear intention was the limitation of grounds to refuse the recognition and enforcement of these decisions.

6

(3) The respective contexts of Art. 50 and Art. 56 and the structure of Chapter IV of the Regulation strongly militate for the interpretation that Art. 50 is the special provision for the ‘privileged’ decisions and Art. 56 the general provision for all decisions outside the ‘privileged’ procedure. Recital (58) sent. 2 supports this understanding: “… this Regulation should abolish it sc. the exequatur for the cross-border enforcement of all decisions in matters of parental responsibility while still retaining an even more favourable treatment of certain decisions granting rights of access and certain decisions entailing the return of the child.” The ‘privileged’ decisions shall receive an “even more favourable treatment” as compared to the other decisions on parental responsibility. This points to a special regime for the ‘privileged’ decisions in contrast to the common regime for those other decisions. It would make little sense to establish a special ground for non-enforcement in Art. 50 if all grounds listed in Art. 56 would apply anyway.

7

(4) Further, the general aim of the Section on ‘privileged’ decisions speaks for a preference of the provisions of that Section – as far as they reach – over the common provisions. The aim is “to facilitate recognition and enforcement and to effectively protect the best interests of the child.”8 Section 2 of Chapter IV of the Regulation serves this aim in particular. The grounds for a refusal of enforcement have therefore to “be kept to the minimum.”9

8

(5) It is hardly a valid counter-argument that certain of the common provisions are also applicable to Section 2 of Chapter IV. There are indeed such provisions, for instance Art. 51 (1) sent. 1 that in principle the procedure of enforcement is governed by the law of the Member State of enforcement, or Art. 54 that the courts or authorities of the enforcement Member State may modify the access arrangements in the original decision, or Art. 63 (1) (c) which permits the suspension of the enforcement proceedings if the respondent has applied for the withdrawal of the certificate issued pursuant to Art. 47. It follows that the common provisions on enforcement remain applicable in ‘privileged’ cases as far as they are not inconsistent with the specific provisions for the ‘privileged’ decisions, in particular where they regulate aspects not dealt with in Section 2 of Chapter IV. Art. 56 (6) is however inconsistent with Art. 50 because it addresses a new and other ground for the refusal of the enforcement than in Art. 50 indicated.

9

It is, however, a strong argument in favour of the additional application of Art. 56 (6) to ‘privileged’ decisions that pursuant to this provision the enforcement may be refused if it would expose the child to a “lasting” grave risk of physical or psychological harm. It must be taken into account that Section 2 of Chapter IV – as all the Regulation’s provisions relating to children – is primarily devoted to serve the bests interests of the child.10 A lasting and grave risk of physical or psychological harm is 8 Recital (55) sent. 2; see also Recital (58) sent. 1: “aim of making cross-border litigation concerning children less time consuming and costly.” 9 Recital (55) sent. 2 (although in respect of the grounds for non-recognition). 10 See, e.g., Recital (84) sent. 4 which can be generalised: “The best interests of the child should remain the paramount consideration.”; but also Recitals 19, 39 etc.

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certainly not in the best interests of the child. Such a risk would impair the child’s fundamental personality rights. This is a convincing ground that urges and justifies to refuse enforcement. Art. 56 (6) should therefore also apply to ‘privileged’ decisions, in particular to ‘privileged’ return decisions.11 The return of the child should never be enforced – even in the ‘privileged’ cases – at the price of doing significant harm to the child, for instance, if the child seriously threats with suicide when being returned. Although Recital (69) admonishes the court or authority “with the assistance of other relevant professionals, such as social workers or child psychologists, to try to ensure implementation of the decision. … try to overcome any impediments …”, the pressure of the court or authority should never exceed, nor even come close to, the threatening harm. It is a further – moderate – argument for the additional applicability of Art. 56 (6) that in cases of 10 ‘privileged’ access and return decisions the applicant can choose between the ‘normal’ and the ‘privileged’ procedure.12 To distinguish between the two kinds of procedure in respect of the grounds for refusal of enforcement is less convincing than to treat both kinds insofar alike because the applicant is not bound by the chosen procedure but can still change to the other kind of procedure later on.13 In sum, the better arguments support that Art. 50 is not the only ground on which the enforcement of a ‘privileged’ access or return decision can be refused. In exceptional cases, Art. 56 (6) is also applicable.

11

IV. Conditions for the refusal 1. In general Art. 50 which has to be interpreted autonomously addresses the court or authority in the Member 12 State where recognition or enforcement is sought and defines when this institution may refuse to recognise or enforce a ‘privileged’ access or return decision: the basic decision must neither be recognised nor enforced if a contrary decision has been subsequently delivered. However, such a contrary decision is only relevant if it was rendered under certain conditions in one of the following countries: (1) in the Member State in which the basic decision has been invoked for recognition or enforcement; (2) in another Member State whose decisions the Member State where recognition is sought would recognise; (3) in a non-Member State where the child had his or her habitual residence and whose decisions the Member State where recognition is sought would recognise. The Brussels IIbis Regulation did not yet specify from which country the irreconcilable later decision had to originate. The respective provision could be understood to comprise any contrary decision irrespective whether given in a Member State or elsewhere.14 The CJEU restricted the too broad range of Art. 47 (2) subpara. 2 Brussels IIbis Regulation to irreconcilable decisions of the court or authority of the Member State of origin.15 The Recast changed this position and extended the circle of relevant irreconcilable decisions to those given in the mentioned three countries. Among the relevant irreconcilable decisions, even if there are more than two, the most recent must be recognised (posterity principle).16 It can be assumed that the most recent decision already reacted to new developments concerning the child and

11 In the same sense Antomo in Pfeiffer/Lobach/Rapp, 49; Balthasar-Wach, 356 and 371 et seq.; Lazic´, NIPR 2021, 729 (747); also – for return decisions: Gruber/Möller, IPRax 2020, 393 (398) inferring this conclusion from the systematic position of Art. 56. This argument can hardly be upheld. The systematic position speaks for the exclusive application of Art. 50 to ‘privileged’ decisions. 12 See Art. 42 (2). 13 See Art. 42 note 18 (Magnus). 14 See Art. 47 (2) subpara. 2 Brussels IIbis Regulation; this provision merely mentioned “a subsequent enforceable judgment.” The pure wording allowed to include any third state judgment; critical thereto and with suggestions close to the current Art. 50 already McEleavy in Magnus/Mankowski, Brussels IIbis Regulation Art. 47 note 18. 15 CJEU (C-211/10), ECLI:EU:C:2010:400 (Doris Povse v. Mauro Alpago) para. 78; see also supra note 2. 16 Gottwald in MünchKommZPO, Art. 23 Brussels IIbis Regulation note 10; Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 23 note 24; M. Weller in Althammer, Art. 23 Brussels IIbis note 8.

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Art. 50 Brussels IIter Irreconcilable decisions therefore generally takes better account of the best interests of the child.17 Moreover, the more recent decision could and should have taken notice of the former decision and its reasons. 2. The basic decision 13

The underlying decision must be an enforceable access or return decision in the sense of Art. 42 (1) for which a valid Art. 47-certificate had been issued so that the decision could actually be enforced in the enforcement Member State. 3. The covered contrary decisions

14

Art. 50 covers later irreconcilable decisions which have been rendered by a court or competent authority. Whether this institution decided as first instance or as appeal instance is irrelevant.18 Its decision, as far as incompatible with the basic decision, prevails in both cases if it is itself also enforceable. However, the territorial range from which the contrary decisions may stem is precisely defined and must be observed. a) Decisions given in the enforcement Member State (lit. a)

15

In the first line, relevant decisions are those given in the recognition and/or enforcement Member State, even if they do not take account of the basic decision in the Member State of origin. In the recognition/enforcement Member State the child is regularly present and the court and competent authority is closer to the child’s situation than the same institutions in the Member State of origin.

16

The formulation in Art. 50 (a) ”in the Member State in which recognition is invoked” should not be understood as excluding enforcement proceedings. Any enforcement necessarily includes also the recognition of the underlying decision.

17

It is further not necessary that the central and direct subject of the proceedings is the recognition or enforcement. Even if the recognition or enforcement is a preliminary issue it is “invoked” and Art. 50 (a) applies. b) Decisions given in another Member State (lit. b 1st alt.)

18

The seized court or authority in the enforcement Member State must also give priority to decisions rendered in other Member States over a contrary basic decision. It may be doubtful whether the final part of Art. 50 lit. b (“that the later decision fulfils the conditions necessary for its recognition in the Member State in which the recognition is invoked”) also refers to the first alternative of lit. b, namely “in another Member State.”19 However, lit. b of Art. 50 resembles closely Art. 39 (1) (e) which appears to be more clearly formulated. This latter provision leaves little doubt that the recognition requirement refers to decisions rendered both in another Member State and in a non-Member State.20 17 See, e.g., OLG München, FamRZ 2014, 602 (605); also Dörner in Hk-ZPO, Art. 23 Brussels IIbis Regulation note 6; Gottwald in MünchKommZPO, Art. 23 Brussels IIbis Regulation note 10; M. Weller in Althammer, Art. 23 Brussels IIbis note 7. 18 In this sense – for the Brussels IIbis Regulation – also Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 47 note 4. 19 This question was also disputed under Art. 23 (f) Brussels IIbis Regulation which contained the essentially same regulation; see pro: Gottwald in MünchKommFamFG, Art. 23 Brussels IIbis Regulation note 11; Rassi in Fasching Kommentar zu den Zivilprozessgesetzen, Art. 22/23 Brussels IIbis Regulation note 79; Rauscher in Rauscher, Brussels IIbis Regulation Art. 23 note 26; but contra: Hüßtege in Thomas/Putzo Brussels, IIbis Regulation Art. 23 note 6; Paraschas in Geimer/Schütze, Art. 23 Brussels IIbis note 44 et seq. 20 Art. 39 (1) (e) runs as follows: “if and to the extent that it is irreconcilable with a later decision 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 decision fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked”. It can hardly be doubted that the second “later decision” refers to both “another Member State” and “the non-Member State.” This was also the prevailing view to Art. 23 (f) Brussels IIbis Regulation (see preceding fn. 19).

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The more extensive and clearer formulation of Art. 39 (1) (e) – on the same problem as in Art. 50 – should also influence the interpretation of the shorter and less clear expression in Art. 50 (b). Most likely, it will be decisions given in the Member State of origin which fall within this alternative 19 of Art. 50 (b). It is irrelevant whether they formally quash the basic access or return decision or merely decide otherwise. It is further no requirement that the child still had his or her habitual residence in the other Member State where the later decision was rendered.21 Since the court or authority of that Member State must have been competent for its decision, also Arts. 10 and 11 apply which do not require even the child’s presence, and according to Art. 11 the child’s mere presence can suffice.

20

Since the recognition of access and return decisions of other Member States falls within the scope of the Brussels IIter Regulation22 these decisions must be recognised without any further procedure.23 However, depending on whether the ‘normal’ or the ‘privileged’ procedure is chosen, the grounds for non-recognition differ, and either Art. 39 or Art. 50 applies.24

21

c) Decisions given in the non-Member State of the child’s habitual residence (lit. b 2nd alt.) Finally, the court or authority in the enforcement Member State must give precedence to a later irre- 22 concilable decision of the non-Member State where the child’s habitual residence is located if this later decision would be recognised in the enforcement state. The recognition and even more the enforcement of access or return decisions of non-Member States 23 is unusual for EU-instruments.25 Generally, also the Brussels IIter Regulation does not affect third state decisions. Those given in the country of the child’s habitual residence and recognisable in the enforcement Member State shall however be dealt with like decisions from Member States. The child’s habitual residence in the non-Member State justifies to take notice of a decision in that state provided that the decision could be recognised. The habitual residence of the child must be determined in the same autonomous way26 as in Arts. 7 24 et seq.27 It may be doubted though whether Art. 50 (b) uses the same term of “habitual residence” as Arts. 7 et seq. However, at least within the same instrument same terms should be given the same meaning if no reasons for a different meaning are clearly evident. Such reasons are not visible here. To recognise the decision of a non-Member State appears only justified if the child is somewhat integrated in social and familial regard in that state.28 The generally uniform term of “habitual residence” of the child does on the other hand not exclude that different factors for the determination of the habitual residence may be given different weight depending on the situation in which the term’s meaning must be fixed. Thus, for instance, the intentions of the child’s parents have different weight depending on whether the parents agree or differ on the child’s habitual residence. Further, the child’s age plays a significant role.29 In any event, national provisions or views on the habitual residence are irrelevant. 21 In the same sense although still under the Brussels IIbis Regulation Gottwald in MünchKommFamFG, Art. 23 Brussels IIbis Regulation note 11; Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 23 note 24; M. Weller in Althammer, Art. 23 Brussels IIbis note 8; but contra – requiring the child’s habitual residence in the Member State where the decision was rendered – Hüßtege in Thomas/Putzo Brussels, IIbis Regulation Art. 23 note 6; Paraschas in Geimer/Schütze, Art. 23 Brussels IIbis note 43. 22 Also, still under the Brussels IIbis Regulation, Andrae in NomosKommentar I (2021), Brussels IIbis Regulation Art. 23 note 9; evidently also – under the Brussels IIbis Regulation – Gottwald in MünchKommZPO, Art. 23 Brussels IIbis Regulation note 11; Heiderhoff in MünchKommBGB Brussels IIbis Regulation Art. 23 note 24 who advocate that later decisions of other Member States always enjoy priority. 23 Art. 30 (1) and 34 (1); Art. 43 (1) and 45 (1). 24 Art. 56 (6) has no relevance for the recognition but only for the enforcement phase. 25 See, e.g., Art. 36 (1) and 39 (1) Brussels Ibis Regulation which extend only to the recognition and enforcement of decisions of Member States. 26 CJEU (C-523/07), ECLI:EU:C:2009:225 (A) para. 34. 27 See thereto Art. 7 note 26 et seq. (Garber). 28 See CJEU (C-523/07), ECLI:EU:C:2009:225 (A) para. 38 and infra Art. 50 note 27 (Magnus). 29 See CJEU (C-497/10 PPU), ECLI:EU:C:2010:829 (Barbara Mercredi v. Richard Chaffe) para. 52.

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Art. 50 Brussels IIter Irreconcilable decisions 25

“Where the habitual residence of the child in the non-Member State cannot be established”30 it may be questioned whether Art. 11 can be applied by analogy so that the child’s mere presence in that state may suffice for Art. 50 (b). The wording and aim of Art. 50 (b) clearly militate against such a solution. Lit. b requires the “habitual residence”; its aim is to recognise foreign decisions from outside the Member States only if there exists a sufficient link of the child to the foreign state in which the decision was rendered. Whereas the child’s habitual residence constitutes such a link, the child’s mere presence there does not. If the habitual residence cannot be established in the non-Member State whose court or authority delivered the decision, the latter cannot be recognised. A further reason to insist on the habitual residence-requirement is that the foreign institution should have a solid factual basis for its decision. The mere presence of the child with its regularly short duration will rarely provide such a basis.

26

According to the case-law of the CJEU the habitual residence requires that “(i)n addition to the physical presence of the child … other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.”31 Therefore, all circumstances of the case that are insofar relevant must be taken into account.32 Relevant circumstances are “(i)n particular, the duration, regularity, conditions and reasons for the stay …, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child … .”33 When determining the child’s habitual residence, these and further relevant factors, as the case may be, have to be taken into account.

27

Art. 50 (b) does not state at which time the habitual residence of the child must be located in the non-Member State. Under the Brussels IIbis Regulation the opinion prevailed that the date of the decision of the court or authority in the non-Member State was decisive.34 The same solution should be followed for Art. 50 (b).

28

Whether the enforcement Member State can recognise the decision of the non-Member State depends on the provisions either of eventually applicable international conventions or of the domestic law of the enforcement Member State. A relevant convention is in particular the Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children of 19 October 1996 (or its predecessor of 5 October 1961). 4. Irreconcilability

29

The central condition of irreconcilability of the basic decision with a relevant later decision must be autonomously interpreted. The CJEU generally held that two decisions are irreconcilable if “they entail legal consequences that are mutually exclusive.”35 This general principle applies here as well.

30 This is the precondition for the jurisdiction of Member States’ courts or authorities based on the mere presence of the child; see Art. 11 (1). 31 CJEU (C-523/07), ECLI:EU:C:2009:225 (A) para. 38; see also CJEU (C-497/10 PPU), ECLI:EU:C:2010:829 (Barbara Mercredi v. Richard Chaffe) para. 49; CJEU (C-111/17 PPU), ECLI:EU:C:2017:436 (OL v. PQ) para. 42. That a child had at least once been present in the state of his or her habitual residence is an indispensable requirement of the habitual residence: see CJEU (C-393/18 PPU), ECLI:EU:C:2018:835 (UD v. XB) para. 70; for an in depth-study to the general concept of habitual residence see Balthasar-Wach, 84 et seq., 173 et seq. 32 CJEU (C-523/07), ECLI:EU:C:2009:225 (A) para. 37; CJEU (C-497/10 PPU), ECLI:EU:C:2010:829 (Barbara Mercredi v. Richard Chaffe) para. 47. 33 CJEU (C-523/07), ECLI:EU:C:2009:225 (A) para. 39; with particular regard to very young children of few months, see CJEU (C-497/10 PPU), ECLI:EU:C:2010:829 (Barbara Mercredi v. Richard Chaffe) para. 50 et seq.; CJEU (C-111/17 PPU), ECLI:EU:C:2017:436 (OL v. PQ) para. 45 et seq. 34 See, e.g., Andrae in NomosKommentar I (2021), Brussels IIbis Regulation Art. 23 note 9; Siehr in Magnus/ Mankowski, Brussels IIbis Regulation Art. 23 note 39. 35 CJEU (C-145/86), ECLI:EU:C:1988:66 (Horst Ludwig Martin Hoffmann v. Adelheid Krieg) para. 22; also CJEU (C-80/00), ECLI:EU:C:2002:342 (Italian Leather SpA v. WECO Polstermöbel GmbH & Co.) para. 40; BGH RIW 2017, 78 para. 15 et seq.

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a) Covered irreconcilable decisions It is common opinion that contrary decisions on the same issue – on access or return of the same child – are covered by Art. 50. Under the comparable Art. 23 (e) and (f) Brussels IIbis Regulation it was disputed whether decisions on further issues, in particular on the child’s status, must also be taken into account. It had been argued that, e.g., paternity or adoption decisions do not fall within the scope of the Brussels IIbis Regulation and can thus not bar the enforcement of access or return decisions even if, for instance, the father who has been granted access or to whom the child shall be returned is no longer the child’s father.36 According to the prevailing view, also such status decisions could be relevant irreconcilable decisions.37 Otherwise, the conflict with subsequent contrary status decisions would have to be solved in another way. With respect to Art. 50 the former prevailing view should be followed.

30

b) Decisions on access rights Concerning rights of access, decisions are irreconcilable if they grant those rights, for instance, for 31 the same time to different persons. For example, the basic decision grants the mother as the holder of custody the month of June for holidays with the child whereas the later decision grants the right of access for the same time to the father and permits him to take the child to his country. The later decision would prevail and lead to a refusal of enforcement of the basic decision. In the cited case there would be even then a – partial – conflict between decisions if the mother was only generally granted the custody without specifying the June as ‘her’ holiday time. Fore, the later decision in favour of the father’s access right would exclude the mother’s right to determine the place of the child’s residence for the month of June. The later decision which should take, and hopefully took, notice of the basic decision and its reasons would prevail and bar the enforcement of the mother’s right to determine the child’s residence for the time of June. Irreconcilable differences may also occur between the basic and a subsequent decision if they order different modalities of the access, for instance, accompanied and unaccompanied access. Again, the modalities of the last decision enjoy priority.

32

c) Return decisions Concerning return decisions in the sense of Art. 42 (1) (b), there is already a conflict between two 33 contrary decisions which is in principle solved in favour of the later decision. For the issue of irreconcilability under Art. 50, this later decision ordering the return of the child constitutes the basic decision. This decision will not be enforced if the relevant subsequent decision refuses to return the child. Where the subsequent decision merely modifies the modalities of the return (at a later date, at another place etc.) the basic decision can only be enforced with these modalities.

V. Effects of Art. 50 1. Mandatory character of Art. 50 If the conditions of Art. 50 are given, “(t)he recognition and enforcement of a decision referred to in 34 Art. 42 (1) shall be refused.” The court or authority in the enforcement Member State, therefore, must refuse to recognise and enforce the basic decision. The institution has no discretion in that respect. Instead, the later decision, provided it is recognisable and enforceable, must be recognised and enforced.

36 See, e.g., Heiderhoff in MünchKommBGB, Brussels IIbis Regulation Art. 23 note 23 et seq. 37 See, e.g., Report Borrás para. 73; Andrae in NomosKommentar I (2021), Brussels IIbis Regulation Art. 23 note 8; Hausmann, Art. 23 EuEheVO note 103; Paraschas in Geimer/Schütze, Art. 23 Brussels IIbis note 41; Rauscher in Rauscher, Brussels IIbis Regulation Art. 23 note 24.

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Art. 51 Brussels IIter Enforcement procedure 2. Extent of refusal 35

The extent to which the court or authority in the enforcement Member State must not recognise and enforce basic decision depends on the extent of the irreconcilability with the subsequent conflicting decision. If the irreconcilability concerns merely a single point or small part on which the two decisions differ then only to this extent the more recent decision prevails over the basic decision and bars its recognition and enforcement. 3. No burden of proof on respondent

36

The respondent against whom the recognition of the basic decision is sought bears no formal burden of proof that a later decision exists and is irreconcilable with the basic decision. From the formulation “shall be refused” in Art. 50 it can and should be deduced that the court or authority has to take the decision into account ex officio if it gains knowledge of it by whatever means although the institution has no obligation to actively search for possibly irreconcilable decisions.38 Nonetheless, it is more than recommendable that the respondent informs the court or authority in the enforcement Member State of the later decision and why it might be irreconcilable. If available, the respondent should also produce the respective documents.

Section 3 Common provisions on enforcement (Art. 51–Art. 63) Subsection 1 Enforcement (Art. 51–Art. 55)

Article 51 Enforcement procedure 1. Subject to the provisions of this Section, the procedure for the enforcement of decisions given in another Member State shall be governed by the law of the Member State of enforcement. Without prejudice to Articles 41, 50, 56 and 57, a decision given in a Member State which is enforceable in the Member State of origin shall be enforced in the Member State of enforcement under the same conditions as a decision given in that Member State. 2. The party seeking the enforcement of a decision given in another Member State shall not be required to have a postal address in the Member State of enforcement. That party shall be required to have an authorised representative in the Member State of enforcement only if such a representative is mandatory under the law of the Member State of enforcement irrespective of the nationality of the parties. I. Introduction . . . . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . . III. Commentary . . . . . . . . . . . . . . . . . . .

4 6

1. Law applicable to the procedure of enforcement . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Postal address and authorized representative in the Member State addressed . . . . . . . . . 10

38 This deduction can also be inferred from Art. 59. Although the provision deals with a separate application for refusal of enforcement it can be applied by analogy. Its paras. 2 and 5 show that the applicant has no strict burden of proof concerning the basic decision and the respective certificate. The court can dispense with the production of these documents. Thus, the applicant does not lose the suit only because he or she is unable to prove the existence and content of the documents (for Art. 50 the irreconcilable decisions) if the court has other means to get knowledge of them.

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I. Introduction The main purpose of Art. 51 Brussels IIter is to delineate the respective scopes of the Regulation and national law with respect to enforcement of decisions under the Regulation. As long as a declaration of enforceability was required to enforce foreign judgments, EU Regulations “merely regulate[d] the procedure for obtaining an order for the enforcement of foreign enforceable instruments and [did] not deal with execution itself, which continued to be governed by the domestic law of the court in which enforcement is sought”.1 The abolition of the exequatur procedure has led to the transfer of certain functions to enforcement authorities,2 or to postpone certain remedies to the enforcement stage.3 As a result, the European lawmaker was forced to adopt a limited number of uniform rules governing the intervention of enforcement authorities or the intervention of courts at the stage of enforcement.

1

Although it was not the main goal of the European lawmaker, Art. 51 Brussels IIter also confirms the undisputable principle that the procedure of enforcement of decisions under the Regulation is primarily governed by the law of the Member State of enforcement. As was already underlined, the competence of the law of the place of enforcement was recognised several times by the European Court of Justice under the previous European texts. The same cases had already qualified the competence of national law in cases where such rules would impair the effectiveness of the applicable European text.4 The same principle applies all the more in cases where the Brussels IIter Regulation lays down uniform rules applicable in the context of the enforcement of foreign decisions.

2

The consequence of the competence of the law of the Member State of enforcement is that the same 3 rules apply to the enforcement of domestic and foreign decisions. Art. 51(1) Brussels IIter insists that decisions rendered in other Member states should be “enforced in the Member State of enforcement under the same conditions as a decision given in that Member State”, and Recital 58 of the preamble explains that a judgment rendered in another Member State “should be treated as if it had been given in the Member State of enforcement”. The purpose of these provision and clarification seems to be to recall the principle of non discrimination, and to offer a ground for disapply, within the scope of the Regulation, any national rule distinguishing between foreign and domestic judgments.

II. Legislative history Art. 51 Brussels IIter is inspired from paragraphs 1 and 3 of Art. 41 Brussels Ibis, which have become paragraphs 1 and 2 of Art. 51 Brussels IIter. The European lawmaker has changed a few terms (the Member State “addressed” has become the Member State “of enforcement”), and reformulated the second paragraph, but without any apparent intention of changing the substance of the rules. The rules in Art. 51(1) Brussels IIter were already found in Art. 47 Brussels IIbis. In contrast, Art. 51(2) Brussels IIter introduces a new rule, as Art. 30(2) Brussels IIbis required giving an address within the jurisdiction of the court.

4

The second paragraph of Art. 41 Brussels Ibis was also adopted, but it has become an autonomous provision under the Brussels IIter Regulation (Art. 57 Brussels IIter).

5

III. Commentary 1. Law applicable to the procedure of enforcement Under Art. 51(1) Brussels IIter, the enforcement procedure is governed by the domestic law of the State of enforcement. Under the Brussels Convention, the European Court of Justice had already the 1 Deutsche Genossenschaftsbank v. SA Brasserie du Pêcheur, (C-148/84) (1985) ECR 1981 para. 18; Meletis Apostolides v. David Charles and Linda Elizabeth Orams, (C-420/07) (2009) ECR I-3571 para. 69. 2 See Arts. 52, 56 Brussels IIter. 3 Art. 59 Brussels IIter. 4 See below Art. 51 note 6 et seq. (Cuniberti).

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Art. 51 Brussels IIter Enforcement procedure opportunity to make clear that “execution itself […] continues to be governed by the domestic law of the court in which execution is sought”.5 7

As a consequence, when the judgment creditor asks the enforcement court/authority for the enforcement of a decision on parental responsibility on the territory of the Member State addressed, s/he will have to do so in compliance with the forms and rules used in that State. Recital 60 of the Preamble clarifies that it is “for the authority competent for enforcement or the court of the Member State of enforcement to order, take or arrange for specific measures to be taken at the enforcement stage, such as any non-coercive measures which might be available under the national law of that Member State, or any coercive measures which might be available under that law, including fines, imprisonment or the fetching of the child by a bailiff.” As under the Brussels Ibis Regulation, the only exception would be where the application of the procedural rules of the Member State in which enforcement is sought would impair the effectiveness of the scheme laid down by the regulation as regards enforcement orders, by frustrating the principles laid down in that regard, whether expressly or by implication, by the regulation itself.6

8

Unlike the Brussels Ibis Regulation,7 the Brussels IIter Regulation does not require that measures ordered by the foreign court, but unknown in the law of the addressed State, be adapted to a measure or an order known in that law which have equivalent effects and pursues similar aims and interests. Recital 61 of the Preamble to the Brussels IIter Regulation explains that the enforcement court/ authority of the Member State addressed should not have the power to “interfere with, or go beyond, the essential elements of the decision on the rights of access”, and the court of enforcement may not “replace measures that are unknown in the law of the Member State of enforcement, with different measures”. It seems, therefore, that the rules in art. 54 Brussels Ibis should be considered as inapplicable in the context of the Brussels IIter Regulation, and the competence of the law of the State of enforcement does not include the power to adapt the measures prescribed by the decision, which are binding on the authorities of the state of enforcement.8

9

The competence of the law of the place of enforcement results in a fragmentation of the law of enforcement in the European Union. Some scholars have argued that this creates a deterrence effect, as lack of knowledge of foreign law might increase the costs of cross border enforcement.9 The argument is unconvincing: litigants rarely know the law of enforcement, and the competence of the law of the place of enforcement will only require to hire different lawyers for the litigation in the state of origin and the enforcement in another Member State, which will not necessarily increase the costs of enforcement.10 2. Postal address and authorized representative in the Member State addressed

10

On the model of the Brussels Convention11 and the Brussels I Regulation,12 Art. 30(2) Brussels IIbis required that the party seeking enforcement “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 [would] not provide for the furnishing of such an address, the applicant [had to] appoint a representative ad li5 See Deutsche Genossenschaftsbank v. SA Brasserie du Pêcheur, (C-148/84) (1985) ECR 1981, para. 18; Società Immobiliare Al Bosco Srl (C-379/17), ECLI:EU:C:2018:806 para. 26. 6 See, in the context of the Brussels Ibis Regulation, Società Immobiliare Al Bosco Srl, para. 26; Meletis Apostolides v. David Charles and Linda Elizabeth Orams, (C-420/07) (2009) ECR I-3571. 7 Brussels Ibis Regulation, art. 54. See already DHL Express France SAS v. Chronopost SA, (C-235/09) (2011) ECR 2801, para. 56: “the court seized of the case in that Member State must […] attain the objective pursued by the measure by having recourse to the relevant provisions of its national law which are such as to ensure that the prohibition originally issued is complied with in an equivalent manner”. 8 A separate issue is whether the authorities of the State of enforcement may specify details where the foreign decision is vague: see below Art. 54 note 5 et seq. (Cuniberti). 9 Gascon Inchausti/Requejo Isidro in Hess/Ortolani (eds.), Impediments of National Procedural Law to the Free Movement of Judgments (2019), Vol. I, 68, 74. 10 Cuniberti in von Hein/Kruger (eds.) Informed Choices in Cross-Border Enforcement (2020), 425. 11 See Art. 33 para. 2 (de Lima Pinheiro). 12 See Art. 40(2) Brussels IIter.

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tem”. The European Court of Justice had ruled that the purpose of this provision was to “enable the party against whom enforcement has been ordered to lodge an appeal under the Convention without having to embark on formalities outside the confines of his home jurisdiction”.13 As Art. 41(3) Brussels Ibis, Art. 51(2) Brussels IIter abolishes the requirement of either providing a 11 postal address or appointing a local authorized representative in the Member State of enforcement. In so far as they impacted only parties based outside of the State of enforcement, those requirements were barely compatible with the objective of achieving a single area of justice in the European Union. Art. 51(2) Brussels IIter also prevails on any contrary national rules which might require that foreign litigants give a local postal address or hire a local representative. Such rules, in so far as they would only apply to foreign nationals or domiciliaries, would constitute discriminations on the basis of nationality or domicile. However, if they were not solely applicable to foreign litigants but rather to all litigants before the relevant court, they would not raise the same issue and would thus be left untouched. Art. 51(2) Brussels IIter provides expressly so for authorized representative, which can be required if the rule applies without discriminating against foreign nationals or domiciliaries. No such exception is provided for the provision of a local postal address, as it necessarily targets foreign based litigants only.

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Article 52 Authorities competent for enforcement The application for enforcement shall be submitted to the authority competent for enforcement under the law of the Member State of enforcement as communicated by that Member State to the Commission pursuant to Article 103.

I. Introduction Art. 52 Brussels IIter is an entirely new provision. European regulations on the recognition and en- 1 forcement of foreign judgments have traditionally refrained from regulating enforcement per se and entirely referred the matter to the law of the Member State of enforcement. It has thus always been considered that it was for the Member State of enforcement to identify the authority competent for enforcement. While the competence of the Member State of enforcement remains, the Brussels IIter Regulation establishes a new obligation for the Member States to indicate which are the enforcement authorities competent to proceed on their territory. The goal seems to be to facilitate cross-border enforcement by informing judgment creditors of the authorities that they should contact in other Member States.

II. Communications of the Member States Pursuant to Art. 103(d) Brussels IIter, the Member States were expected to notify the Commission of the authorities competent for enforcement pursuant to Art. 52 Brussels IIter by 21 April 2021.The list of the authorities communicated by the Member States is available on the e-justice portal of the Commission.1 They are either judicial or non judicial authorities.

13 Fernand Carron v. Federal Republic of Germany, (C-198/85) (1986) ECR 2437, 2444, para. 8. 1 European e-Justice Portal – Brussels IIb Regulation – Matrimonial matters and matters of parental responsibility (recast) (europa.eu).

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Art. 53 Brussels IIter Partial enforcement

Article 53 Partial enforcement 1. A party seeking the enforcement of a decision may apply for partial enforcement of the decision. 2. Where a decision has been given in respect of several matters and enforcement has been refused for one or more of them, enforcement shall nonetheless be possible for the parts of the decision not affected by the refusal. 3. Paragraphs 1 and 2 of this Article shall not be used to enforce a decision ordering the return of a child without also enforcing any provisional, including protective, measures, which have been ordered to protect the child from the risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention. I. Introduction . . . . . . . . . . . . . . . . . . .

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II. Requirements . . . . . . . . . . . . . . . . . . . 1. Grounds for partial enforcement . . . . . . . .

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2. Severability . . . . . . . . . . . . . . . . . . . . 3. Exception for certain provisional measures . .

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III. Procedure . . . . . . . . . . . . . . . . . . . . . 10

I. Introduction 1

Art. 53 Brussels IIter clarifies that foreign decisions can be enforced only partially, either because the party seeking enforcement applied for partial enforcement, or because only parts of the decision may be enforced.

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Although it superficially resembles Art. 36 Brussels IIbis, Art. 53 Brussels IIter is a new provision. Under the Brussels IIbis Regulation, foreign decisions could be enforced only after being declared enforceable by a court of the requested State. In contrast, under the new Regulation, foreign decisions are directly enforceable, “without any declaration of enforceability being required”.1 Art. 36 Brussels IIbis regulated the power of courts to declare foreign decisions partially enforceable. Art. 53 Brussels IIter is concerned with enforcement, and thus regulates the power of enforcement authorities to partially enforce foreign decisions.

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The existence of Art. 53 Brussels IIter is surprising. Where the declaration of enforceability was abolished in the context of the Brussels I Regulation, the provision corresponding to Art. 36 Brussels IIbis, Art. 48 Brussels I, was abolished as well. There is no equivalent of Art. 53 Brussels IIter in the Brussels Ibis Regulation. While Art. 53(2) Brussels IIter is a logical provision, it is unclear whether Art. 53(1) Brussels IIter should exist in an instrument concerned with family law and dominated by the interest of the child.2

II. Requirements 1. Grounds for partial enforcement 4

There are two series of grounds which could justify partial enforcement. First, there could be objective grounds preventing enforcement under the Regulation. One such ground is where the decision only partly falls within the scope of the Regulation.3 In such cases, the enforceability of the part of the decision falling outside of the scope of the Regulation will be governed by another legal regime. The applicant should seek a declaration of enforceability4 or, as the case may be, enjoy immediate enforceability,5 under this other legal regime. Another reason to allow partial enforcement is where a 1 See Art. 34. 2 Infra Art. 53 note 5. 3 See, in the context of the 1968 Brussels Convention, C-220/95, ECLI:EU:C:1997:91, Antonius van den Boogaard v Paula Laumen. 4 For instance under the Matrimonial Regulations. 5 For instance under the Maintenance regulations.

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ground for denying enforcement exists only for part of the decision. This could be the case, for instance, if only part of the decision violated the public policy of the forum, or if an irreconcilable decision existed which had only ruled on certain matters decided by the foreign decision. In this second case scenario, enforcement should be allowed for one part of the decision, but not for the other.6 Secondly, partial enforcement could be requested by the party seeking enforcement of the decision. 5 By expressly providing so in a separate provision, Art. 53(1) Brussels IIter suggests that the party seeking enforcement may do so irrespective of the existence of an objective ground for enforcing partially the decision. It is submitted, however, that the party seeking enforcement of the decision does not have full discretion to pick the parts of the judgment that it would want to enforce.7 Irrespective of the issue of the potential interdependence of the various parts of the judgment (infra), rulings in family matters should not be considered as rendered for the sole benefit of one party. Allowing the party seeking enforcement of the judgment to pick the parts of the judgment that s/he would want to enforce would amount to allowing that party to change its content. The new exception introduced by Art. 53(3) Brussels IIter is evidence of this. The power of the party seeking enforcement should thus be constrained. One way of achieving this result would be to adopt a broad definition of the interdependence of the different parts of the judgments. 2. Severability Art. 53 Brussels IIter does not expressly require that the parts of the foreign decision which will not be enforced and those which will be severable. Many linguistic versions of Art. 53 Brussels IIter suggest, however, that the parts of the decisions which could be enforced partially should have ruled on different claims.8 It should not be possible to enforce partially a foreign order on access with several dates for visits of one child.9 In contrast, foreign decisions ruling on several children, or on both the return of the child and access, rule on different claims and could thus, in theory, be enforced partially.

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European scholars go farther and often argue, in the context of other regulations, that partial enforceability may only be granted where the two different matters are not interdependent10 and are thus severable.11 Their focus, it seems, is on the reasons for allowing each of the claims, rather than on the remedies themselves. Thus, claims should be considered as interdependent if allowing one is logically necessary to allow the other. If the matters are considered interdependent, the existence of a ground for denying enforcement for one part of the judgment should lead to the refusal to declare enforceable the entire foreign decision.

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3. Exception for certain provisional measures Art. 53(3) Brussels IIter introduces a new exception to the operation of the rule in Art. 53 Brussels II- 8 ter for decisions ordering the return of a child and provisional measures ordered to protect the child from the risk referred to in point (b) of Art. 13(1) of the 1980 Hague Convention. The risk referred in this provision 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”.12 For instance, if the foreign court ordered the return of the child and ordered, as a provisional measure, that the child should continue 6 And enforcement could not be allowed, or enforceability granted, under another legal regime. 7 See, however, Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2nd ed. 2017), Art. 36 note 8. 8 “capi della domanda, “Ansprüche”. While the French version used to also refer to claims (“chefs de la demande”), it now refers to “points” and thus suggests otherwise. 9 Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2nd ed. 2017), Art. 36 note 5. 10 See, in the context of the Succession Regulation, Marazopolou in Pamboukis (ed.), EU Succession Regulation No 650/2012 (2017), Art. 55 note 3; Ziino in Calvo Caravaca/Davi/Manzel (eds.), The EU Succession Regulation – A Commentary (2016), Art. 55 note 3. 11 See, in the context of the Brussels I Regulation, Briggs/Rees, Civil Jurisdiction and Judgments (5th ed. 2009), note 7.30; Gaudemet-Tallon, Compétence et exécution des jugements en Europe (4th ed. 2010), note 467. See also, in the context of the Brussels IIbis Regulation, Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2nd ed. 2017), Art. 36 note 7. 12 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Art. 13(1)(b).

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Art. 53 Brussels IIter Partial enforcement to reside with the primary care giver or how contact with the child should take place after return until the court of the habitual residence of the child has taken measures it considers appropriate,13 enforcement authorities in the requested State may not enforce only the part of the decision ordering the return, but must also enforce the provisional measure ordered by the foreign court. 9

It is hard to see on which ground the enforcement of such a provisional measure could be denied under the Regulation.14 There is no reason, therefore, why the competent enforcement authority would only want to enforce the return order. The significance of Art. 53(3) Brussels IIter seems to be limited to cases where a party would only seek enforcement of the return order (for instance to avoid enforcement of the provisional measure granting rights to the other parent). Art. 53(3) Brussels IIter operates as a limitation of the discretion of the party seeking enforcement to decide which parts of the foreign decision s/he would want to enforce.

III. Procedure 10

The operation of Art. 53 Brussels IIter raises a number of issues which did not arise under its predecessor, Art. 36 Brussels IIbis. The first is that different authorities might have competence to refuse enforce for certain matters decided by the foreign decision and to decide whether the remaining parts of the decision should be enforced. The second is that Art. 53 Brussels IIter regulates the power of enforcement authorities, which might not be judicial authorities.

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The initial rule which inspired Art. 53 Brussels IIter assumed that a single (judicial) authority was asked to decide on both whether to declare enforceable the foreign judgment and whether, should the foreign decision be partially denied enforceability, the relevant authority should declare enforceable the remaining parts. This is not necessarily the case in the context of the Brussels IIter Regulation. The authority which has competence to refuse enforcement is a court, which need not be the same as the authority competent for enforcement. The authority competent for enforcement might a different court, or an extra-judicial authority.

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If the authority competent for enforcement is the court which also has competence to entertain applications to refuse enforcement, Art. 53 Brussels IIter can operate in the same way as Art. 36 Brussels IIbis operated.15 The Court can either be requested by the party seeking enforcement to enforce the foreign decision partially, or grant partial enforcement granted ex officio in the context of an application to refuse enforcement of the decision. In this last case scenario, the court will be able to address the issue of partial enforcement in the same decision ruling on the application to refuse enforcement. If the court finds that it cannot enforce certain parts of the decision, the language of Art. 53 Brussels IIter suggests that the court is under the obligation (“shall”) to enforce partially the remaining parts of the decision, and that it should do so ex officio.

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If the authority competent for enforcement is not the court which also has competence to entertain applications to refuse enforcement, it will always be possible to request from this authority partial enforcement. Art. 53(2) Brussels IIter will operate differently, however, as the authority competent for entertaining an application to refuse enforcement will be different. If the authority competent for enforcement is also a court, it should apply Art. 53(2) Brussels IIter and decide whether the requirements for enforcing the parts of the foreign decision which were not refused enforcement are met.16 If the authority competent for enforcement is not a court, but an extra judicial authority, it is submitted that it should be expected to apply Art. 53(2) Brussels IIter, and that it would therefore be for the court which entertained the application to refuse enforcement to apply it and clarify which parts of the foreign decision would remain enforceable for the enforcement authority.

13 14 15 16

See recital 46 of the Preamble to the Brussels IIter Regulation. Quite to the contrary, the Regulation requires their enforcement: see recitals 30 and 59 of the Preamble. Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2nd ed. 2017), Art. 36 note 4. If the court competent to entertain the application to refuse enforcement applied Art. 53(2), the issue of the res judicata of this order and whether it binds the court competent to enforce arises. It should be resolved under the law of the Member State of enforcement.

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Article 54 Arrangements for the exercise of rights of access 1. The authorities competent for enforcement or courts of the Member State of enforcement may make arrangements for organising the exercise of rights of access, if the necessary arrangements have not at all or have not sufficiently been made in the decision given by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this decision are respected. 2. The arrangements made pursuant to paragraph 1 shall cease to apply following a later decision by the courts of the Member State having jurisdiction as to the substance of the matter. I. Introduction . . . . . . . . . . . . . . . . . . . .

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II. Legislative history . . . . . . . . . . . . . . . . .

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III. Power of Enforcement Authorities . . . . . . .

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IV. Enforcement Procedure . . . . . . . . . . . . .

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V. Provisional Measures . . . . . . . . . . . . . . . 10

I. Introduction Art. 54 Brussels IIter establishes the right of competent authorities of the State of enforcement to make arrangements for organising the exercise of rights of access granted by a foreign court when such arrangements were not made, or insufficiently made, by the decision of the foreign court. The goal is thus to clarify that enforcement authorities are entitled to supplement the foreign decision, but not to amend it, which would violate the principle of mutual trust and the prohibition to review the foreign decision on the merits. The existence of a specific provision reveals that it is difficult for a foreign court to organise the right of access to children in a foreign country, and that it is likely unavoidable that authorities of the state of enforcement step in.1

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II. Legislative history The rule in Art. 54 Brussels IIter was originally introduced in Art. 48 Brussels IIbis, with a slightly different heading (“practical arrangements for the exercise of rights of access”). A similar provision could be found in the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children of 20 May 1980,2 which is currently in force 37 European States.3 Art. 11 of the Convention grants more discretion to the state of enforcement to fix the conditions of the right of access, however, which may explain why the EU lawmaker did not immediately adopt the same rule.4

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A major difference with Art. 48 Brussels IIbis is that Art. 54 Brussels IIter does not grant the power to make the necessary arrangements to courts, but to enforcement authorities, which may or may not be judicial. This will likely have an impact of the operation of Art. 54 Brussels IIter.

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III. Power of Enforcement Authorities Art. 54 Brussels IIter grants to the competent authorities of the State of enforcement5 the power to make arrangements for the exercise of rights of access. This power is limited by the principle of mutual recognition of decisions and the prohibition to review foreign decisions on the merits.6 As ex-

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Magnus/Mankowski/McEleavy, Brussels IIbis Regulation (2nd ed. 2017), Art. 48 note 2. ETS No.105. The Brussels IIter Regulation takes precedence over the Convention: see Art. 95 Brussels IIter. Magnus/Mankowski/McEleavy, Brussels IIbis Regulation (2nd ed. 2017), Art. 48 note 5. See below Art. 54, note 8 (Cuniberti). See Art. 71 Brussels IIter.

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Art. 54 Brussels IIter Arrangements for the exercise of rights of access pressly provided by Art. 54 Brussels IIter, the power that it recognises may not lead to any change in the “essential elements of the foreign decision”, which must be respected. 5

The tension between the prohibition to review and amend the foreign decision and the practical necessity of allowing local authorities to decide on certain details of the exercise of rights of access can be resolved by considering that Art. 54 Brussels IIter only grants a power to supplement the foreign decision. Authorities of the State of enforcement are allowed to make the necessary arrangements when those were not made by the foreign court, or were insufficiently made. The goal is to make the foreign decision “more concrete and precise”.7 The foreign decision is thus not modified or revised, but merely supplemented. The general idea that local authorities are only empowered to fix details is conveyed by the use of the terms “arrangement” and “practical”.8 Clear examples of issues that the local enforcement authorities are empowered to arrange include the place and time where a child should be picked up and dropped off, which the foreign court will often not address in its decision, for lack of knowledge of the local situation. Without such arrangements by local enforcement authorities, certain foreign orders might simply be unenforceable.9

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In contrast, the competent authorities of the state of enforcement may not change the issues that the foreign court did address in its decision in sufficient details. If the foreign court specified that a parent should have access to his children each other week-end, the local enforcement authorities may not change this by pretending to arrange the exercise of the right to access. If the issue has been addressed by the foreign decision, it must be enforced. The arrangements may not “interfere with, or go beyond, the essentials elements of the decision”.10 Recital 61 goes as far as suggesting that Art. 54 could not be the vehicle for “replac[ing] measures that are unknown in the law of the Member State of enforcement, with different measures”.11 The foreign decision may only be amended, and as the case may be, the conditions for the exercise of the right of access may only be changed, by the foreign court. In this respect, it is irrelevant whether the content of the foreign decision is outdated,12 or whether circumstances have changed (for instance a child does not want to see the parent with the right of access): such arguments are to raised in proceedings before the foreign court in proceedings aiming at issuing a new decision replacing the one which is currently enforceable, and will remain so until it is revisited in the Member State of origin. Indeed, under Art. 54 Brussels IIter, the authority competent to apply Art. 54 Brussels IIter is not necessarily a court anymore,13 but is an enforcement authority, which may not be judicial. It is thus even clearer that it has no power to revisit the foreign decision.

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In this context, it is highly surprising that Recital 61 contemplates as a possible ground for arranging the exercise right of access complying with “legal conditions required under the law of the Member State of enforcement”. The proposition that local rules of the state of enforcement should be applied irrespective of whether they supplement the foreign decision is directly contrary to the principle of mutual recognition and prohibition of review on the merits. Under other regulations, the most important rules of the forum can be taken into account through the public policy exception, but the EU lawmaker has precisely decided to exclude this traditional technique for decisions on the right to access. The goal of the EU lawmaker, however, was likely to justify the intervention of certain local authorities, which could be done on other grounds.14

7 Recital 61 of the Preamble to the Brussels IIter Regulation. 8 The term practical does not appear anymore in Art. 54 Brussels IIter, but it still does in Recital 61 of the Preamble to the Brussels IIter Regulation. 9 Recital 61 of the Preamble to the Brussels IIter Regulation. 10 Recital 61 of the Preamble to the Brussels IIter Regulation. 11 This is quite remarkable, given that the opposite rule applies under other regulations: see Art. 51, note 6 (Cuniberti). 12 See, however, Magnus/Mankowski/McEleavy, Brussels IIbis Regulation (2nd ed. 2017), Art. 48 note 8. 13 Even under Art. 48 of the Brussels IIbis Regulation, it was rightly held that courts in the Member State of enforcement clearly did not have jurisdiction to regulate access rights and therefore cannot simply substitute its own views: Re S-R (Jurisdiction: Contact) (2008) 2 FLR 1741; Re G. (Foreign Contact Order: Enforcement) (2003) EWCA Civ 1607, (2004) 1 FLR 378 (C.A.). 14 Below Art. 54 note 9 (Cuniberti).

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IV. Enforcement Procedure While the foreign decision determines the substantive content of the rights of access, it is for the State 8 of enforcement to determine the procedure of enforcement of the decision,15 including the authorities competent for that purpose. Art. 54 Brussels IIter grants power to authorities competent for enforcement or the courts of the Member State of enforcement. While the reference to authorities competent for enforcement is clear and logical,16 the additional reference to “courts of the Member State of enforcement” without any further clarification contradicts the general policy of the Regulation to inform parties to cross-border disputes relating to parental responsibility about the national authorities competent for applying the Regulation.17 It is submitted that this additional reference should be understood as a reference to courts competent for enforcement as designated under Art. 52 Brussels IIter. Recital 61 gives as examples of legal requirements that should be applied as arrangements of the exercise of rights of access local rules requiring the participation of the Child Authority or a psychologist at the stage of enforcement. It is submitted that a better (and acceptable) rationale for the application of these rules should be that Member States are free to determine the enforcement procedure, and the authorities competent for enforcing decisions under the Regulation.

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V. Provisional Measures While the enforcement authorities of the State of enforcement could not revisit a foreign decision un- 10 der Art. 54 Brussels IIter, they have the power to take provisional measures in urgent cases for children present on their territory under Art. 15 Brussels IIter. It has been convincingly argued that certain aspects of the right of access could justify the taking of provisional measures, for instance for ensuring some form of contact which would not be possible under the regime established by the foreign decision.18 Any such measure would be replaced by a new decision by the foreign court.19 Art. 54 Brussels IIter only refers to the arrangements for the exercise of rights to access made by a for- 11 eign court having jurisdiction on the merits. Arrangements for the exercise of rights to access could also be made, however, by a court issuing provisional measures, and while most provisional measures under the Regulation are territorial, some can produce extra-territorial effect and be enforceable in other Member States.20 It is submitted that the rationale of Art. 54 Brussels IIter equally requires that its rules be applicable to make arrangements for rights of access ordered by such provisional measures.

Article 55 Service of certificate and decision 1. Where enforcement is sought of a decision given in another Member State, the appropriate certificate issued pursuant to Articles 36 or 47 shall be served on the person against whom enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the decision, if not already served on that person, and, where applicable, by the details of the arrangement referred to in Article 54(1). 2. Where service has to be effected in a Member State other than the Member State of origin, the person against whom enforcement is sought may request a translation or transliteration of the following: 15 16 17 18 19 20

Art. 51(1) Brussels IIter. Art. 52 Brussels IIter. See Art. 52, 58, 62 Brussels IIter. See Magnus/Mankowski/McEleavy, Brussels IIbis Regulation (2nd ed. 2017), Art. 48 note 10. Art. 15(3) Brussels IIter. Measures ordered to protect the child from the risk referred to in point (b) of Art. 13(1) of the 1980 Hague Convention: see Recitals 30 and 46.

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Art. 55 Brussels IIter Service of certificate and decision (a) the decision, in order to contest the enforcement; (b) where applicable, the translatable content of the free text fields of the certificate issued pursuant to Article 47, if not written in or accompanied by a translation or transliteration into either a language which he or she understands, or the official language of the Member State in which he or she is habitually resident or, where there are several official languages in that Member State, the official language or one of the official languages of the place where he or she is habitually resident. 3. Where a translation or transliteration is requested under paragraph 2, no measures of enforcement may be taken other than protective measures until that translation or transliteration has been provided to the person against whom enforcement is sought. 4. Paragraphs 2 and 3 shall not apply to the extent that the decision and, where applicable, the certificate referred to in paragraph 1 have already been served on the person against whom enforcement is sought in compliance with the translation or transliteration requirements in paragraph 2. I. Introduction . . . . . . . . . . . . . . . . . . . .

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III. Service of the certificate . . . . . . . . . . . . .

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II. Legislative history . . . . . . . . . . . . . . . . .

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IV. Translation . . . . . . . . . . . . . . . . . . . . .

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I. Introduction 1

Art. 55(1) Brussels IIter requires that the certificate issued pursuant to Art. 36 Brussels IIter (non privileged decisions in matters of parental responsibility) or 47 Brussels IIter (privileged decisions defined in Art. 42 Brussels IIter) be served on the person against whom enforcement is sought prior to the first enforcement measure. It applies only to cross-border enforcement and thus establishes an additional, intermediate measure necessary for the enforcement of foreign judgments. The purpose of the abolition of exequatur was to abolish all intermediate measures and all the costs associated with them. The requirement of Art. 55 Brussels IIter contradicts this goal. It generates additional costs, in particular when service is to be initiated and funded by the party seeking enforcement, and delays the enforcement of foreign decisions. The ultimate goal of the abolition of exequatur was to ensure that foreign decisions would be treated as national decisions, as stated by Recital 58. Art. 55 Brussels IIter also contradicts this goal by establishing a specific requirement for the enforcement of foreign decisions, which limits the possibilities of the creditor to take the debtor by surprise.1

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Recital 64 of the Preamble explains that the purpose is to inform the debtor that enforcement of the judgment will be sought in another Member State. It is unclear why the debtor should be specifically informed of this. In the context of the Brussels Ibis Regulation, certain scholars have regretted that the Regulation does not afford more protection, by requiring that the certificate states where and when the creditor intends to enforce his judgment, and providing a uniform time limit to start enforcement after service of the certificate.2 This would be unwise and would even more contradict not the policy of liberalisation of cross border enforcement of judgments. It would also contradict the traditional understanding of the delineation of the scope of judgments regulations. As the European Court of Justice has repeatedly held in the context of the Brussels Ibis Regulation,3 the Brussels Ibis Regulation does not regulate enforcement in the strict sense, which is left to national laws. Although the Brussels IIbis Regulation regulates a bit more enforcement than the Brussels Ibis Regulation, it is submitted that the traditional understanding still applies in the context of the Brussels IIbis Regulation. The protection of the debtor in enforcement proceedings should have been left entirely to national laws.

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The most convincing rationale for the obligation to serve the certificate is that it is a fundamental procedural right for any party to be informed of the issuance of any judicial document in proceed1 Schlosser/Hess, EuZR (2021), Art. 43 note 1. 2 Dickinson/Lein/Kramer, The Brussels I Regulation Recast (2015), note 13.238. 3 Società Immobiliare Al Bosco Srl, (C-379/17), ECLI:EU:C:2018:806 para. 26; Meletis Apostolides v. David Charles and Linda Elizabeth Orams, (C-420/07) (2009) ECR I-3571 para. 69.

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ings to which s/he is a party. This is even more the case where the document can be issued ex parte, as Art. 36 and 47 Brussels IIter suggest the certificates can be.4 In order to alleviate the costs and delays generated by the obligation to serve the certificate as a precondition for enforcement, creditors should request its issuance at the earliest possible stage, so that the certificate can, at best, be delivered simultaneously with the judgment.

II. Legislative history Art. 55 Brussels IIter is a new provision in the context of the Brussels II Regulation. It is entirely inspired from Art. 43 Brussels Ibis. Its language is essentially the same, and the preamble of the Brussels IIter Regulation has also incorporated the relevant recital of the preamble Brussels Ibis Regulation relating to the service of the certificate. The only difference is that Art. 55 Brussels IIter omits the rule in Art. 43(3) Brussels Ibis which excludes the requirement to serve the certificate for provisional measures, which can be explained by the fact that, in principle, provisional measures under the Brussels II Regulation have a territorial reach.

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III. Service of the certificate Art. 55(1) Brussels IIter requires that the certificate issued pursuant to either Art. 36 or 47 Brus- 5 sels IIter be served on the person against whom enforcement is sought. The concept of service should be defined in accordance with the law of the Member State of origin of the judgment. The law of the issuing court should further determine whether this step should be completed by the judgment creditor or the issuing court.5 In the context of Art. 55 Brussels IIter, the concept of person against whom enforcement is sought should be understood as including only the defendant(s) in the proceedings which led to the issuance of the decision. Although Art. 55(1) Brussels IIter is silent in this respect, Recital 64 of the Preamble explains that the certificate should be served “in a reasonable time” before the first enforcement measure. Given that the national law of the state of enforcement will also grant a time limit to challenge any enforcement measure, the usefulness of adding an autonomous time limit (however vague) to prepare to resist enforcement6 is unclear. It is submitted that local time limits to challenge enforcement measures should, in principle, be considered as satisfying the requirement of offering a reasonable time limit. As the certificate does not specifically mention the jurisdiction where enforcement will be sought, it is only necessary to serve it once on the debtor, prior to the first enforcement measure in another Member State. It is not necessary to serve it again if enforcement is sought in a second foreign Member State. As service of the certificate on a given person is arguably the first step of enforcement against that person, it gives him/her standing to apply for refusal of enforcement in all Member States.7

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Unlike Art. 43(3) Brussels Ibis, Art. 55 Brussels IIter does not exclude the obligation to serve the cer- 7 tificate for decisions incorporating a protective measure. In principle, provisional measures have a territorial reach under the Regulation and need not be enforced abroad. There is, however, an exception for measures ordered to protect the child from the risk referred to in point (b) of Art. 13(1) of the 1980 Hague Convention.8 Such provisional measures should be enforced in other Member States. A literal interpretation of Art. 55 Brussels IIter would suggest that the obligation to serve a certificate would apply. One could also argue that a contextual and purposive interpretation would lead to the application of the exception in Art. 43(3) Brussels Ibis and allow the enforcement of such an urgent measure without prior service of any certificate.

4 See, in the context of the Brussels Ibis Regulation, Gascon-Inchausti in Guinchard (ed.), Le nouveau Règlement Bruxelles Ibis (2014), 227. 5 Gascon-Inchausti in Guinchard (ed), Le nouveau Règlement Bruxelles Ibis (2014), 232. 6 Dickinson/Lein/Kramer, The Brussels I Regulation Recast (2015), note 13.238. 7 Infra Art. 56 note 5 (Cuniberti). 8 See Recitals 30 and 46.

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IV. Language 8

Art. 55(2) Brussels IIter provides that the person against whom enforcement is sought may request a translation of the decision in order to contest its enforcement and of the certificate delivered pursuant to Art. 47 Brussels IIter in certain languages. The person seeking enforcement does not have to translate the relevant documents if s/he is not requested to do so. The obligation only arises if and when such request is made. Pursuant to Art. 12(2) of the Service Regulation,9 the authority responsible for serving the documents is under the obligation to inform the addressee of his right to refuse service by enclosing with the documents a specific form. As long as no request has been made, service is to be considered as valid, and enforcement can thus be initiated.10 The addressee may refuse to accept the document and request a translation either at the time of service or within two weeks of the time of service by making a written declaration of refusal of acceptance (including by returning the form received under Art. 12(2) of the Service Regulation).11 If the authority responsible for serving the documents failed to provide the relevant information, service is not invalid, but the time period for refusing service has not started: it will when the competent authority has remedied its failure to inform the addressee.12 If a request for translation is made within the applicable time limit, the right to enforce the judgment is thus suspended until a translation has been provided: Art. 55(3) Brussels IIter provides that the person seeking enforcement may not take any enforcement measure and may only take protective measures. 1. Scope of obligation to translate

9

The right to request a translation does not exist in two cases. First, where the relevant decisions were served in one of the relevant languages at an earlier stage of the proceedings,13 the last paragraph of Art. 55(4) Brussels IIter expressly provides that it is not necessary to do it again for the purpose of Art. 55 Brussels IIter. Second, the right to request a translation only exist where service is effectuated in another Member State. The guarantee in Art. 55(2) Brussels IIter does not apply for domestic service, i.e. service of the decision or the certificate in the same Member State. Unlike Art. 43(2) Brussels Ibis, Art. 55(2) Brussels IIter Regulation does not limit the right to request a translation to cases where the judgment debtor is domiciled in a Member State other than the Member State of origin. This limit might have appeared as redundant, as the language in which the decision would be drafted would typically be the official language of the place of residence, and as service would typically be domestic in such cases. It is possible, however, to imagine that service could be made in person in a State other than the State of residence of the addressee, and that different official languages would be used in different parts of a given Member State.

10

The European Court of Justice has limited the scope of the obligation to translate by taking into account the purpose of the service. For documents instituting proceedings, it has held that the purpose was to enable the addressee to assert his rights in legal proceedings in the State of transmission, and that it was therefore unnecessary to translate documents which have a purely evidential function and are not necessary for the purpose of understanding the subject-matter of the claim and the cause of action.14

11

Pursuant to Art. 55(2)(b) Brussels IIter, the right to request translation applies not only to the decision, but also to the certificate issued pursuant to Art. 47 Brussels IIter.15 As the certificate is available 9 Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (hereafter the ‘Service Regulation’). 10 After a reasonable time: supra Art. 55 note 6 (Cuniberti). 11 Service Regulation, Art. 12(3). 12 Case C-519/13, Alpha Bank Cyprus Ltd v Dau Si Senh and Others ECLI:EU:C:2015:603. 13 For instance, because service of the judgment would be the starting point of the time period to lodge an appeal, as in France (Art. 528 of the French Code of Civil Procedure). 14 Case C-14/07, Ingenieurbüro Michael Weiss und Partner GbR v Industrie- und Handelskammer Berlin, ECLI: EU:C:2008:264. 15 On the model of the Brussels Ibis Regulation, Art. 35 of the 2016 Proposal of the Commission for the Brussels IIter Regulation only provided for the translation of the decision. The right to request translation of only one certificate was introduced by the Council in its general approach of 2018.

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on all official languages of the Member States, the scope of the translation is limited to the content of the free text fields of the certificate. Art. 55(2) Brussels IIter does not require, however, that the certificate issued pursuant to Art. 36 Brussels IIter be translated. It is hard to see why Art. 55(1) Brussels IIter requires that the certificate issued pursuant to Art. 36 Brussels IIter, which also contains free text fields describing the rights attributed by the decision, be served on the person on whom enforcement is sought, but not translated.16 2. Admissible languages The person against whom enforcement is sought may only request a translation if the relevant docu- 12 ments are not provided either 1) in a language that that person understands or 2) in the official language of the Member State where he is habitually resident. The concept of language that a given person understands is a factual concept, that the European Court of Justice has refrained from defining, in particular by excluding the use of presumptions,17 but the courts of Member States have often ruled otherwise.18 Official languages, in contrast, are defined by each Member State. Where there are several official languages in a Member State, Art. 55(2) Brussels IIter provides that the document should be served in the official language used in the part of the Member State where the addressee resides or, should there be several used in that place, in any of them. 3. Quality and Costs of Translation Pursuant to Art. 91(4) Brussels IIter, “any translation made for the purposes of Chapters III and IV shall be done by a person qualified to do translations in one of the Member States”. Translations provided for the purpose of Art. 55 Brussels IIter should thus meet this requirement, as it is located in Chapter IV of the Brussels IIter Regulation.

13

Art. 55 Brussels IIter does not address the issue of the costs of the requested translation. Art. 9(2) of the Service Regulation provides that the judgment creditor should bear any costs incurred prior to the transmission of the documents, i.e. at a time when it was still unclear whether the judgment debtor would request a translation. Art. 9(2) Service Regulation further suggests that the competent court will otherwise decide on the liability for such costs, which confirms that, the Regulation being silent in this respect, national law applies.

14

Subsection 2 Suspension of enforcement proceedings and refusal of enforcement (Art. 56–Art. 63)

Article 56 Suspension and refusal 1. The authority competent for enforcement or the court in the Member State of enforcement shall of its own motion or upon application of the person against whom enforcement is sought or, where applicable under national law, of the child concerned suspend the enforcement proceedings where the enforceability of the decision is suspended in the Member State of origin. 2. The authority competent for enforcement or the court in the Member State of enforcement may, upon the application of the person against whom enforcement is sought or, where applic-

16 Authorities competent for enforcement may require a translation of the translatable contents of the free text fields of both certificates: see Arts. 35(3) and 46(2) Brussels IIter. 17 C-384/14, Alta Realitat SL v Erlock Film ApS and Ulrich Thomsen, EU:C:2016:316. 18 See e.g. Landgericht (District Court) Bonn, Germany, 30 November 2010, Case 10 O 502/09, [2015] I.L.Pr. 6; IPRax 2013, 80; First instance court of Malines, Belgium, 11 Sept. 2007, Revue de droit judiciaire et de la preuve 2008, p. 162.

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Art. 56 Brussels IIter Suspension and refusal able under national law, of the child concerned, suspend, in whole or in part, the enforcement proceedings for one of the following reasons: (a) an ordinary appeal against the decision has been lodged in the Member State of origin; (b) the time for an ordinary appeal referred to in point (a) has not yet expired; (c) an application for refusal of enforcement based on Article 41, 50 or 57 has been submitted; (d) the person against whom enforcement is sought has applied in accordance with Article 48 for the withdrawal of a certificate issued pursuant to Article 47. 3. Where the authority competent for enforcement or the court suspends the enforcement proceedings for the reason referred to in point (b) of paragraph 2, it may specify the time within which any appeal is to be lodged. 4. In exceptional cases, the authority competent for enforcement or the court may, upon application of the person against whom enforcement is sought or, where applicable under national law, of the child concerned or of any interested party acting in the best interests of the child, suspend the enforcement proceedings if enforcement would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances. Enforcement shall be resumed as soon as the grave risk of physical or psychological harm ceases to exist. 5. In the cases referred to in paragraph 4, before refusing enforcement under paragraph 6, the authority competent for enforcement or the court shall take appropriate steps to facilitate enforcement in accordance with national law and procedure and the best interests of the child. 6. Where the grave risk referred to in paragraph 4 is of a lasting nature, the authority competent for enforcement or the court, upon application, may refuse the enforcement of the decision. I. Introduction . . . . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . .

3

III. Competent Authorities . . . . . . . . . . . . . IV. Suspension of Enforceability of Foreign Decision . . . . . . . . . . . . . . . . . . . . . .

4 5

V. Challenge against Foreign Decision or Certificate . . . . . . . . . . . . . . . . . . . . .

7

VI. Submission of an Application for Refusal of Enforcement . . . . . . . . . . . . . . . . . . . 9 VII. Grave Risk for the Child . . . . . . . . . . . . 11

I. Introduction 1

Before the abolition of exequatur, it was necessary to obtain a declaration of enforceability in the Member State addressed to start enforcement proceedings. Under the Brussels I system, enforcement of the foreign judgment was also suspended during the time specified for an appeal against the declaration of enforceability and until such appeal had been determined.1 The rule, however, had not been adopted under the Brussels IIbis Regulation, where an appeal against the declaration of enforceability did not, in principle, suspend enforcement.2 The only exception was the possibility to lodge an ordinary appeal against the foreign decision in the State of origin.3

2

The abolition of exequatur has realigned the two instruments. Foreign decisions are immediately enforceable in other Member States. On the model of the Brussels Ibis Regulation, Art. 56 Brussels IIter establishes a procedure for seeking the suspension (and in one extreme case, the refusal) of the enforcement of the foreign decision. The person against whom enforcement is sought may also submit an application of refusal of enforcement,4 which triggers the issue of whether such procedure, and potential appeals or challenges5 suspend the enforcement of the decision.6 1 2 3 4 5 6

Art. 47(3) Brussels I. Magnus/Mankowski, Brussels IIbis Regulation (2nd ed. 2017), Art. 35 note 4 (de Lima Pinheiro). Art. 35 Brussels IIbis. See Art. 58–60 Brussels IIter. See Art. 61–62 Brussels IIter. See Art. 56 note 8 (Cuniberti).

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II. Legislative history Art. 56(1) Brussels IIter is inspired from Art. 44(2) Brussels Ibis, but extends the power of the com- 3 petent authority to act of its own motion. Art. 56(2) and (3) Brussels IIter adapt the rule in Art. 63 Brussels IIter to enforcement proceedings and replace the remedies afforded by Art. 44 Brussels Ibis, which have appeared as ill-suited in the context of the Brussels IIter Regulation.7 Art. 56 (4), (5) and (6) Brussels IIter are novel provisions introducing a new harmonised ground of suspension and refusal of enforcement aimed at protecting the child where enforcement would expose the child to a grave risk of physical or psychological harm.

III. Competent Authorities Art. 56 Brussels IIter grants power to suspend or refuse enforcement to the authority competent for 4 enforcement or the court of the Member State of enforcement. While the reference to the authority competent for enforcement is clear and logical,8 the additional reference to “the court of the Member State of enforcement” without any further clarification contradicts the general policy of the Regulation to inform parties to cross-border disputes relating to parental responsibility about the national authorities competent for applying the Regulation.9 Recital 60 explains that “Where, in addition to authorities competent for enforcement, courts are also mentioned in this Regulation, this should cover cases where, under national law, a body other than a court is the authority competent for enforcement, but certain decisions are reserved to courts, either from the outset or in the form of reviewing the acts of the authority competent for enforcement”. It is submitted that this additional reference should be understood as a reference to courts competent for enforcement as designated under Art. 52 Brussels II ter.

IV. Suspension of Enforceability of Foreign Decision The enforceability of a foreign judgment in the Member State of origin is logically an essential condition for its enforcement in another Member State.10 Should this condition be lacking or disappear, enforcement proceedings should be suspended, in the Member State of origin as in the rest of the European Union. Art. 56(1) Brussels IIter establishes a right to the suspension of enforcement proceedings initiated in another Member State if the enforceability of the judgment is suspended in the Member State of origin. The competent authority for enforcing this right is the competent enforcement authority.11 The use of the word “shall” suggests that, contrary to the remedies contemplated by Art. 56(2) Brussels II ter, the remedy afforded by Art. 56(1) Brussels IIter is not discretionary, but as of right.

5

Unlike the equivalent provision in the Brussels Ibis Regulation, Art. 56(1) Brussels IIter provides that the competent enforcement authority may suspend enforcement not only upon the application of the person against whom enforcement is sought, but also of its own motion. Recital 67 suggests that the rationale was to allow the competent authority to react swiftly to a change of circumstances in the State of origin. From a practical perspective, the power of the competent authority to act ex officio makes it also possible to suspend enforcement upon the request of any person who might request it, and thus makes the issue of standing irrelevant. The competent authority will have to learn about the loss of enforceability of the foreign decision, and this will typically be because his/her attention will have been drawn to this change by an interested party. Recital 67 usefully clarifies that the competent authority is under no obligation to investigate actively about changes in the enforceability of the foreign decision.12

6

7 8 9 10 11 12

See Art. 63 note 3 (Cuniberti). Art. 52 Brussels IIter. See Art. 52, 58, 62 Brussels IIter. See Art. 45, Art. 47(5) Brussels IIter. See above Art. 56 note 4 (Cuniberti). Recital 67 concludes: “if there is no indication that this is the case”. It seems clear that the “indication” will be provided by an interested party.

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Art. 56 Brussels IIter Suspension and refusal

V. Challenge against Foreign Decision or Certificate 7

Art. 56(2) and (3) Brussels IIter adapt the rule in Art. 63 Brussels IIter to the context of enforcement. Under the same grounds available under Art. 63 Brussels IIter to stay the proceedings of refusal of enforcement,13 the person against whom enforcement is sought or the child may apply to seek the suspension of the enforcement proceedings.

8

The comparison of the language of Art. 56(1) and Art. 56(2) Brussels IIter makes it clear that the competent authority may not act of its own motion, and that an application for suspension of the enforcement of the person against whom enforcement is sought is necessary. Art. 56(2) Brussels IIter provides that, where national law allows it, the child concerned may also apply for suspension of enforcement, but the comparison of the language of Art. 56(2) and Art. 56(4) Brussels IIter makes it clear that a person acting in the best interests of the child does not have standing. The extension of the right to seek suspension to the child seems logical, as the child is obviously the first person concerned.

VI. Submission of an Application for Refusal of Enforcement 9

Art. 56(2)(c) Brussels IIter adds a ground for suspending enforcement where an application for refusal of enforcement has been submitted. The rationale of this rule is entirely different from that of the other grounds. The issue is whether applications for refusal of enforcement should suspend enforcement. The answer is that there is no automatic suspension,14 but that the competent authority15 has discretion16 to do so under Art. 56(2)(c) Brussels IIter.

10

While the rationale of the grounds afforded by Art. 56(2)(a) & (b) Brussels IIter is that the decision may be set aside in the State of origin, the rationale of Art. 56(2)(c) Brussels IIter is that the decision may be denied enforcement in the State of enforcement. The focus of the analysis should thus be the grounds available in the State of enforcement for that purpose.17 Unlike Art. 63 Brussels IIter, Art. 56(2) Brussels IIter provides that the suspension could be partial. This difference can be explained by the fact that foreign decisions can be partially enforced.18

VII. Grave Risk for the Child 11

Art. 56(4) Brussels IIter introduces a novel ground for suspending enforcement if enforcement would expose the child to a grave risk of physical or psychological harm which arose after the foreign decision was made. If such risk is not due to temporary impediments, but is of a lasting nature, Art. 56(6) Brussels IIter provides that the competent authority could even refuse enforcement.

12

This new ground is substantive in nature and thus creates an obvious tension with the principle of mutual recognition of decisions and the prohibition to review foreign decisions on the merits.19 This tension is partially resolved not so much by praying that this should happen exceptionally, but rather by the requirement that the risk arose after the decision was given or is the result of a significant change in circumstances. Recital 69 gives the example of a manifest objection of the child voiced after the decision which is so strong that, if disregarded, it would create a grave risk of harm for the child. The foreign decision is thus not reviewed as to its correctness, but updated. In theory, however, this does not justify granting jurisdiction to an authority of the State of enforcement when the court of the State of origin could have been petitioned to update its decision taking into account the new circumstances. From a practical perspective, however, there might be a practical necessity that local 13 14 15 16 17 18 19

See Art. 63 note 4 (Cuniberti). On the additional ground introduced by Art. 56(2)(c), see below VI. As the appeal against the declaration of enforceability entailed under the Brussels I Regulation: see above I. See above Art. 56 note 4 (Cuniberti). As underlined by Recital 67. See Art. 57 Brussels IIter. See Art. 53 Brussels IIter. See Art. 71 Brussels IIter.

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authorities handle the issue, in particular by taking various steps to attempt to implement gradually the decision. The scope of the remedies afforded by Art. 56(4) & (6) Brussels IIter is further limited by insisting that resort to the first should be proportionate and that the second should be subsidiary. Art. 56(4) Brussels II ter, second paragraph, provides that enforcement should immediately resume after the risk ceases to exist. It has been argued that examples might include circumstances that concern one of the parents, such as a new child, a serious illness that renders the custodian unable to take care of the child, detention, or expulsion to another country could also constitute other.20 Art. 56(5) Brussels IIter makes clear that all efforts should be made to facilitate the enforcement of the decision before refusing enforcement under Art. 56 (6) Brussels II ter. Recital 69 gives the example of seeking the assistance of social workers and psychologists to ensure the implementation of the decision. Many scholars fear, however, that this provision will only result in prolonging the dispute.21

13

The comparison of the language of Art. 56(1) and Art. 56(4) Brussels IIter makes it clear that the 14 competent authority may not act of its own motion, and that an application for suspension of the enforcement of the person against whom enforcement is sought is necessary. Art. 56(4) Brussels IIter provides that, where national law allows it, the child concerned or any person acting in the best interests of the child may also apply for suspension of enforcement. The rationale for this extension of the persons having standing seems to be the purpose of the rule, which is to protect the child against a grave risk. Yet, the multiplication of persons having standing increases the risk of various persons (parents, child, child authorities) expressing different views as to the desirability of suspending/refusing enforcement. How non judicial authorities will be able to decide in this context is unclear.

Article 57 Grounds for suspension or refusal of enforcement under national law The grounds for suspension or refusal of enforcement under the law of the Member State of enforcement shall apply in so far as they are not incompatible with the application of Articles 41, 50 and 56.

I. Introduction Art. 57 Brussels IIter regulates the availability of national grounds for suspension or refusal of enforcement under the Regulation. It clarifies that they are available only where they are not incompatible with the grounds provided by the Regulation. Art. 57 Brussels IIter is thus a rule of coordination between European and national enforcement laws.

1

II. Legislative history The existence of Art. 57 Brussels IIter is the consequence of the abolition of the exequatur procedure 2 and its replacement with procedures to suspend or refuse enforcement. It is thus inspired from Art. 41(2) Brussels Ibis. Under the Brussels Ibis Regulation, the rule is only a paragraph of Art. 42. Un20 Honorati, La proposta di revisione del regolamento Bruxelles IIbis: piu’ tutela per i minori e piu’ efficacia nell’esecuzione delle decisioni (2017), 53, Rivista di diritto internazionale privato e processuale, 267; Espinosa Calabuig/Carballo Piñeiro in Pfeiffer/Lobach/Rapp (eds.), Facilitating Cross-Border Family Life – Towards a Common European Understanding (2021), 82. 21 González Beilfuss in Álvarez González et al., Relaciones transfronterizas, globalización y derecho (2020), 397; Rodríguez Pineau (2018), 35, Revista Electrónica de Estudios Internacionales, 30; Espinosa Calabuig/Carballo Piñeiro in Pfeiffer/Lobach/Rapp (eds.), Facilitating Cross-Border Family Life – Towards a Common European Understanding (2021), 82.

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Art. 57 Brussels IIter Grounds for suspension or refusal of enforcement under national law der the Brussels IIter Regulation, the rule became an autonomous article, while the other paragraphs of Art. 42 of the Brussels Ibis Regulation have become Art. 51 of the Brussels IIter Regulation.

III. National Grounds for Suspension or Refusal of Enforcement 3

Art. 57 Brussels IIter recognises that persons resisting enforcement may rely on the grounds for suspension or refusal of enforcement provided for in the domestic law of the Member State addressed, just as a they would in a domestic context. They may thus invoke both the grounds for refusal laid down in the Regulation and those available under the national law of the enforcement State.1 The purpose of the rule is to recognize that the Regulation only governs the private international law dimension of the enforcement of foreign decisions in other Member States. It only affords rules designed to assess whether the decision should be denied enforcement on grounds directly related to its origin and the fact that it was made by a foreign court. By contrast, the Regulation does not regulate other dimensions of enforcement law, which are not related to the foreign origin of the decision and would apply to the enforcement of all domestic judgments. Those specific rules of domestic enforcement law remain applicable, and, as the case may be, affords grounds for refusing or suspending enforcement of the foreign decision.

4

Art. 57 Brussels IIter provides that the grounds for suspension or refusal of enforcement under the law of the Member State addressed only apply in so far as they are not incompatible with the grounds referred to in Arts. 41, 50 and 56 Brussels IIter. Arts. 41 and 50 Brussels IIter lay down the grounds for refusing enforcement, while Art. 56 Brussels IIter provides the grounds for suspending it. The requirement of compatibility excludes all national grounds directly related to the origin of the foreign decision, i.e. national rules of the law of foreign judgments. Arts. 41, 50 and 56 Brussels IIter must be considered as listing exhaustively the grounds of private international law available to challenge the enforcement of a foreign decision. By contrast, the vast majority of the other grounds available in the domestic law of enforcement of the Member States will be compatible with these provisions, because they will not be related to the origin of the judgment. Recital 63 explains that such grounds affording the right to resist enforcement under the domestic law of enforcement of the Member States should include “challenges based on formal errors under national law in an act of enforcement or on the assertion that the action required by the decision has already been performed or has become impossible, for instance, in case of force majeure, serious illness of the person to whom the child is to be handed over, the imprisonment or death of that person, the fact that the Member State to which the child is to be returned has turned into a war zone after the decision was given, or the refusal of enforcement of a decision which under the law of the Member State where enforcement is sought does not have any enforceable content and cannot be adjusted to this effect”. It cannot be excluded, however, that certain of these domestic grounds might indirectly impair the effectiveness of the scheme of the Regulation: in such a case, they might be found to be incompatible with Arts. 41, 50 and 56 Vgrounds. Under the 1968 Brussels Convention, the European Court of Justice has insisted that “the application, for the purposes of the execution of a judgment, of the procedural rules of the State in which enforcement is sought may not impair the effectiveness of the scheme of the convention [now Regulation] as regards enforcement orders”.2

5

Art. 57 Brussels IIter does not require that all grounds (whether under Arts. 41, 50 and 56 Brussels IIter or domestic law) be available in the same procedure before the same court.3 It will therefore be open to Member States either to establish separate procedures for the purpose of allowing judgment debtors to resist enforcement on each series of grounds, or to establish one single procedure for both. As the verification of the existence of the grounds referred to in Arts. 41, 50 and 56 Brussels IIter is postponed to the enforcement stage, some Member States might be tempted to grant jurisdiction in this regard to the court which has jurisdiction to entertain challenges to enforcement under domestic law.

1 See Recital 63. 2 See Horst Ludwig Martin Hoffmann v. Adelheid Krieg, (C-145/86) (1988) ECR 645 para. 29. 3 See however Recital 63, suggesting that European and national grounds be raised “within one procedure”.

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Article 58 Jurisdiction of authorities or courts competent for refusal of enforcement 1. The application for refusal of enforcement based on Article 39 shall be submitted to the court communicated by each Member State to the Commission pursuant to Article 103. The application for refusal of enforcement based on other grounds set out in or permitted by this Regulation shall be submitted to the authority or the court communicated by each Member State to the Commission pursuant to Article 103. 2. The local jurisdiction of the authority or court communicated by each Member State to the Commission pursuant to Article 103 shall be determined by the law of the Member State in which proceedings in accordance with paragraph 1 of this Article are brought. I. Introduction . . . . . . . . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . . .

2

III. Scope of jurisdiction of the designated authorities . . . . . . . . . . . . . . . . . . . . .

3

IV. Competent courts or authorities . . . . . . . .

8

I. Introduction Art. 58 Brussels IIter is part of a project of the EU lawmaker to make accessible to parties to crossborder disputes relating to parental responsibility certain information relating to the national authorities competent for applying the Regulation. Art. 58 Brussels IIter is concerned with authorities or courts competent for entertaining applications for refusal of enforcement. Art. 52 Brussels IIter is concerned with authorities or courts competent for enforcing decisions.1 The relevant information is to be communicated to the European Commission, which will then make it publicly available by all appropriate means, including publication on the European e-Justice Portal.

1

II. Legislative history The existence of Art. 58 Brussels IIter is the consequence of the abolition of the exequatur procedure 2 and its replacement with procedures to suspend or refuse enforcement. It is thus inspired from Art. 47(1) Brussels Ibis. Under the Brussels Ibis Regulation, the rule is only a paragraph of Art. 47 Brussels Ibis. Under the Brussels IIter Regulation, the rule became an autonomous article, while the other paragraphs of Art. 47 Brussels Ibis have become Art. 59 Brussels II ter. The main reason for establishing a separate provision in the Brussels IIter Regulation seems to be the willingness of the EU lawmaker to distinguish between the enforcement of privileged and non privileged decisions.2

III. Scope of jurisdiction of the designated authorities Art. 58 Brussels IIter distinguishes between applications for refusal of enforcement based on Art. 39 Brussels IIter and applications for refusal of enforcement based on other grounds permitted under the Regulation. The reference to Art. 39 Brussels IIter is unfortunate, as it applies to recognition of decisions. Art. 58 Brussels IIter should have referred to Art. 41 Brussels IIter, which lays down grounds for refusing enforcement of decisions. The other grounds for permitting refusal of enforcement appear in Art. 50 Brussels IIter.

1 And for suspending enforcement: see below Art. 58 note 6 (Cuniberti). 2 See below Art. 58 note 4 (Cuniberti).

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3

Art. 58 Brussels IIter Jurisdiction of authorities or courts competent for refusal of enforcement 4

It seems that the rationale for distinguishing between Arts. 39 (i.e. Art. 41) and 50 Brussels IIter is twofold. First, it is believed and hoped that the ground for refusing enforcement to privileged decisions will be easy to implement, and barely used. As a consequence, Art. 58 Brussels IIter suggests that Member States may entrust the function of entertaining applications to refuse enforcement on the ground of Art. 50 Brussels IIter to non judicial authorities, and thus make the process more expedient. Secondly, the abolition of the exequatur procedure for non privileged decisions means that applications for refusal of enforcement will now require actual verification of the grounds listed in Art. 41 Brussels IIter.3 The procedure for entertaining applications for refusal of enforcement is thus essentially judicial: it does not seem conceivable to entrust the function of entertaining an application for refusal of enforcement to a non judicial authority. While declarations of enforceability could be granted by non judicial authorities, Art. 58 Brussels IIter requires that applications for refusal of enforcement under Art. 39 (i.e. Art. 41) Brussels IIter be entertained by a “court”. It seems, however, that the vast majority of Member States have decided not to distinguish between Arts. 39 (i.e. Art. 41) and 50 Brussels IIter and have only designated one (judicial) authority for both purposes (e.g., France, Italy, Spain, Sweden). A few Member States have distinguished, but have designated different courts (e.g. Poland). Lithuania has designated a court for applications based on Art. 39 Brussels IIter and bailiffs for applications based on other grounds set out in national law permitted by the Brussels IIter Regulation.

5

Logically, Art. 58(2) Brussels IIter provides that the local jurisdiction of the competent authority (whether judicial or non judicial) is to be determined by the national law of the State of enforcement. It will therefore be for national law to determine which court in the Member State of enforcement, or which other authority, should be seised of an application for refusal of enforcement. Some Member States have communicated these jurisdictional rules to the European Commission which has published them on the European e-Justice Portal.

6

Art. 58 Brussels IIter does not apply to applications for suspension of enforcement. Art. 56 Brussels IIter provides that these applications are to entertained by authorities competent for enforcement.

7

Art. 58 Brussels IIter is silent on applications for refusal or suspension of enforcement under national law, because the Regulation should, in principle, leave untouched the national procedural rules governing these applications (within the limits laid down by Art. 57 Brussels IIter). However, Recital 63 of the Preamble encourages Member States to enable applicants “to raise, within one procedure, in addition to the grounds for refusal provided for in this Regulation, the grounds for refusal available under national law.” In Member States where different courts had jurisdiction to declare enforceable foreign judgments and to control the legality of enforcement measures, this might result in a transfer of the jurisdiction to entertain applications for refusal of enforcement (at least under Art. 41 Brussels IIter) to courts having jurisdiction to control the legality of enforcement measures.

IV. Competent courts or authorities 8

Pursuant to Art. 103(c) Brussels IIter, the Member States were expected to notify the Commission of the courts (and authorities) competent to entertain applications for refusal of enforcement pursuant to Art. 58(2) Brussels IIter by 21 April 2021. The list of the courts communicated by the Member States is available on the e-justice portal of the Commission.4

3 In contrast, under the previous regime, a declaration of enforceability was granted by an authority of the Member State addressed without verifying that no ground for denying enforcement to the judgment existed. 4 European e-Justice Portal – Brussels IIb Regulation – Matrimonial matters and matters of parental responsibility (recast) (europa.eu).

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Chapter IV: Recognition and Enforcement

Art. 59 Brussels IIter

Article 59 Application for refusal of enforcement 1. The procedure for making an application for refusal of enforcement shall, in so far as it is not covered by this Regulation, be governed by the law of the Member State of enforcement. 2. The applicant shall provide the authority competent for enforcement or the court with a copy of the decision and, where applicable and possible, the appropriate certificate issued pursuant to Article 36 or 47. 3. The authority competent for enforcement or the court may, where necessary, require the applicant to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the appropriate certificate issued pursuant to Article 36 or 47 which specifies the obligation to be enforced. 4. If the authority competent for enforcement or the court is unable to proceed without a translation or transliteration of the decision, it may require the applicant to provide such a translation or transliteration in accordance with Article 91. 5. The authority competent for enforcement or the court may dispense with the production of the documents referred to in paragraph 2 if: (a) it already possesses them; or (b) it considers it unreasonable to require the applicant to provide them. In the case referred to in point (b) of the first subparagraph, the authority competent for enforcement or the court may require the other party to provide those documents. 6. The party seeking the refusal of enforcement of a decision given in another Member State shall not be required to have a postal address in the Member State of enforcement. That party shall be required to have an authorised representative in the Member State of enforcement only if such a representative is mandatory under the law of the Member State of enforcement irrespective of the nationality of the parties.

I. Introduction The main purpose of Art. 59 Brussels IIter is to lay down a few uniform rules regarding the documents to be provided with applications for refusal of enforcement. Art. 59(1) Brussels IIter provides that such applications are otherwise governed by national law, except for rules discriminating against foreign nationals, an example of which is given in Art. 59(6) Brussels IIter.

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II. Legislative history Art. 59 Brussels IIter is essentially inspired from Art. 47 Brussels Ibis, except for Art. 47(1) Brussels Ibis which has become a separate provision in the Brussels IIter Regulation (Art. 58 Brussels IIter).1 Art. 59(1) Brussels IIter replicates Art. 47(2) Brussels Ibis with some minor formal changes, which do not seem to change the substance of the rules.

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Art. 59(2), (3), (4) and (5) Brussels IIter breaks Art. 47(3) Brussels Ibis into four separate paragraphs, 3 which not only improves the accessibility of the provisions, but also enable the European lawmaker to clarify their respective scope of application.2 Most of the rules are replicated, but a significant change is that, under Art. 59(2) and (3) Brussels IIter, the applicant should not only provide (and, as the case may be, translate) a copy of the relevant decision, but also, “where applicable and possible”, of certain parts of the appropriate certificate. Art. 59(6) Brussels IIter replicates Art. 47(4) Brussels Ibis with some minor stylistic changes, but also one change of substance. Art. 59(6) Brussels IIter defines discrimination more narrowly, by tolerating 1 Supra Art. 58 note 2 (Cuniberti). 2 Infra Art. 59 note 11 (Cuniberti).

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Art. 59 Brussels IIter Application for refusal of enforcement rules imposing a representative “irrespective of the nationality of the parties”, while Art. 47(4) Brussels Ibis Regulation requires it be “irrespective of the nationality or the domicile of the parties”.

III. Procedure governed by lex auctoris 5

Art. 59(1) Brussels IIter logically provides that the procedure for refusal of enforcement shall be governed by national law in so far as it is not covered by the Regulation. As the Regulation provides very few rules in this respect, procedure is essentially governed by the applicable national law.

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The application of the law of the forum (lex fori) to procedure is a well known principle in private international law. One of the rationales of the principle of the principle is more generally that public authorities must operate in accordance with the rules of the State which has established them. Whether judicial or non judicial, public authorities must therefore operate in accordance with the rules of the State which has established. Art. 59(1) Brussels IIter provides that the national law governing the procedure for refusal of enforcement is the law of the Member State of enforcement. As the competent authority or court will necessarily operate within the jurisdiction of the State which has established it, it will apply its own law (lex auctoris).

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The Brussels IIbis Regulation provided uniform rules on a number of issues which are now left to local civil procedure, such as the time period (including its starting point) within which a declaration of enforceability could be challenged.3 The application of national law on these issues will decrease the uniformity of application of the new regulation.

IV. Documents accompanying the application 8

Contrary to the judgment creditor, who must provide a copy of the decision which satisfies the conditions necessary to establish its authenticity to the enforcement authority,4 Art. 59(2) Brussels IIter provides that the applicant for a refusal of enforcement can produce a mere “copy of the decision”. Furthermore, pursuant to Art. 59(2) Brussels IIter the court may dispense the applicant from producing even a copy of the decision if it already has one, but also if it would be unreasonable to require the applicant to provide it. While such leniency can be understood with regard translation, it is much harder to understand with respect to the judgment itself, which is to be the subject-matter of the procedure for refusal of enforcement. If the other party has a copy of the decision, the competent authority may require that this party provide the decision.5

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Unlike the Brussels Ibis Regulation, Art. 59(2) Brussels IIter also requires that the applicant, “where applicable and possible”, provide a copy of the appropriate certificate. The proposition that the applicant should be required (“shall provide”) to supply a document only “where (…) possible” seems to be a contradiction in terms. It is also unclear why it could be useful to provide the certificate in addition to the decision for the purpose of assessing whether a ground for refusing enforcement exists.6 The provision of the certificate might be useful, however, if the existence of a ground can be deduced from the certificate alone. In such a case scenario, the applicant may want to argue that, pursuant to Art. 59(3) Brussels IIter,7 s/he needs not provide a translation of the decision (though s/he needs to supply the decision itself), but no translation at all or only a translation of the relevant parts of the certificate.

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Art. 33(5) Brussels IIbis. See Art. 35 and 46 Brussels IIter. Art. 59(5) Brussels IIter. Certain statements might be used as preliminary evidence of certain facts, such as the date of service of the decision. 7 Infra Art. 59 note 10 (Cuniberti).

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Art. 60 Brussels IIter

V. Translation Art. 59(3) & (4) Brussels IIter empower the competent authority to request a translation of the rele- 10 vant documents. The purpose of the rule is not to protect the parties,8 but rather to allow the competent authority to entertain the application. The language of Art. 59(3) & (4) Brussels IIter shows, however, that the goal of the European lawmaker was to avoid as much as possible the provision of such translation and the associated costs. Pursuant to Art. 59(3) Brussels IIter, the competent authority should only request a translation “where necessary”, and it should first consider whether a translation or transliteration of the relevant certificate (if the applicant provided it)9 would suffice. Pursuant to Art. 59(4) Brussels IIter, it is only if the authority could not proceed without a translation of the relevant certificate that it may request a translation of the decision itself. Translation of the decision is thus subsidiary. As the rationale of the rule is to limit translation to what is strictly necessary, the competent authority should be able to request a partial translation of the decision. If a need for translation exists, the language of Art. 59(3) and (4) Brussels IIter make clear that the burden of providing it lies with the applicant. Under Art. 47(3) Brussels Ibis, the scope of the power of the court to shift the burden of the production of the documents to the other party could be interpreted as applying both to the production of the documents and their translation. In contrast, the new structure and language of Art. 59(5) Brussels IIter suppress the ambiguity and clarify that the power of the competent authority to dispense the applicant with the production of documents does not extend to any translation that the competent authority may require.

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As the purpose of the rule is to allow the competent authority to entertain the application, the translation should be made in the official language, or one of the official languages, of the Member State of enforcement,10 or in any other official language of a Member State that the Member State of enforcement identified under Art. 103(i) Brussels IIter.11 The translation should be made by a person qualified to do so in one of the Member States.12

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VI. Postal address and authorized representative Art. 59(6) Brussels IIter abolishes the requirement of either providing a postal address or appointing a local authorized representative in the Member State of enforcement.13 Art. 59(6) Brussels IIter also prevails on any contrary national rules which might require that foreign litigants give a local postal address or hire a local representative.14

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Article 60 Expeditious procedures The authority competent for enforcement or the court shall act without undue delay in procedures concerning the application for refusal of enforcement. Art. 60 Brussels IIter encourages authorities entertaining applications for refusal of enforcement to decide without delay. It is inspired by Art. 48 Brussels Ibis, but the origin of the provision is to be found in Art. 45(1) Brussels I Regulation,1 which provided that courts petitioned to rule on an appeal against a declaration of enforceability were similarly to “give its decision without delay”. An im8 9 10 11 12 13 14 1

Such purpose is served by Art. 55 Brussels IIter. Supra Art. 59 note 9 (Cuniberti). See Art. 91(1) Brussels IIter. See Art. 91(2) Brussels IIter. See Art. 91(4) Brussels IIter. Supra Art. 51 note 11 (Cuniberti). Supra Art. 51 note 12 (Cuniberti). And before in Art. 34 of the Brussels Convention.

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Art. 61 Brussels IIter Challenge or appeal portant difference between the former and the new regimes, however, is that the procedure used to delay enforcement of the foreign judgment, while it should not under the new regime.2 Art. 60 Brussels IIter might have lost most of its significance, if it ever had any. 2

The time to entertain appeals against declarations of enforceability varied significantly between the different Member States under the former regime. It is hard to see why this would change under Art. 60 Brussels IIter, although non judicial enforcement authorities might act more quickly in certain Member States. Time to give decisions is conditional upon a variety of factors, the most important of which being the resources of the relevant authorities and, in particular, of the relevant courts. It is unlikely that States will dedicate more resources to their judiciary as a consequence of the existence of Art. 60 Brussels IIter.3

Article 61 Challenge or appeal 1. Either party may challenge or appeal against a decision on the application for refusal of enforcement. 2. The challenge or appeal shall be lodged with the authority or court communicated by the Member State of enforcement to the Commission pursuant to Article 103 as the authority or court with which such a challenge or appeal is to be lodged. I. Introduction . . . . . . . . . . . . . . . . . . . .

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IV. Competent Authority . . . . . . . . . . . . . .

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II. Legislative history . . . . . . . . . . . . . . . . . III. Standing . . . . . . . . . . . . . . . . . . . . . .

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V. Procedure . . . . . . . . . . . . . . . . . . . . .

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I. Introduction 1

Art. 61(1) Brussels IIter establishes a right to challenge decisions on applications for refusal of enforcement. It distinguishes between appeal and challenge because the authority competent to entertain applications to refuse enforcement under Art. 50 Brussels IIter are not necessary courts.1 Art. 61(2) Brussels IIter is part of a project of the EU lawmaker to make accessible to parties to cross-border disputes relating to parental responsibility certain information relating to the national authorities competent for applying the Regulation.

II. Legislative history 2

Art. 61 Brussels IIter is inspired from Art. 49 Brussels Ibis. The only substantive variation is that, under the Brussels Ibis Regulation, the decision on the application for refusal is necessarily made by a judicial authority, which explains why Art. 49 Brussels Ibis establishes a right to appeal before a higher court. Under Art. 61 Brussels IIter, the decision could be made by a non judicial authority, and could be challenged before another non judicial authority. Under Brussels IIbis, Art. 33 regulated appeals against decisions ruling on applications for a declaration of enforceability and provided more uniform rules.2

2 See Art. 63 Brussels IIter. 3 Indeed, the rule, and the incentive it might give to Member States to allocate more resources to the relevant courts, has existed for more than 50 years. 1 See Art. 58 Brussels IIter. 2 Infra Art. 61 note 9 (Cuniberti).

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Art. 61 Brussels IIter

III. Standing Art. 61(1) Brussels IIter provides that either party has standing to lodge an appeal or challenge a decision on an application for refusal of enforcement. The regulation treats both parties equally in this regard and does not introduce any specific requirement depending on whether the appeal is lodged or the challenge initiated by the party who sought enforcement or the party against whom enforcement was sought.

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In the context of the 1968 Brussels Convention, the European Court of Justice held that interested 4 third parties (for instance creditors of the person against who enforcement is sought)3 had no standing to challenge an enforcement order on the basis of the domestic law of the enforcement State.4 The rationale behind this position was that the Convention established “an enforcement procedure which [constituted] an autonomous and complete system, including the matter of appeals”.5 The coherence of the system excluded “procedures whereby interested third parties [might have challenged] an enforcement order under domestic law”.6 However, the Court also highlighted that “the Convention merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself ”.7 Since execution is governed by the law of the enforcement State, interested third parties could still rely on the domestic law of that State to challenge execution measures. The Brussels IIter Regulation has abolished the “enforcement procedure” which applied under the Brussels Convention. More importantly, it has repealed a number of provisions which governed the appeal of first instance decisions ruling on the enforceability of the foreign judgment.8 As a result, it is unclear whether Art. 61 Brussels IIter should be regarded as being as “complete” as Art. 36 of the Brussels Convention and Art. 33 Brussels IIbis.

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It is also unclear whether the distinction offered by the European Court of Justice between procedure, including matters of appeal, and execution9 remains, as the verification of the existence of grounds referred to in Arts. 41 and 50 Brussels IIter has now been postponed to the enforcement stage. It is submitted that Art. 61 Brussels IIter will govern appeals made on the ground of a wrongful application of Arts. 41 and 50 Brussels IIter and exclude any contrary rule of national law, including rules belonging to the national law of enforcement of the relevant state. By contrast, appeals made on the ground of wrongful application of national grounds of refusal of enforcement10 will be entirely governed by the national rules of the forum.

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IV. Competent Authority Pursuant to Art. 103(c) Brussels IIter, the Member States were expected to notify the Commission of the authorities competent to entertain challenges or appeals against decisions on application for refusal of enforcement pursuant to Art. 61(2) Brussels IIter by 21 April 2021.The list of the authorities communicated by the Member States is available on the e-justice portal of the Commission.11

3 See Draka NK Cables Ltd. et al. v. Omnipol Ltd., (C-167/08) (2009) ECR I-3477, I-3488. 4 Deutsche Genossenschaftsbank v. SA Brasserie du Pêcheur, (C-148/84) (1985) ECR 1981 para. 17; Volker Sonntag v. Hans Waidmann, (C-172/91) (1993) ECR I-1963, I-2000, para. 33; Draka NK Cables, paras. 27–30. 5 Deutsche Genossenschaftsbank para. 17. 6 Deutsche Genossenschaftsbank para. 17. 7 Deutsche Genossenschaftsbank para. 18; also, Draka NK Cables paras. 29. 8 Infra Art. 61 note 9 (Cuniberti). 9 Supra Art. 61 note 4 (Cuniberti). 10 Supra Art. 57 note 3 (Cuniberti). 11 European e-Justice Portal – Brussels IIb Regulation – Matrimonial matters and matters of parental responsibility (recast) (europa.eu).

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Art. 62 Brussels IIter Further challenge or appeal

V. Procedure 8

In accordance with the principle of the procedural autonomy of the Member States, it is for each Member State to determine the rules of the appeal or challenge procedure.12 However, those detailed procedural rules should be no less favourable than those governing similar domestic actions (principle of equivalence) and should not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).13 For those purposes, they should guarantee that that court or authority has power to consider all the questions of fact and law that are relevant to the case before it.14 The Finnish rule establishing an intermediate procedure of leave for further consideration of the appeal is compatible with those principles.15

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Contrary to Art. 33 Brussels II bis, Art. 61 Brussels IIter does not provide any guidance with respect to the time limit within which a decision may be challenged, and does not require that the challenge be examined in accordance with the rules of the procedure in contradictory matters. These issues are now left to national law, which will decrease the uniformity of application of the new regulation.

Article 62 Further challenge or appeal A decision given on the challenge or appeal may only be contested by a challenge or appeal where the courts with which any further challenge or appeal is to be lodged have been communicated by the Member State concerned to the Commission pursuant to Article 103. I. Introduction . . . . . . . . . . . . . . . . . . .

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II. Legislative history . . . . . . . . . . . . . . . .

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III. Competent Court . . . . . . . . . . . . . . . . IV. Characteristics of the final appeal . . . . . . 1. Mere option for the Member States . . . . . .

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2. Appeal/challenge against a judgment on a first appeal/challenge . . . . . . . . . . . . . . . . . 3. No limitation to points of law . . . . . . . . . 4. Standing of interested third parties . . . . . . . 5. Procedure . . . . . . . . . . . . . . . . . . . . .

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I. Introduction 1

Art. 62 Brussels IIter provides for a second and final level of appeal or challenge against the decision issued on the basis of Art. 61 Brussels IIter.

II. Legislative history 2

Art. 62 Brussels IIter is inspired from Art. 50 Brussels Ibis. The only substantive variation is that, under the Brussels Ibis Regulation, the appeal decision on the application for refusal is necessarily made by a judicial authority, which explains why Art. 50 Brussels Ibis regulates a right to appeal before a

12 See, in the context of the Brussels Ibis Regulation, ML v. Aktiva Finants OÜ (C-433/18), ECLI:EU:C:2019: 1074. 13 Aktiva Finants OÜ para. 29. 14 Aktiva Finants OÜ para. 36. 15 Aktiva Finants OÜ: the Finnish rule establishes a procedure granting leave for further consideration in which, first, a court of appeal rules on the grant of that leave on the basis of the decision delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, on the basis of other information in the file and, second, leave for further consideration of the appeal must be granted, in particular, if there are doubts as to the accuracy of the decision in question, if it is not possible to assess the accuracy of that decision without granting leave for further consideration of the appeal or if there is another significant reason to grant leave for further consideration of the appeal.

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Art. 62 Brussels IIter

higher court. Under Art. 62 Brussels IIter, the appeal decision could be made by a non judicial authority, and could thus be challengeable rather than appealable, though necessarily before a court.

III. Competent Court Pursuant to Art. 103(c) Brussels IIter, the Member States were expected to notify the Commission of the courts competent to entertain a further challenge against decisions on applications for refusal of enforcement pursuant to Art. 62 Brussels IIter by 21 April 2021.The list of the authorities communicated by the Member States is available on the e-justice portal of the Commission.1

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IV. Characteristics of the final appeal 1. Mere option for the Member States The wording of Art. 62 Brussels IIter implies that the establishment of a second and final level of ap- 4 peal is not compulsory but optional for the Member States.2 Under the Brussels Ibis Regulation, only Croatia, Ireland and Latvia availed themselves of this possibility and communicated that no final appeal is available to litigants on their territory.3 The Member States have not made the same declarations under the Brussels IIter Regulation, however. A number of States have communicated that a challenge under Art. 62 Brussels IIter is only available in limited circumstances (Ireland, Croatia). States which have communicated that no legal remedy is available under Art. 62 Brussels IIter include Cyprus and Malta (though with one exception). The optional character of the establishment of a second and final level of appeal excludes the existence of a right to a second appeal in general and the right to appeal to a different court in particular. The designation of the same court for the purposes of Art. 61 and Art. 62 Brussels IIter would thus be compliant with Art. 62 Brussels IIter. France, for instance, has designated the same judicial authority for the purpose of Arts. 58, 61 and 62 Brussels IIter.

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2. Appeal/challenge against a judgment on a first appeal/challenge Art. 62 Brussels IIter makes it clear that the final appeal or challenge is available only against a decision given on an Art. 61 Brussels IIter appeal or challenge. Under Art. 37(2) Brussels Convention, the European Court of Justice had refused to extend the appeal afforded under this provision “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”.4 The scope of Art. 62 Brussels IIter is limited to appeals or challenges against decisions made under Art. 61 Brussels IIter.

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3. No limitation to points of law Unlike Art. 37(2) Brussels Convention and Annex IV of the Brussels I Regulation, Art. 62 Brussels IIter does not provide for any limit of the final appeal or challenge to points of law. The scope of the appeal will therefore be determined by national law. Under the Brussels IIter Regulation, however, many Member States have designated a court which only hears appeals on points of law, such as courts of cassation.

1 European e-Justice Portal – Brussels IIb Regulation – Matrimonial matters and matters of parental responsibility (recast) (europa.eu). 2 Schramm, Yb. PIL 15 (2013/2014), p. 168; Beraudo, J.Cl. Intern., fasc. 633, no. 197. 3 Magnus/Mankowski/Cuniberti, Brussels Ibis Regulation (2022), Art. 50 note 3. 4 Calzaturificio Brennero s. a. s. v. Wendel GmbH Schuhproduktion International, (C-258/83) (1984) ECR 3971 para. 15; on Art. 44 of the Brussels I Regulation, see Magnus/Mankowski/Kerameus, Brussels I Regulation, (2011), Art. 44 note 5.

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Art. 63 Brussels IIter Stay of proceedings 4. Standing of interested third parties 8

The status of interested third parties under Art. 62 Brussels IIter will logically be the same as under Art. 61 Brussels IIter.5 The rationale underlying the limitation of standing to parties to the first instance procedure was expressly extended to the final appeal procedure by the European Court of Justice under the Brussels Convention.6 5. Procedure

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The appeal procedure before the designated courts will be governed by the law of the forum. Art. 103(e) Brussels IIter requires that each Member State communicate the redress procedure applicable under Art. 62 Brussels IIter. As for the procedure for appeal or challenge under Art. 61 Brussels IIter, the principle of equivalence applies and the domestic rules should be no less favourable than domestic ones. However, the optional character of the appeal procedure contemplated by Art. 62 Brussels IIter excludes the application of the principle of effectiveness.7

Article 63 Stay of proceedings 1. The authority competent for enforcement or the court to which an application for refusal of enforcement is submitted or which hears an appeal lodged under Article 61 or 62 may stay the proceedings for one of the following reasons: (a) an ordinary appeal against the decision has been lodged in the Member State of origin; (b) the time for an ordinary appeal referred to in point (a) has not yet expired; or (c) the person against whom enforcement is sought has applied for the withdrawal in accordance with Article 48 of a certificate issued pursuant to Article 47. 2. Where the authority competent for enforcement or court stays the proceedings for the reason referred to in point (b) of paragraph 1, it may specify the time within which an appeal is to be lodged. I. Introduction . . . . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . III. Power to stay proceedings . . . . . . . . 1. Ordinary Appeal in the Member State of Origin . . . . . . . . . . . . . . . . . . . . a) Concept of Ordinary Appeal . . . . .

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b) Exercise of discretion to grant stay . . . 2. Withdrawal of Certificate . . . . . . . . . . 3. Procedure . . . . . . . . . . . . . . . . . . . IV. Particularity of the status of Ireland and Cyprus . . . . . . . . . . . . . . . . . . . . .

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I. Introduction 1

Art. 63 Brussels IIter establishes a right to seek a stay of proceedings of refusal of enforcement initiated in the Member State of enforcement if the foreign decision or the certificate which was issued by the foreign, is challenged in the Member State of origin. The rationale is to avoid any damage that would result from its enforcement in the Member State addressed if the foreign decision is eventually set aside in its Member State of origin and thus to stay the proceedings until it is clear whether the foreign judgment becomes res judicata.1. Art. 63 Brussels IIter is not concerned with the suspension of the enforcement per se, which is regulated by Art. 56 Brussels IIter. 5 6 7 1

On the standing under Art. 61 Brussels IIter, see supra Art. 61 notes 3–6 (Cuniberti). Volker Sonntag v. Hans Waidmann, (C-172/91) (1993) ECR I-1963, I-1999 para. 35. Supra Art. 61 note 8 (Cuniberti). B. J. van Dalfsen and others v. B. van Loon and T. Berendsen, (C-183/90) (1991) ECR I-4743 para. 29, in the context of the Brussels Convention.

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Art. 63 Brussels IIter

II. Legislative history Art. 63 Brussels IIter is inspired by Art. 51 Brussels Ibis. A similar provision could be found in Art. 35 Brussels IIbis, before the full abolition of exequatur under the Brussels IIter Regulation. The provision clarifying the meaning of the concept of ‘ordinary appeal’ for Member States belonging to the common law tradition, which appears in Art. 51(2) Brussels Ibis, has been transferred in an autonomous provision in the Brussels IIter Regulation (Art. 72).2 A novel ground for staying proceedings was introduced in Art. 63(1)(c) Brussels IIter.

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Another innovation of the Brussels IIter Regulation is that the two paragraphs of Art. 63 Brussels IIter are duplicated in Art. 56(2) and (3) Brussels IIter. The scope of the two provisions is different, however, as Art. 56 Brussels IIter is concerned with enforcement proceedings, while Art. 63 Brussels IIter is concerned with the proceedings of refusal of enforcement. The reason for this duplication seems to be that most of the remedies afforded in Art. 44 Brussels Ibis have appeared to be ill-suited to the subject-matter of the Brussels II Regulation, rights related to children, and that suspension of the enforcement appeared as the only suitable remedy.

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III. Power to stay proceedings Art. 63 Brussels IIter applies to proceedings to refuse enforcement initiated under Art. 59 Brussels II- 4 ter. It grants power to stay the proceedings to refuse enforcement to the enforcement authority or court3 to which an application for refusal of enforcement was submitted, or to the enforcement authority or court competent to entertain an appeal against such decisions.4 Art. 63(1) Brussels IIter identifies three grounds on which the competent authority may stay the enforcement of the foreign decision. The language of Art. 63 Brussels IIter makes clear (‘one of the following reasons’) that the list is limitative.

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While the language of Art. 63 Brussels IIter might have suggested that the competent authorities of the Member State addressed have the power to grant a stay irrespective of any application to that effect, it seems reasonable to assume that the stay must be requested by the party against whom enforcement is sought, and that the competent authority may not grant it on its own motion. Under Art. 56 Brussels IIter, competent authorities may only suspend enforcement on their own motion if the enforceability of the decision is suspended, but an application is required to apply for suspension of enforcement under the grounds listed in Art. 63 Brussels IIter.

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1. Ordinary Appeal in the Member State of Origin As previous instruments, Art. 63(1)(a) and (b) Brussels IIter first provide that the fact that an ordin- 7 ary appeal was lodged, or that an ordinary appeal could still be lodged, are admissible reasons. The existence, or the possibility to lodge an appeal other than ordinary is thus not a ground under Art. 63 Brussels IIter. a) Concept of Ordinary Appeal While the concept of “ordinary appeal” is not defined by the Regulation, it was already used in the 8 Brussels Convention and has been given an autonomous definition by the European Court of Justice which, it is submitted, is still valid, including under the Brussels II instruments.5 According to the Court, the rationale of the provision is “to enable [the court of the State of enforcement] to stay the proceedings whenever reasonable doubt arises with regard to the fate of the decision in the State in which it was given”.6 The Court thus requires that the appeal (1) “may lead to the annulment or 2 3 4 5 6

See below Art. 63 note 19 (Cuniberti). See Art. 58 Brussels IIter. See Art. 61 and 62 Brussels IIter. Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2017), Art. 35 note 7. Industrial Diamond Supplies v. Luigi Riva, (C-43/77) (1977) ECR 2175 para. 33.

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Art. 63 Brussels IIter Stay of proceedings amendment” of the foreign judgment,7 (2) “forms part of a normal course of an action [and as such] constitutes a procedural development which any party must reasonably expect”8 and (3) is “bound by the law to a specific period of time which starts to run by virtue of the actual decision whose enforcement is sought”.9 9

As a consequence, “appeals which are dependent either upon events which were unforeseeable at the date of the original judgment or upon the action taken by persons who are extraneous to the case, and who are not bound by the period for entering an appeal which starts to run from the date of the original judgment”10 are not ordinary appeals. The French “recours en révision”11 and the German “Wiederaufnahmeklage”12 may be cited as illustrations.

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Whether the enforceability of the foreign judgment is affected by the appeal is irrelevant,13 as is also the question of whether the appeal is of right or subject to some requirement.14 Likewise, the characterisation of the appeal in its legal order of origin is of no consequence since the definition adopted is autonomous. As a consequence, appeals of cassation, which are traditionally characterised as extraordinary in Belgium, France and Luxembourg, will still be considered as ordinary appeals in the sense of Art. 63 Brussels IIter.15

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Finally, proceedings abroad which may not result in the annulment or amendment of the foreign judgments are not ordinary appeals in the meaning of Art. 63 Brussels IIter. Actions relating to the enforcement of the judgment abroad are irrelevant.16 An application to the European Court of Human Rights would also not qualify,17 as they do not directly impact the validity of the judgments of the contracting states. b) Exercise of discretion to grant stay

12

The wording of Art. 63 Brussels IIter clearly indicates that the competent authorities of the Member State addressed may stay proceedings whenever the foreign decision to be enforced has been challenged in its Member State of origin, but are under no obligation to do so. Art. 63 Brussels IIter does not give guidance as to how this discretion should be exercised. However, in the context of the 1968 Brussels Convention, the European Court of Justice ruled that the power to grant a stay should be strictly interpreted,18 and accordingly dramatically limited the range of arguments that may be taken into account. First, it excluded the arguments previously submitted to the court of the Member State of origin which issued the foreign judgment on the ground that it would amount to reviewing it as to its substance. Second, it ruled that the same problem would arise with an assessment of “the chances of success of an ordinary appeal lodged or to be lodged in the State in which the judgment was given”.19 Furthermore, the Court ruled that arguments “unknown to the foreign court at the time of its judgment because the appellant had failed to put them before it” should not be taken into ac-

7 Industrial Diamond Supplies para. 34. 8 Industrial Diamond Supplies para. 37 – depending on the Member State, the starting point of the period may be when the judgment is issued or when it is notified to the parties. Magnus/Mankowski/Wautelet, Brussels I Regulation (2011), Art. 37 note 11. 9 Industrial Diamond Supplies para. 38. 10 Industrial Diamond Supplies para. 39. 11 Interdesco v. Nullifire Ltd [1992] 1 Lloyd’s Rep. 180 (EWHC). 12 Kropholler/von Hein, Europäisches Zivilprozessrecht (2022) Art. 37 note 3; Schlosser/Hess, EuZPR (2021) Art. 51 para. 3. 13 Kropholler/von Hein, Europäisches Zivilprozessrecht (2022), Art. 37 note 3. 14 Magnus/Mankowski/Wautelet, Brussels I Regulation (2011), Art. 37 note 12. 15 Court of appeal of Luxembourg, 20 May 1999, 31 Pasicrisie Luxembourgeoise (2000) 200. See also Kropholler/von Hein, Europäisches Zivilprozessrecht (2022) Art. 37 note 3; Magnus/Mankowski/Pålsson, Brussels I Regulation (2011), Art. 46 note 9. 16 Court of appeal of Luxembourg, 14 July 2009, case no 31043. 17 Dickinson/Lein/Fichten, The Brussels I Regulation Recast (2015) para. 13.455. 18 See B. J. van Dalfsen and others v. B. van Loon and T. Berendsen, (C-183/90) (1991) ECR I-4743 para. 30. 19 See van Dalfsen para. 32.

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count either,20 as the party should be precluded from relying on them at a later stage.21 As a result, only arguments related to facts posterior to the foreign judgment, which the judgment debtor could therefore not have previously submitted to the court of the Member State of origin, could be made.22 The position of the European Court of Justice is unreasonably restrictive.23 Relying on the prohibition to review foreign judgments as to their substance is unconvincing in this context. The purpose of the authority exercising its discretion under Art. 63 Brussels IIter is not to determine whether the foreign court was right when it delivered its judgment, or whether the foreign appeal court would be right to allow the appeal. It is merely to assess the chances of the foreign decision losing res judicata for the purpose of granting interim protection to the judgment debtor by staying enforcement. By making such assessment, an Art. 63 court or authority is not judgmental on what the foreign court has ruled, or will rule; it merely attempts to predict what it will rule.24 Accordingly, all arguments which would be admissible before the foreign court should be taken into account by an Art. 63 authority.25

13

As the goal of an Art. 63 authority should be to assess the chances that a foreign court would annul or amend the foreign judgment, the grounds for refusal of recognition listed in Art. 41 or 50 Brussels IIter are irrelevant, and may thus not be taken into account.26

14

The competent authority’s discretion extends to the duration of the stay. However, in practice, the stay should logically end with the release of the judgment of appeal issued in the Member State of origin or – if the foreign judgment had not been challenged yet – after the end of the time limit for the appeal to be lodged in that State.27

15

2. Withdrawal of Certificate Art. 63(1)(c) Brussels IIter adds a third ground for staying the proceedings to refuse enforcement 16 where an application to withdraw a certificate accompanying a decision was submitted. Under the Brussels IIter Regulation, this is only possible for certificates issued pursuant to Art. 47 Brussels IIter for privileged decisions, which explains why the rule does not refer to certificates issued pursuant to Art. 36 Brussels IIter, which may only be rectified. As for the other grounds in Art. 63(1) Brussels IIter, an application to stay proceedings on the ground of Art. 63(1)(c) Brussels IIter should be assessed on the chances of success of the application before the foreign court pursuant to Art. 48 Brussels IIter. The Art. 63 authority should thus assess what is the likelihood that the foreign court would find that the certificate was wrongly granted under Art. 47 Brussels IIter.

17

3. Procedure Art. 63 Brussels IIter is silent on the procedure to stay proceedings. It should be governed by the law 18 of the forum, as provided by Art. 59(1) Brussels IIter for applications for refusal of enforcement. It is unclear, however, how the issue of standing should be addressed, as different persons have standing

20 See van Dalfsen para. 34. 21 See Horst Ludwig Martin Hoffmann v. Adelheid Krieg, (C-145/86) (1988) ECR 645, where the Court decided that a party who fails to appeal against an enforcement order, will not be allowed, at the stage of the enforcement, to rely on arguments he could have pleaded on appeal. 22 See, e.g., in France: CA Paris D. 1994 IR 66; CA Paris RCDIP 91 (2002), 362 with note Pataut; Germany: BGH IPRax 1995, 243 with notes by Grunsky; Magnus/Mankowski/Pålsson, Brussels I Regulation (2011), Art. 46 note 11. 23 See Gaudemet-Tallon/Ancel, Compétence et exécution des jugements en Europe (2018) note 496. 24 Rauscher/Mankowski, EuZPR/EuIPR, Band I: Brüssel Ia-VO (2022) Art. 46 note 13. 25 See Gaudemet-Tallon/Ancel, Compétence et exécution des jugements en Europe (2018) note 496; Kropholler/ von Hein, Europäisches Zivilprozessrecht (2022) Art. 46 note 5. 26 See A-G Léger, opinion in C-432/93 (1995) ECR I-2269, I-2283, paras. 43–51; Magnus/Mankowski/Pålsson, Brussels I Regulation (2011) Art. 46 note 12. 27 Layton/Mercer, European Civil Practice (2004) para. 27.062; Magnus/Mankowski/Pålsson, Brussels I Regulation (2011), Art. 46 note 14.

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Intro to Arts. 64–68 Brussels IIter Introduction to Articles 64–68 to request a suspension of enforcement28 and to challenge a decision on refusal of enforcement.29 Under the Brussels II bis Regulation, a number of scholars had argued that children should have a right to apply for a stay,30 but it submitted that, as the European lawmaker has specifically indicated in Art. 56 Brussels II ter that children have standing to request suspension of enforcement, including in Art. 56(2) Brussels IIter which is directly inspired from Art. 63 Brussels IIter, but have not in Art. 63 Brussels IIter, the issue of standing should be addressed along the same lines as it is under Art. 61 Brussels IIter.31

IV. Particularity of the status of Ireland and Cyprus 19

The Irish and Cypriot legal systems are characterised by the fact that the distinction made by the regulation between ordinary and extraordinary appeals is not relevant. As a consequence, Art. 51(2) Brussels Ibis provides, and Art. 35(2) Brussels IIbis provided, that for judgments issued in Ireland or Cyprus (or the United Kingdom, prior to Brexit), all forms of appeal available are to be considered as ordinary appeals. The rule has been transferred in Art. 72 Brussels IIter, probably because the concept of ordinary appeal is used in many more provisions of this instrument than of the other instruments. This extended definition of an ordinary appeal implies an accordingly extended discretion for the competent courts of the Member State addressed to stay proceedings before them. Caution and selfrestraint are therefore required from the court in these circumstances.

Section 4 Authentic instruments and agreements (Art. 64–Art. 68)

Introduction to Articles 64–68 Bibliography: Auhentic acts in Europe website, https://www.authentic-acts.eu/en; Comparative Study on Authentic Instruments National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union – United Kingdom, France, Germany, Poland, Sweden, 2 Romanian Rev. Priv. L. 204 (2010); Dutta, Private divorces outside Rome III and Brussels II bis? The Sahyouni gap (2019), 56, Common Market Law Review, Issue 6, pp. 1661–1672; Dymitruk/Gołaczyn´ski/Kaczorowska/Rodziewicz, Differences Between the Recognition and Enforcement of Authentic Instruments and the Recognition and Enforcement of Judgments, LeXonomica, 2021/13(1), 1–16, https://doi.org/10.18690/lexonomica.13.1.1-16.2021; Fitchen, Authentic Instruments and European Private International Law in Civil and Commercial Matters: Is Now the Time to Break New Ground?, Journal of Private International Law, 2011/7:1, pp. 33–100; Fitchen, “Recognition”, Acceptance and Enforcement of Authentic Instruments in the Succession Regulation, Journal of Private International Law, 2012/8:2, pp. 323–358; Fitchen, The Private International Law of Authentic Instruments (2020); Franzina, Chapter V: Authentic Instruments and Court Settlements, in: Viarengo/Franzina, The EU Regulations on the Property Regimes of International Couples A Commentary (2020), pp. 430–431; Kramme, Private Divorce in Light of the Recast of the Brussels IIbis, Zeitschrift für das Privatrecht der Europäischen Union, 3/2021, pp. 101–106; Lazic´, Regulation Brussels IIbis: Guide for application (2018), https://www.asser.nl/media/5260/crossborder-proceedings-guide-for-application.pdf; Lazic´/Pretelli, Revised Recognition and Enforcement Procedures in Regulation Brussels II ter, Yearbook of Private International Law Vol XXII – 2020/2021, pp. 155–182; Magnus/ Mankowski, Brussels IIbis Regulation (2012); Mansel, Acceptance of Authentic Instruments, in: Calvo Caravaca/ Davì/Mansel (eds.), The EU Succession Regulation: A Commentary (2016), pp. 625–663; Study on the definition of notarial authentic act and annex on costs. Document drafted by the “authentic act” working group of UINL. President: Enrique Brancós Nuñez, The International Union of Notaries https://www.uinl.org/documents/20181/ 339555/ANM_CGK-11-1-EN-Acte+Authent.%2BCosts/6dd7b827-63d9-41d9-868b-2856af50b105.

28 See Art. 56 note 8 (Cuniberti). 29 See Art. 61 note 3 (Cuniberti). 30 Magnus/Mankowski/McClean, Brussels IIbis Regulation (1st ed. 2012) Art. 35 note 12; Bülow/Böckstiegel/Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (2016), Art. 35 note 4. 31 See Art. 61 note 3 (Cuniberti).

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Intro to Arts. 64–68 Brussels IIter

I. Increased attention to authentic instruments and agreements During the adoption of the Brussels II acts – the Brussels Convention, the Brussels II and the Brus- 1 sels IIbis Regulation – the question of recognition of authentic instruments and agreements (called settlements in the first two acts)1 was of minor importance. The regulation of this issue in all these acts was limited to a reference to the provisions on recognition and declaration of enforceability of judgments, with an order to apply them accordingly. In the case of the Brussels IIter Regulation, the situation is different because for the first time authentic instruments and agreements (AI&A) have been brought out of the shadow of judicial decisions.2 They received more attention3 and were given their own regulations – five articles (64–68) forming Section 4 (Authentic instruments and agreements) of Chapter IV (Recognition and enforcement) of Brussels IIter. In addition, this Regulation includes definitions of authentic instruments and agreements in its Art. 2 (2) and (3). These provisions are theoretically refined and contain separate rules for divorce/separation cases on the one hand and parental responsibility on the other. According to Fitchen the Brussels IIter is “to be praised for taking non-judgment recognition and enforcement seriously and attempting to improve clarity and reduce confusion concerning, inter alia, the cross-border potentiality of authentic instruments.”.4 The AI&A have their own regulations, but that does not mean that they are completely independent of those for court decision. First, these provisions are modeled on the judicial decision provisions (with the necessary modifications due to the consensual nature of AI&A). For instance, similarly to court judgments, they were given automatic enforceability in Brussels IIter. Second, Art. 65 Brussels IIter provides that (certain) provisions relating to recognition and enforcement of judicial decisions should be applied accordingly. Recital 70 adds that AI&A should be treated as equivalent to ‘decisions’ for the purpose of the application of the rules on recognition and enforcement.

2

The rise of attention of EU legislators5 is due to “a need to clarify the current provision due to the di- 3 vergent views on interpreting and applying it and the fact that there is a growing number of Member States which use different forms of extra-judicial agreements”.6 Even if only recently it was observed that under the laws of the Member States AI&A on divorce and parental responsibility “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”,7 the situation changed. The EU noted a modern trend towards a domestic reliance on non-judicial documents concerning Brussels IIbis ‘divorce’ and parental responsibility issues.8 This phenomenon recently gave rise to the first preliminary reference to the CJEU on the interpretation of Art. 46 Brussels IIbis. German Bundesgerichtshof asked is the dissolution of a marriage on the basis of Art. 12 of Italian Decree-Law of 20149 a divorce within the meaning of the Brussels IIbis Regulation

1 See Legislative history in point 3 below. 2 Fitchen, The Private International Law of Authentic Instruments (2020), p. 367 assesses that “the section is far more self-contained that usual and features unprecedented level of detail and safeguarding”. 3 It could even be said that EU law has gone from one extreme to the other, since the term ‘authentic instrument’ is used 84 times in the Brussels IIter and the term ‘agreement’ 128 times. This phenomenon is part of a wider trend – the Regulation is lengthy and too casuistic. Also Fitchen, The Private International Law of Authentic Instruments (2020), p. 373, fn 164 observes that the legislators have sometimes been prone to over regulate the treatment of non-judicial decisions in Brussels IIter. 4 Fitchen, The Private International Law of Authentic Instruments (2020), p. 367. 5 Not only EU legislators have decided to pay more attention to AI&A, but also academia. Fitchen has taken on the challenge of systematically analysing all EU PIL regulations on authentic instruments. His excellent monograph, the first on the subject, was published in 2020, see Fitchen, The Private International Law of Authentic Instruments (2020). The detail and comprehensiveness of the analysis almost leaves no room for others. 6 Council of the European Union, Presidency Note 11400/18 of 26 July 2018, point 29. 7 Magnus/Mankowski, Brussels IIbis Regulation (2012) p. 380. 8 Note of the Maltese Presidency of 15 April 2017, 7979/1/17 Rev 1 after Fitchen, The Private International Law of Authentic Instruments (2020), p. 368, fn 150; see also Fitchen, The Private International Law of Authentic Instruments (2020), pp. 338–339. 9 Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014.

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Intro to Arts. 64–68 Brussels IIter Introduction to Articles 64–68 or is to be treated in accordance with the rule in Art. 46 of this Regulation on authentic instruments and agreements.10 4

Similarly, more often certain aspects of parental responsibility are regulated in agreements – private or concluded through mediation.11 EU law even explicitly encourages the use of the latter procedure.12 Still, it should be noted that using AI&A is less popular than settling cases in court. But the exact extent of the practical use of them remains unknown and mysterious within the EU.13

II. Fragmentation of EU private international law on authentic instruments and agreements 5

Before analysing Arts. 64–68 Brussels IIter in detail, it is worth mentioning that the issue of the recognition and enforcement of AI&A also appears in other EU private international law instruments, namely the European Enforcement Order Regulation (2004), the Maintenance Regulation (2009), the Brussels Ibis Regulation (2012), the Succession Regulation (2012) and Matrimonial Property and Registered Partnerships property Regulations (2016). This diversity of legislation has adverse consequences for individuals. In the case of a family agreement (in a broad sense; in the form of an authentic instrument or a registered agreement) that involves several matters, this fragmentation makes it necessary to use more than one legal instrument to ensure its recognition and enforcement in another Member State. The Brussels IIter system applies only to the part of the agreement that concerns divorce and parental responsibility. The remaining parts must be enforced under other EU legislation with an appropriate scope of application. The lack of an international legal framework to facilitate the recognition and enforcement of such mediated ‘package agreements’ is seen as an obstacle by legal practitioners such as family judges, lawyers and mediators. As it is declared “there is great uncertainty as to how to ensure cross-border recognition and enforceability of mediated agreements, particularly where those agreements deal with a number of subject matters at the same time, such as matters of parental responsibility, maintenance and other related issues.”.14 In their opinion “despite the EU law’s encouragement of amicable disputes resolution, the EU system of recognition and enforcement is decision-focused and does not offer comprehensive solutions to make agreements circulate within the EU.”15 The Brussels IIter Regulation does not improve the situation, and even unintentionally adds to its complexity, by introducing two different certificates – one for divorce and legal separation and one for matters of parental responsibility. If an authentic instrument or an agreement covers these two issues, two certificates are mandatory for the cross-border circulation of the act.16

III. Legislative history 6

Authentic instruments were “irrelevant to the initial cross-border problems motivating the Brussels II Convention”17 and it was even considered not to include them in the convention.18 As three Member 10 The reference for a preliminary ruling of 1 December 2020, Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v. TB (Case C-646/20). According to Magnus/Mankowski, Brussels IIbis Regulation (2012) p. 380, merely private divorce even if declared in a Member State did not fall under Art. 46 Brussels IIbis and could not be recognised in other Member States. 11 See Recital 35 Brussels IIter noting the growing importance of mediation and other methods of alternative dispute resolution. 12 See Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, OJ L 136/3, Recitals 6–7, Art. 1(1). 13 Fitchen, The Private International Law of Authentic Instruments (2020), p. 383. 14 See the EU co-funded project on recognition of mediated agreements in cross-border family disputes (AMICABLE) webstite, https://www.amicable-eu.org/amicable-eng/best-practice-tool. For an overview of European/ international legal framework assisting in the resolution of cross-border family disputes see EU General Best Practice Tool for the Recognition and Enforceability of Mediated Agreements in the EU available on the AMICABLE website. 15 EU General Best Practice Tool for the Recognition and Enforceability of Mediated Agreements in the EU referred to in the previous footnote. 16 Fitchen, The Private International Law of Authentic Instruments (2020), p. 372–373.

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Art. 64 Brussels IIter

States, United Kingdom (Scotland), Sweden and Finland knew such instruments19 finally Art. 13 of the Convention provided that documents formally drawn up or registered as authentic instruments and enforceable in one Member State and settlements which have been approved by a court in the course of proceedings and are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as the judgments. The Arts. 13 (3) Brussels II and 46 Brussels IIbis were similar. The latter one however introduced one change. The ‘settlements approved by a court in a the course of proceedings and are enforceable’ were replaced in Art. 46 Brussels IIbis by ‘the agreements between the parties that are enforceable’.20 As Magnus & Mankowski observe the reason for this change is nowhere explained. They indicate that 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.21 In the Commission’s proposal for Brussels IIter AI&A were regulated in two legal provisions22 – 7 Art. 55 on the recognition and Art. 56 on a certificate dedicated to AI&A. Further three articles (and related recitals) were added in an amended legislative proposal prepared by Council’s secretariat of 2018.23 It was a result of a questionnaire on AI&A sent by the Maltese Presidency to Member States which revealed an increase in the importance of these instruments on divorce and parental responsibility in some states.24 Finally, in Brussels IIter AI&A are regulated in Art. 64–68. According to the correlation table, Art. 65 Brussels IIter is indicated as the successor to Art. 46 of the Brussels IIbis Regulation. Arts. 64 and 66–68 Brussels IIter are new and have no predecessor in Brussels IIbis. Section 4 of Brussels IIter is related with Art. 2 (2) subpoint 2) Brussels IIter which defines an authentic instrument and subpoint (3) which defines an agreement.25 The introduction of these definitions in the regulation is a novelty.

Article 64 Scope This Section applies in matters of divorce, legal separation and parental responsibility to authentic instruments which have been formally drawn up or registered, and to agreements which have been registered, in a Member State assuming jurisdiction under Chapter II. I. Contents and aim . . . . . . . . . . . . . . . . .

1

IV. Territorial scope . . . . . . . . . . . . . . . . . . 11

II. Material scope . . . . . . . . . . . . . . . . . . . III. Formal scope . . . . . . . . . . . . . . . . . . .

2 4

V. Temporal scope . . . . . . . . . . . . . . . . . . 12

17 Fitchen, The Private International Law of Authentic Instruments (2020), p. 340–341. 18 Fitchen, The Private International Law of Authentic Instruments (2020), p. 341. 19 Borrás Report, para 61. Fitchen, The Private International Law of Authentic Instruments (2020), p. 341 precises that there were Scottish authentic instruments on parental responsibility (registered in the Books of Council and Session of the Scottish Courts) and Swedish/Finish settlements agreements on parental responsibility approved by social welfare boards. 20 As Fitchen, The Private International Law of Authentic Instruments (2020), p. 348 observes it indicated that the focus of the cross-border potential for settlements should be on the agreement between the parties rather than the fact that they have to reach it in conclusion of court proceedings with the approval of the court. 21 Magnus/Mankowski, Brussels IIbis Regulation (2012), p. 379. 22 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. 23 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) – General approach, General Secretariat of the Council, 12/12/2018, 15401/18. 24 AI&A legislative process is described in detail by Fitchen, The Private International Law of Authentic Instruments (2020), pp. 368–371. 25 The first proposal did not contain such definitions, they were proposed in the second draft in 2018.

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Art. 64 Brussels IIter Scope

I. Contents and aim 1

Section 4 of Chapter 4 of Brussels IIter devoted to authentic instruments and agreements begins with Art. 64, which defines material and formal scope of this Section. An important novelty is the explicit limitation of its application to instruments and agreements drawn up in accordance with the requirements of the rules on jurisdiction laid down in the Regulation (see below Art. 64 note 10 [Fra˛ckowiak-Adamska]).

II. Material scope 2

Art. 64 Brussels IIter defines the material scope of application of Section 4 narrower than the scope of application of the Brussels IIter Regulation as defined in Art. 1(1), which includes also marriage annulment. This limitation appears for the first time. Since it seems unlikely that any Member State would permit the annulment of a marriage by authentic instrument or contract, these reservations seem overly cautious. But even if this were the case, the material scope of Section 4 is limited to divorce, legal separation and parental responsibility.1 The Regulation will thus not allow for cross-border recognition of non-judicial annulments.2 However, there is one exception stemming from Art. 99 (2) Brussels IIter, which provides that any decision as to the invalidity of a marriage taken under the International Treaty (Concordat) between the Holy See and Portugal shall be recognised in the Member States on the conditions laid down in Subsection 1 of Section 1 of Chapter IV. Similar solution is provided for treaties between the Holy See and Italy, Spain and Malta.

3

The notions of divorce, legal separation and parental responsibility are analysed in the commentary to Art. 1 Brussels IIter.

III. Formal scope 4

In so far as formal scope is concerned, Section 4 covers two types of documents, namely ‘authentic instruments which have been formally drawn up or registered’ and ‘agreements which have been registered’ in a Member State assuming jurisdiction under Chapter III. Their definitions are set out in Art. 2 (2) subpoint (2) and (3) of Brussels IIter.3 A detailed commentary is provided there but it is worth to remind here that according to Art. 2 (2) subpoint 2 Brussels IIter an ‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in any Member State in the matters falling within the scope of this Regulation4 and the authenticity of which: (a) relates to the signature and the content of the instrument; and (b) has been established by a public authority or other authority empowered for that purpose.5 This definition relies on criteria set out by the ECJ in judgment Unibank6 of 1999. These criteria have also been introduced into other EU regulations on private international law. This has given the term ‘authentic instrument’ an autonomous European meaning.7 As Recital 15 declares the term ‘empowerment’ in the context of ‘authen1 It is worth to note that definition of authentic instruments and agreements in Art. 2 (2) and (3) Brussels IIter says about a document which has been formally drawn up or registered or has been concluded by the parties “in the matters falling within the scope of this Regulation”. It has to be read however in conjunction with Art. 64 Brussels IIter which ensures the cross-border effects of AI&A only in matters of divorce, legal separation and parental responsibility. 2 Similarly Fitchen, The Private International Law of Authentic Instruments (2020), p. 373. 3 A list of the most common authentic acts in inheritance and family law matters can be found on Authentic acts in Europe website, https://www.authentic-acts.eu/en. 4 This definition (in the part related to ‘in the matters falling within the scope of this Regulation’) does not corelate with the limitation of the scope of application provided for authentic instruments in Art. 64 Brussels IIter. 5 Member States shall communicate those authorities to the Commission in accordance with Art. 103(1)(a) Brussels IIter. 6 Unibank A/S v. Flemming G. Christensen (Case C-260/97), ECLI:EU:C:1999:312 paras 14–21, adopted in the context of Brussels Convention of 1968. 7 Magnus/Mankowski, Brussels IIbis Regulation (2012), p. 381.

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Art. 64 Brussels IIter

tic instrument’ of Brussels IIter should be interpreted in accordance with the one used horizontally in other Union instruments. There was no definition of authentic instruments in the Brussels IIbis Regulation. It was assessed as “surprising” as at the time that the Brussels IIbis Regulation was being drafted the Unibank decision by the ECJ was already two years old and because the regulation was drafted contemporaneously with the EEO regulation which did feature a definition of an authentic instrument based on Unibank principles.8 Fitchen observes however that “all academic commentators […] unite on the conclusion that the unexpressed definition should, mutatis mutandis, essentially follow the autonomous Unibank criteria”9. The definition in Brussels IIter confirmed this view as the definition relies on Unibank criteria. Brussels IIter ensures the cross-border circulation of certain10 agreements in matrimonial matters 5 and matters of parental responsibility but not all of them. As defined in Art. (2) subpoint (3) Brussels IIter an ‘agreement’ means, for the purposes of Chapter IV, a document which is not an authentic instrument, has been concluded by the parties in the matters falling within the scope of this Regulation and has been registered by a public authority as communicated to the Commission by a Member State in accordance with Art. 103 Brussels IIter for that purpose”. Recital 14 explains that the Regulation distinguishes three categories of agreements: 1) agreements approved by the court following an examination of the substance, 2) agreements which have been registered by a public authority, 3) mere private agreements. Only the first two categories are covered by the Brussels IIter (albeit on different legal bases). The third is excluded from the scope of the Regulation as it does not meet the criteria in the definition (of being registered by a public authority). Any possible doubts are dispelled by recital 14, which states that ‘[t]his Regulation should not allow free circulation of mere private agreements’. It shows the desire to avoid purely private divorces like those by talaq or ghet being allowed cross-border efficacy by the Brussels II instruments.11 The first category agreements – those approved by the court following an examination of the substance in accordance with national law and procedure – should be recognised or enforced as decisions.12 Section 4 of Chapter 4 on Authentic instruments and agreements therefore does not apply to them, they are treated in the same manner as judicial decisions and recognised and enforced on the basis of Sections 1–3 and 5 of Chapter 4.

6

The second category – agreements which have been registered by a public authority – are recognised and enforced on the basis of Section 4 of Chapter 4. Recital 14 explains ‘[o]ther agreements which acquire binding legal effect in the Member State of origin following the formal intervention of a public authority or other authority as communicated to the Commission by a Member State for that purpose should be given effect in other Member States in accordance with the specific provisions on authentic instruments and agreements in this Regulation’. The explanation in Recital 14 is slightly wider than a definition provided for Art. 2 (2) subpoint (3) Brussels IIter. According to the latter one an agreement must be registered by a public authority. Recital 14 adds ‘other authority’. It clarifies that such public authorities might include notaries registering agreements, even where they are exercising a liberal profession.

7

In any event, Member States should inform the Commission of these authorities in accordance with Art. 103 Brussels IIter.

8

Brussels IIter “increased the cross-border relevance of private agreements if ‘certified’ by an ap- 9 pointed authority in the Member State of origin”13. Authentic instruments and court settlements are regulated in Maintenance, Brussels Ibis and Succession Regulations. The cross-border effects of ex-

8 9 10 11

Fitchen, The Private International Law of Authentic Instruments (2020), pp. 349–350. Fitchen, The Private International Law of Authentic Instruments (2020), p. 350. Recitals 2 and 5 of Brussels IIter. Fitchen, The Private International Law of Authentic Instruments (2020), p. 356, fn 95. See also Dutta, Private divorces outside Rome III and Brussels II bis? The Sahyouni gap, (2019), 56, Common Market Law Review, Issue 6, pp. 1661–1672. 12 Recital 14 of Brussels IIter. 13 Fitchen, The Private International Law of Authentic Instruments (2020), p. 338.

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Art. 64 Brussels IIter Scope tra-judicial agreements, which have been registered by a public authority is ensured only in Brussels IIter.14 10

The most important novelty introduced by Art. 64 Brussels IIter is the indication that the Regulation provides for the recognition and enforceability of authentic instruments and agreements only if they have been drawn up in the Member State assuming jurisdiction under Chapter II15. This applies to both authentic instruments and agreements16. The requirement that the jurisdiction of a Member State whose authorities formally drew up or registered AI&A has been verified in the Member State of origins, is, according to Presidency note, “essential”. Fitchen observes that “[t]his jurisdictional link is presumably designed to reassure the Member States that ‘divorce-tourism’ will not emerge as an unforeseen eventuality of certain Member States boosting the prospects of divorce by consent”17. According to him, the requirement of respecting jurisdictional rules by approving or registering authorities for agreements being capable of recognition and enforcement is therefore an element of ensuring safeguards counterbalancing the growing trend to use them in some Member States and new rules providing for automatic enforceability.18 It is worth noting that in other European private international law regulations there are no similar restrictions. Fitchen notes that it is “normal for authentic instruments to avoid its jurisdictional controls”19 and “a lack of direct international jurisdictional control of authentic instruments and their intra-EU creators […] [p]reviously […] was simply accepted by EU private international law Regulations.”.20

IV. Territorial scope 11

Section 4 of Chapter 4 covers only authentic instruments and registered agreements which have been drawn up or registered in a Member State in which the Brussels IIter Regulation apply. Denmark is not participating in this regulation. Ireland has decided to participate. The CJEU confirms that a recognition of a divorce decision delivered in a third country does not come within the scope of EU law, since neither the provisions of Regulation No 1259/2010 nor those of Regulation No 2201/2003, or any other legal act of the European Union, apply to such recognition21.

V. Temporal scope 12

The temporal scope of application of Brussels IIter is regulated in its Art. 100(1) according to which the Regulation shall apply to authentic instruments formally drawn up or registered and to agreements registered on or after 1.8.2022. As rightly observed, the drawing-up/registration date is determinative, not any later date of enforceability.22 Regulation(EC) No 2201/2003 shall continue to apply to authentic instruments formally drawn up or registered and to agreements which have become enforceable in the Member State where they were concluded before 1.8.2022 and which fall within the scope of that Regulation.23

14 It was also ensured by Brussles IIbis which used the notion ‘agreements between the parties that are enforceable in the Member State in which they were concluded’. 15 Chapter II of Brussels IIter includes i.a. Section I on jurisdiction in matrimonial matters (Arts. 3–6 Brussels IIter) and section II on jurisdiction in matters of parental responsibility (Arts. 7–16 Brussels IIter). 16 See Art. 66 Brussels IIter. 17 Fitchen, The Private International Law of Authentic Instruments (2020), p. 367, fn. 145. 18 Fitchen, The Private International Law of Authentic Instruments (2020), p. 370. 19 Fitchen, The Private International Law of Authentic Instruments (2020), p. 369. 20 Fitchen, The Private International Law of Authentic Instruments (2020), p. 369, fn. 155. 21 Soha Sahyouni v. Raja Mamisch (Case C-372/16), ECLI:EU:C:2017:988 para 27. 22 Fitchen, The Private International Law of Authentic Instruments (2020), p. 351, fn. 84 citing Magnus/Manowski/Mankowski, Brussels IIbis (2017) Art. 64 note 7. 23 Art. 100(2) Brussels IIter.

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Article 65 Recognition and enforcement of authentic instruments and agreements 1. Authentic instruments and agreements on legal separation and divorce which have binding legal effect in the Member State of origin shall be recognised in other Member States without any special procedure being required. Section 1 of this Chapter shall apply accordingly, unless otherwise provided for in this Section. 2. Authentic instruments and agreements in matters of parental responsibility which have binding legal effect and are enforceable in the Member State of origin shall be recognised and enforced in other Member States without any declaration of enforceability being required. Sections 1 and 3 of this Chapter shall apply accordingly, unless otherwise provided for in this Section. The Commission’s proposal replicated Brussels IIbis provision treating AI&A together in all cases covered by the Regulation. It proposed only the necessary changes related to automatic enforceability.1 However, the final version of the Brussels IIter Regulation is much more sophisticated. Separate regulations are provided for documents relating to legal separation and divorce (paragraph 1) and to parental responsibility (paragraph 2).

1

This distinction is made because the documents relating to legal separation and divorce can only have recognition effects. As Fitchen pointly observes, the Regulation will not allow the cross-border enforcement of any domestically enforceable authentic instrument or agreement concerning a divorce or legal separation.2 However, documents relating to parental responsibility may also be capable of being enforced. The common requirement is that these documents should have binding legal effect in the Member State of origin. Documents relating to parental responsibility should also be enforceable in that State.

2

Fitchen draws attention to the fact that in the context of authentic instruments it would be more ap- 3 propriate to talk about the acceptance than the orthodox recognition effects.3 The “recognition” in Brussels II family instruments “is thus closer to an administrative arrangement”.4 EU legislators apparently do not have a clear position on this issue. The legislation uses different terminology. Art. 48(1) of Maintenance Regulation in the context of court settlements and authentic instruments uses a notion of recognition and enforceability. Art. 58 of the Brussels Ibis Regulation does not refer to the recognition of authentic instruments5 but addresses only their enforceability and enforcement.6 The Succession Regulation uses a notion of “acceptance of authentic instruments” and the evidentiary effects in another Member State7 and enforceability of court settlements8. The Brussels IIter Regulation however uses a notion of a ‘recognition’ in case of AI&A. The legal basis for the recognition of AI&A on legal separation and divorce is Art. 65 (1) Brussels IIter which states that authentic instruments and agreements on legal separation and divorce which 1 Art. 55 in 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. 2 Fitchen, The Private International Law of Authentic Instruments (2020), p. 373. 3 Fitchen, The Private International Law of Authentic Instruments (2020), p. 345. See also Fitchen, Authentic Instruments and European Private International Law in Civil and Commercial Matters: Is Now the Time to Break New Ground?, Journal of Private International Law, 2011/7:1, 33–100; Mansel, Acceptance of Authentic Instruments in Calvo Caravaca/Davì/Mansel (eds.), The EU Succession Regulation: A Commentary, 2016, pp. 625–663. 4 Mansel, Acceptance of Authentic Instruments in Calvo Caravaca/Davì/Mansel (eds.), The EU Succession Regulation: A Commentary, 2016, pp. 625–663. 5 Dymitruk/Gołaczyn´ski/Kaczorowska/Rodziewicz, Differences Between the Recognition and Enforcement of Authentic Instruments and the Recognition and Enforcement of Judgments. LeXonomica, 2021/13(1), p. 6. 6 The same is for court settlements – Art. 59 Brussels Ibis. 7 Art. 59 of Succession Regulation. 8 Art. 61 of Succession Regulation.

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4

Art. 65 Brussels IIter Recognition and enforcement of authentic instruments and agreements have binding legal effect in the Member State of origin shall be recognised in other Member States without any special procedure being required. In most countries divorce is pronounced by a court, and that court’s decision dissolves the marriage.9 However, the extrajudicial divorce by mutual consent10 today is possible in several Member States. It can have a form of an authentic instruments (mainly notary divorces11) or a private agreement registered by an official (often by a notary like in France12 or the civil registrar like in Italy). The formal intervention of the public authorities gives these documents the binding legal effect necessary for their automatic recognition in other Member States.13 They shall be recognised in other Member States without any special procedure being required. 5

The Brussels IIter Regulation does not provide for a procedure for the recognition of AI&A. It only describes some elements of it like grounds for refusing to recognise an authentic document or agreement.

6

It is therefore necessary to refer to the provisions on judgments. Art. 65 Brussels IIter provides that the provisions of Section 1 of Chapter 4 relating to the recognition of judicial decisions shall apply accordingly, unless otherwise provided for in Section 4. Most of these provisions (Arts. 30–41 Brussels IIter) can potentially apply. According to Fitchen the provisions of Section 4 appear to so invalidate Arts. 31(1), 32, 36(1–2), 37, 38, 39 and 41 of Section 1 because Section 4 provides its own measures in these respects”14. As consequence in his opinion, the remaining parts of Section 1 appear to apply to AI&A that are, according to Recital 70 to be treated as decisions for this purpose15.

7

Under the Brussels IIbis regulation the reference to the provisions on recognition of judgments was general (AI&A shall be recognised and declared enforceable under the same conditions as judgments). In the Brussels IIter Regulation, the reference is very precise – to Section 1 for divorce and legal separation and to Sections 1 and 3 for parental responsibility. From a formal point of view, the requirement of an adequate application does not extend to provisions other than Section 1 of Chapter 4. A question arises whether Section 5 (Arts. 69–75 Brussels IIter) applies in case of AI&A. This section contains important provisions. Art. 69 Brussels IIter prohibits a review of jurisdiction of the court of origin during application of public policy test. Art. 70 Brussels IIter states that the recognition of a 9 https://e-justice.europa.eu/45/EN/divorce_and_legal_separation. 10 A divorce by mutual consent can also have a place in the court. In such a case it would have a form of a decision of a court and would be recognized on the basis of Chapter 4 Section 1 of Brussels IIter. 11 Allowed in Estonia, Latvia, Romania and Slovenia. See Fitchen, The Private International Law of Authentic Instruments (2020), p. 339. More Kramme, Private Divorce in Light of the Recast of the Brussels IIbis, Zeitschrift für das Privatrecht der Europäischen Union, 3/2021, pp. 101–106. 12 Since 1 January 2017, France also has a divorce procedure by means of a mutual contractual agreement without the intervention of a judge. The agreement must only be deposited with a notary who checks on compliance with formal requirements. The depositing of this agreement gives it a certain date and enforceability. See Hammje, Le divorce par consentement mutuel extrajudiciaire et le droit international privé. Les aléas d’un divorce sans for (2017), Revue critique de droit international privé, p. 143. Fitchen, The Private International Law of Authentic Instruments (2020), p. 340 underlines that “the new French process leads to a private contractual divorce – not a judgment, not a court approved settlement and not (despite the involvement of the notary) an authentic instrument”. “The notary is only involved after the agreement is reached to check that the parties have each complied with the requirements of such a divorce and to record the agreement as a notarial minute”. 13 Art. 46 of Brussels IIbis required that that authentic instruments and agreements were enforceable which provoked an academic discussion whether those acts which have the content capable only of recognition can be regarded as enforceable for the purposes of this provision. According to Magnus/Mankowski, Brussels IIbis Regulation, 2012, p. 383, Art. 46 requires that the authentic instrument or the enforceable agreement must have an enforceable contents. For an overview of this discussion see Fitchen, The Private International Law of Authentic Instruments (2020), pp. 352–357. In a recent preliminary reference the Bundesgerischtshof expressed its opinion on this issue. It observed that contrary to Article 65(1) of the Brussels IIter Regulation, Art. 46 of Brussels IIbis does not mention divorce; it refers solely to enforceable authentic instruments and agreements. It cannot cover divorce in the absence of any such enforceable instrument or agreement in that regard. See the reference for a preliminary ruling of 1 December 2020, Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v. TB (C-646/20), point 23. 14 Fitchen, The Private International Law of Authentic Instruments (2020), p. 373. 15 Fitchen, The Private International Law of Authentic Instruments (2020), p. 373.

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decision in matrimonial matters may not be refused because the law of the Member State in which such recognition is invoked would not allow divorce, legal separation or marriage annulment on the same facts. According to Art. 71 Brussels IIter under no circumstances may a decision given in another Member State be reviewed as to its substance. Under Brussels IIbis it was accepted that these prohibitions also apply to AI&A.16 Under Brussels IIter it is possible that they do not. A literal interpretation of Art. 65 Brussels IIter would suggest that these classical limitations do not apply in case of AI&A as they are in the Section to which there is no reference. However, Fitchen indicates without hesitation and further analysis that it remains impossible in the Brussels IIter Regulation to: review the jurisdiction of the court of origin, to refuse to recognize because of differences in the applicable law or to examine the substance of the authentic instrument or agreement via a révision au fond.17 However, as to the issue of reviewing the jurisdiction, such a conclusion is not possible as Art. 64 Brussels IIter limits the scope of application of rules on the recognition and enforceability of authentic instruments and agreements by allowing it only if they have been drawn up in the Member State assuming jurisdiction under Chapter II. The Regulation will thus not apply in other case (and consequently there is no need to discuss the application of Art. 69 Brussels IIter). As to analogous application of Arts. 70 and 71 Brussels IIter, Fitchen’s interpretation could be based on Recital 70 according to which AI&A should be treated as equivalent to ‘decisions’ for the purpose of the application of the rules on recognition and enforcement. This issue needs to be clarified by the ECJ. If the Luxembourg court opts for a narrow interpretation, this will reduce the importance of these acts in the cross-border area, as it will be possible for example to refuse the recognition if the law of the Member State in which such recognition is invoked would not allow divorce or legal separation. According to Art. 65(2) Brussels IIter AI&A relating to parental responsibility which have binding legal effect and are enforceable in the Member State of origin shall be recognised and enforced in other Member States without any declaration of enforceability being required. An AI&A on parental responsibility must not only have binding legal effect but also be enforceable in the Member State of origin.18 As in the case of judgments, the exequatur requirements have been abolished for AI&A and automatic enforceability has been granted. There is no need to apply for a declaration of enforceability, but it is possible to present the authentic instrument or agreement directly to the enforcement authorities in another Member State. Sections 1 and 3 of Chapter 4 shall apply accordingly, unless otherwise provided for in Section 4. In principle all those provisions – Arts. 30–41 and Arts. 51–63 Brussels IIter can potentially apply. According to Fitchen the provisions of Section 3 are theoretically generally applicable and less prone to wholesale disapplication than the Section 1 provisions”.19

8

Section 2 (Recognition and enforcement of certain privileged decisions) regulating the fast-track deci- 9 sions on rights of access and the return of the child is not mentioned in the reference in Art. 65(2) Brussels IIter. Even if authentic instruments and certain extra-judicial agreements concerning the return of a child under the 1980 Hague Convention,20 are covered by the Regulation21, they could not benefit from the fast-track system. Fitchen writes that the seeming removal of authentic instruments and agreements as potential enforcement titles for the special category of privileged decisions is open to question. It is unclear that there was a pressing need to exclude their previous recognition effects by this reform.22 As rightly observed by Magnus/Mankowski arguing in the context of Brussels IIbis that fast-track procedure provided for access and return decisions should apply also to AI&A “if there exists an enforceable agreement on the right of access the interests and welfare of the child will regularly require its direct enforcement in the same way as if a comparable judgment existed”.23 16 Fitchen, The Private International Law of Authentic Instruments (2020), indirectly on p. 361 and explicitly on p. 362. 17 Fitchen, The Private International Law of Authentic Instruments (2020), p. 379. 18 Art. 65(2) Brussels IIter. 19 Fitchen, The Private International Law of Authentic Instruments (2020), p. 373. 20 Which, according to the case-law of the Court of Justice and in line with Article 19 of the 1980 Hague Convention, are not proceedings on the substance of parental responsibility but closely related to it and addressed by certain provisions of this Regulation. See Recital 15 of Brussels IIter. 21 See Recital 15 of Brussels IIter. 22 Fitchen, The Private International Law of Authentic Instruments (2020), p. 374. 23 Magnus/Mankowski/Magnus, Brussels IIbis Regulation (2012), p. 381.

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Art. 66 Brussels IIter Certificate 10

In summary, as Fitchen rightly observes24, cross-border circulation of the non-judgment titles is to be conditional on: a) The jurisdiction of the Member State in which the authentic instrument was drawn-up or registered (or in which the agreement was concluded) being verified in the Member State of origin; b) The right certificate being used; c) Further safeguards including (but not limited to) the public policy exception.

Article 66 Certificate 1. The court or competent authority of the Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application by a party, issue a certificate for an authentic instrument or agreement: (a) in matrimonial matters using the form set out in Annex VIII; (b) in matters of parental responsibility using the form set out in Annex IX. The certificate referred to in point (b) shall contain a summary of the enforceable obligation contained in the authentic instrument or agreement. 2. The certificate may be issued only if the following conditions are met: (a) the Member State which empowered the public authority or other authority to formally draw up or register the authentic instrument or register the agreement had jurisdiction under Chapter II; and (b) the authentic instrument or agreement has binding legal effect in that Member State. 3. Notwithstanding paragraph 2, in matters of parental responsibility the certificate may not be issued if there are indications that the content of the authentic instrument or agreement is contrary to the best interests of the child. 4. The certificate shall be completed in the language of the authentic instrument or agreement. It may also be issued in another official language of the institutions of the European Union requested by the party. This does not create any obligation for the court or competent authority issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields. 5. If the certificate is not produced, the authentic instrument or agreement shall not be recognised or enforced in another Member State. 1

Art. 66 Brussels IIter concerns certificates for recognition or enforcement of AI&A. It describes the conditions for their issuance and their mandatory nature. Art. 66 (5) Brussels IIter states explicitly that if the certificate is not produced, the authentic instrument or agreement shall not be recognised or enforced in another Member State.1 Fitchen rightly points out that this requirement “sits somewhat uneasily with the Art. 65(1) statement that for a qualifying authentic instrument, recognition shall occur in other Member States ‘without any special procedure being required’.2

2

For the first time in the history of the Brussels II acts, certificates specifically dedicated to AI&A were introduced. Their absence in the Brussels II and IIbis made it necessary to use the certificates provided for in the judgments also for AI&A. It resulted in the need to “strikethrough and amend the standard forms for judgments by hand to suit and accompany a non-judgment title that is to be presented in a different member State”3. Fitchen therefore views the introduction of special certificates 24 Fitchen, The Private International Law of Authentic Instruments (2020), p. 371. 1 Under Brussels IIbis it was not clear but academics suggested such an interpretation, see Fitchen, The Private International Law of Authentic Instruments (2020), p. 366. 2 Fitchen, The Private International Law of Authentic Instruments (2020), p. 374. 3 Fitchen, The Private International Law of Authentic Instruments (2020), p. 346.

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for AI&A as a significant (albeit long overdue4) improvement.5 The Commission had proposed only one certificate for all AI&A6, but the final version of the Regulation contains two types of certificates – in Annex VIII for cases of divorce or legal separation and in Annex IX for matters of parental responsibility. They differ considerably in length, as the former has three pages and the latter ten. For Annex VIII, the information to be provided is, firstly, the Member State of origin and whether it had jurisdiction in accordance with Section 1 of Chapter II of the Regulation. As a positive answer amounts to ticking the ‘yes’ box without any explanation; Fitchen observes that for this reason the jurisdictional control may be less effective that the legislators may have wished7. One should further indicate a court or a competent authority issuing the certificate, nature of the document (authentic instrument or agreement), object of the authentic instrument or agreement (divorce or legal separation), information on marriage (spouses, date, country and place of marriage). Additional information in case of authentic instruments are: public authority or other authority empowered for that purpose which has drawn up or registered the authentic instrument, date on which the authentic instrument was drawn up by the authority, a date on which the authentic instrument was registered in the Member State of origin and a date as of which the authentic instrument has binding legal effect in the Member State of origin. In case of agreements it is necessary to indicate: the public authority which registered the agreement, a date of registration of the agreement, reference number in the register and a date as of which the agreement has binding legal effect in the Member State of origin.

3

In case of Annex IX related to parental responsibility, Art. 66(1) Brussels IIter requires explicitly that the certificate contain a summary of the enforceable obligation contained in the authentic instrument or agreement. As Fitchen observes, this requirement seems to be actual only if the enforcement is aimed.8 Further required information is: Member State of origin, whether the Member State of origin had jurisdiction under Section 1 of Chapter II of the Regulation (only box ‘yes’, without any explication), a court or a competent authority issuing the certificate, nature of the document, parties to the authentic instrument or agreement, a child (or children) covered by the authentic instrument or agreement. Furher details on rights of custody/access or other rights are required: to which party(ies) they were attributed or agreed in the authentic instrument or agreement and whether the authentic instrument or agreement entails the handover of the child. It is also necessary to indicate whether the child was capable of forming his or her own views and whether the child capable of forming his or her own views was given a genuine and effective opportunity to express his or her views. If the answer is negative, the reasons should be given. Finally, data on authority drawing up or registering, date as of which the agreement has binding legal effect in the Member State of origin should be indicated. The last piece of information required is the date from which the authentic instrument or agreement is enforcable in the Member State of origin (with different options for partial enforceability).

4

Art. 66(2) Brussels IIter provides for two conditions under which a certificate may be issued and an additional condition specific to matters of parental responsibility. The first condition is that the Member State which has authorised a public authority or other body to formally draw up or register an authentic instrument or to register a contract has jurisdiction under Chapter II. Secondly, the authentic instrument or agreement in question must have binding legal effect in that Member State. The court or competent authority must check both conditions and cannot issue a certificate if they are not met. There is also a third condition, specific to parental responsibility cases. According to Art. 66(3) Brussels IIter the certificate may not be issued if there are indications that the content of the authentic instrument or agreement is contrary to the best interests of the child. Fitchen assesses Art. 66(3) Brussels IIter as vague asking what is meant by ‘indications’ in the context of such an ex parte application. These conditions also appear twice in the content of the certificates: once in the form of an information note in a box at the very beginning of the certificate (as a warning to the certification body). In addition, in the specific points, it must be stated that the Member State of origin has the authority

5

4 Fitchen, The Private International Law of Authentic Instruments (2020), p. 374. 5 Fitchen, The Private International Law of Authentic Instruments (2020), p. 374. 6 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, Annex III. 7 Fitchen, The Private International Law of Authentic Instruments (2020), p. 376–377. 8 Fitchen, The Private International Law of Authentic Instruments (2020), p. 375.

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Art. 67 Brussels IIter Rectification and withdrawal of the certificate under Section 1 of Chapter II of the Regulation and the daily date from which the authentic instrument or contract has binding legal effect in the Member State of origin. Fitchen observes that it seems advisable that an authentic instrument refer to the necessary jurisdiction under the Regulation to assist later cross-border applications.9 6

The certificate should be issued by the court or competent authority of the Member State of origin as communicated to the Commission pursuant to Art. 103 Brussels IIter. According to this provision The Member States shall communicate the information to the Commission by 23 April 2021. The Commission shall make the information publicly available through appropriate means, including through the European e-Justice Portal. According to Art. 66(4) Brussels IIter the certificate shall be completed in the language of the authentic instrument or agreement. The court or competent authority may also, at the request of the party, issue a certificate in another official language of the institutions of the European Union. They are however, not obliged to provide a translation or transliteration of the translatable content of the free text fields. If they choose not to cover them, these costs must be borne by the applicant.

Article 67 Rectification and withdrawal of the certificate 1. The court or competent authority of the Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application, and may, of its own motion, rectify the certificate where, due to a material error or omission, there is a discrepancy between the authentic instrument or agreement and the certificate. 2. The court or competent authority referred to in paragraph 1 of this Article shall, upon application or of its own motion, withdraw the certificate where it was wrongly granted, having regard to the requirements laid down in Article 66. 3. The procedure, including any appeal, with regard to the rectification or withdrawal of the certificate shall be governed by the law of the Member State of origin. 1

Art. 67 Brussels IIter regulates the procedure for rectification and withdrawal of the certificate. The Commission had proposed that the certificate procedure should apply mutatis mutandis for these purposes, but in the final version a separate legal provision was introduced. The authority responsible for rectification or withdrawal of the certificate may be the same authority that issued the certificate or another. It should be communicated by Member States to the Commission on the basis of Art. 103 Brussels IIter. It is worth to note that Art. 103 (1) (b) Brussels IIter does not mention Art. 67 as it requires that Member States inform about “the courts competent to rectify certificates as referred to in Art. 37(1), Art. 48(1), 49, and Art. 66(3) in conjunction with Art. 37(1)”. But it appears, however, to be an obvious clerical error. The rectification or withdrawal of the certificate can happen on the application or of own motion of the authority. The procedure with regard to the rectification or withdrawal of the certificate shall be governed by the law of the Member State of origin (including any appeal). As Fitchen rightly observes if the authority should be a notary it is probable that Art. 67 Brussels IIter can be applied quickly as usually there is no appeal structure and notaries will not wish to prolong an error that could expose him to legal liability.1

9 Fitchen, The Private International Law of Authentic Instruments (2020), p. 376. 1 Fitchen, The Private International Law of Authentic Instruments (2020), p. 378.

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Article 68 Grounds for refusal of recognition or enforcement 1. The recognition of an authentic instrument or agreement on legal separation or divorce shall be refused if: (a) such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked; (b) it is irreconcilable with a decision, an authentic instrument or agreement between the same parties in the Member State in which recognition is invoked; or (c) it is irreconcilable with an earlier decision, authentic instrument or agreement given in another Member State or in a non-Member State between the same parties, provided that the earlier decision, authentic instrument or agreement fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked. 2. The recognition or enforcement of an authentic instrument or agreement in matters of parental responsibility shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the best interests of the child; (b) upon application by any person claiming that the authentic instrument or agreement infringes his or her parental responsibility, if the authentic instrument was drawn up or registered, or the agreement was concluded and registered, without that person having been involved; (c) if and to the extent that it is irreconcilable with a later decision, authentic instrument or agreement in matters of parental responsibility given in the Member State in which recognition is invoked or enforcement is sought; (d) if and to the extent that it is irreconcilable with a later decision, authentic instrument or agreement in matters of parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later decision, authentic instrument or agreement fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked or enforcement is sought. 3. The recognition or enforcement of an authentic instrument or agreement in matters of parental responsibility may be refused if the authentic instrument was formally drawn up or registered, or the agreement was registered, without the child who is capable of forming his or her own views having been given an opportunity to express his or her views. Explicit listing of grounds for refusal of recognition or enforcement of AI&A is another novelty of 1 the Brussels IIter. In Brussels IIbis the requirement that AI&A “shall be recognised and declared enforceable under the same conditions as judgments” referred to grounds for refusal provided for judgments. The Brussels IIter contains its own exhaustive list of such grounds for issuing an AI&A. This list is broadly similar to the list of grounds for refusal of recognition and enforcement contained in Arts. 38 and 39 Brussels IIter.1 However, these grounds have been selected and modified for the legal specificity of AI&A. The comments on these provisions [Arts. 38 and 39 Brussels IIter] will therefore also be useful for AI&A, with possible modifications due to the specificities of AI&A. In the case of divorce and legal separation there are three mandatory grounds for refusal of recognition, and in the case of parental responsibility there are four mandatory and one optional ground for refusal of recognition or enforcement. The Recital 55 declares that the recognition and enforcement of decisions, authentic instruments and agreements given in a Member State should be based on the principle of mutual trust what means that the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation which is to facilitate recognition and enforcement and to effectively protect the best interests of the child.

1 Fitchen observes also that there is a high level of continuity between Article 68(1) and (2) Brussels IIter and Arts. 22 and 23 Brussels IIbis Regulation.

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Art. 68 Brussels IIter Grounds for refusal of recognition or enforcement 2

Recognition or enforcement of AI&A concerning legal separation or divorce can be refused in three cases. These are similar to those for court decisions. The main difference is that in the case of the latter there are four such grounds. The one specific only to judgments, which also has been found not to be directly applicable in the context of AI&A under the Brussels IIbis Regulation,2 is where the case when the decision was given in default of appearance with deficiencies in service precluding a proper defence.3 The other three grounds for refusal are: public policy clause, irreconcilability with other act between the same parties in the Member State in which recognition is invoked and irreconcilability with an earlier act given in another Member State or in a non-Member State between the same parties. A first ground for refusal is a situation in which a recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked. Fore a detailed comment see the one to Art. 38 and 39(1)(a) Brussels IIter. Two further grounds relate to irreconcilability. The careful wording of AI&A section in Brussels IIter is seen in this provision. Due to the generality of the reference to judgments provisions in Brussels IIbis, a debate arose as to whether the irreconcilability of judgments applies only to judicial decisions or also to authentic instrument and agreements. Brussels IIter explicitly states that it relates to a later decision, authentic instrument or agreement. Fitchen called this extension a welcome development in terms of legal clarity.4

3

In the case of parental responsibility, there are four mandatory grounds for refusing to recognise or enforce a judgment and one optional ground. As far as the mandatory grounds are concerned, three of them are the same as for divorce and legal separation (with the classic requirement that the best interests of the child must be taken into account when examining under the public policy clause). Furthermore, recognition or enforcement shall be refused on the application of a person claiming that an authentic instrument or an agreement infringes his parental responsibility, if the authentic instrument was drawn up or registered or the agreement was concluded and registered without that person having been involved. As Fitchen pointly observes the recast has changed the earlier deprivation of an opportunity to be heard into a failure to be involved in the drawing-up or registering of an authentic instrument.5

4

The optional ground for refusal concerns the hearing of the child. According to Art. 68(3) Brussels IIter the recognition or enforcement of an authentic instrument or agreement in matters of parental responsibility may be refused if the authentic instrument was formally drawn up or registered, or the agreement was registered, without the child who is capable of forming his or her own views having been given an opportunity to express his or her views. As Recital 71 explains the obligation to provide the child with the opportunity to express his or her views under this Regulation should not apply to authentic instruments and agreements. But it adds that the right of the child to express his or her views should continue to apply pursuant to Art. 24 of the Charter and in light of Art. 12 of the UN Convention on the Rights of the Child as implemented by national law and procedure. The fact that the child was not given the opportunity to express his or her views should not automatically be a ground of refusal. The authority has a discretion in this regard. In Brussels IIbis the ground was mandatory (with a possible exception in case of urgency) and referring to the fundamental principles of procedure of Member States in which recognition is sought.6

2 Fitchen, The Private International Law of Authentic Instruments (2020), p. 362. 3 Art. 38(b) Brussels IIter: where it was given in default of appearance with defects in service 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 decision unequivocally. 4 Fitchen, The Private International Law of Authentic Instruments (2020), p. 379. 5 Fitchen, The Private International Law of Authentic Instruments (2020), p. 380. 6 Art. 23 Brussels IIbis: A judgment relating to parental responsibility shall not be recognised: (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.

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Section 5 Other provisions (Art. 69–Art. 75)

Article 69 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 point (a) of Article 38 and point (a) of Article 39 may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14. I. History . . . . . . . . . . . . . . . . . . . . . . II. Structure . . . . . . . . . . . . . . . . . . . . .

1 4

VI. Prohibition to review jurisdiction, ‘incidental questions’ (Art. 16), and lis alibi pendens

14

III. Rule and consequence . . . . . . . . . . . . .

5

VII. Mandatory nature of Art. 69 . . . . . . . . . 18

IV. The underlying principle of mutual trust (in the application of rules on jurisdiction) .

8

VIII. Limited recourse to review of jurisdiction of the court of origin . . . . . . . . . . . . . . . 19

V. Art. 69 and decisions with ‘cross-border effect’: urgent provisional measures (Art. 15) . 11

IX. Nordic States . . . . . . . . . . . . . . . . . . 23

Bibliography: Carbone/Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale. Il Regolamento UE n. 1215/2012 (2016); Carbone, Brevi riflessioni sull’abuso del diritto comunitario: commercio internazionale ed esercizio delle libertà individuali. Diritto del commercio internazionale (2011) 67; Carpaneto, Autonomia privata e relazioni familiari nel diritto dell’Unione europea (2020); Crawford/Carruthers, Connection and Coherence between and among European Instruments in the Private International Law of Obligations. The International and Comparative Law Quarterly (2014) 1; Domej, Recognition and Enforcement of Judgments (Civil Law), in: Basedow/Rühl/De Miguel Asensio (eds), Encyclopedia of Private International Law, Volume II (2017), p. 1471; Feraci, Riconoscimento ed esecuzione all’estero dei provvedimenti provvisori in materia familiare: alcune riflessioni sulla sentenza Purrucker. RDIPP (2011) 107; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Francq/Mankowski, Article 45, in: Magnus/Mankowski (eds), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 863; González Beilfuss, What’s New in the Regulation (EU) No 2019/1111?, YPIL XXII (2020/2021), 95; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); Hausmann, Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II). EuLF (2000/2001) 345; Hess/ Pfeiffer, Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law, Study of Policy Department C: Citizens’ Rights and Constitutional Affairs of the European Parliament (2011); Honorati, Purrucker I e II ed il regime speciale dei provvedimenti provvisori e cautelari a tutela dei minori. Int’l Lis (2011) 66; Honorati, Il ritorno del minore sottratto e il rischio grave di pregiudizio ai sensi dell’ art. 13 par. 1 lett. B della Convenzione dell’Aja del 1980. RDIPP (2020), 796; Lazic´/Pretelli, Recognition and Enforcement Procedures in the Brussels II ter Regulation, YPIL XXII (2020/2021), 155; Lazic´/Schrama, Relations with Other Instruments, Transitional and Final provisions, in: Lazic´ (ed), Regulation Brussels IIbis (2018), p. 303; M. Maresca, Artt. 64–67, in: Bariatti (ed), Commentario alla Legge 31 maggio 1995, n. 218, Riforma del sistema italiano di diritto internazionale privato. Le nuove leggi civili commentate (1996) 1460; Mari, Il diritto processuale civile della Convenzione di Bruxelles (1999); Muir Watt, Sanctionner ou circuler? Les conséquences sur le terrain des effets des jugements de la méconnaissance par le juge second saisi des règles relatives à la litispendance. RCDIP (2019) 495; Ní Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/1111, YPIL XXII (2020/2021),117, 134; Pirrung, Grundsatzurteil des EuGH zur Durchsetzung einstweiliger Maßnahmen in Sorgerechtssachen in anderen Mitgliedstaaten nach der EuEheVO. IPRax (2011) 351; Pretelli, Provisional and Protective Measures in the European Civil Procedure of the Brussels I System, in: Lazic´/Stuij (eds), Brussels Ibis Regulation. Changes and Challenges of the Renewed Procedural Scheme (2017), p. 97; Pretelli, Provisional Measures in Family Law and the Brussels II ter Regulation, in YPIL XX (2018/2019), 113; Ricci, Article 39. Prohibition of Review of Jurisdiction of the Court of Origin, in: Viarengo/Franzina (eds), The EU Regulations on the Property Regimes of International Couples (2020), p. 360; Salerno, La giurisdizione italiana in materia cautelare (1993); Sandrini, Tutela cautelare in funzione di giudizi esteri (2012); Siehr, Article 24, in: Magnus/Mankowski (eds), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314; Tridimas, Abuse of Rights in EU Law: Some Reflections with Particular Reference to Financial Law, in: de la Feria/Vogenauer

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Art. 69 Brussels IIter Prohibition of review of jurisdiction of the court of origin (eds), Prohibition of Abuse of Law A New General Principle of EU Law? (2011), p. 169; Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia (2012); Weller, Article 22. Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, in: Althammer (ed), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 168; Weller, Article 24. Prohibition of Review of Jurisdiction of the Court of Origin, in: Althammer (ed), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 180.

I. History 1

Art. 69 Brussels IIter Regulation* replicates in substance Art. 24 Brussels IIbis Regulation and its previous normative antecedents.1 It does not introduce any new substantive rule and confirms a general approach2 of the European judicial space grounded on the principle of mutual trust3 between courts of different Member States whereby authorities other than the one of origin must take for granted that such a court of origin has correctly applied the relevant uniform rules on jurisdiction.4

2

The existence of similar provisions in other uniform instruments (albeit not in all5) governing jurisdiction, recognition and enforcement of decisions suggests taking into consideration – mutatis mutandis and within the limits of consistency with the underlying principle of mutual trust contextualized in the specific instrument – decisions and scholarship arguments developed in relation to such other regulations.6

* Paras. I to V are attributed to Ilaria Queirolo, and paras. VI to IX to Stefano Dominelli. 1 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 160, 30.6.2000, p. 19, Art. 17, and 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 – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, in OJ C 221, 16.7.1998, p. 2, Art. 16. 2 On the consistency of the rule with the classic methodologies of the European Judicial space, specifically taking note of the ‘Brussels regime’ already established in 1968 with the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Consolidated version), in OJ L 299, 31.12.1972, p. 32, see in the scholarship Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 441, and Siehr, Article 24, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314 note 1. 3 Extensively in the scholarship, see ex multis Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia (2012), p. 270 ff. 4 Cf. 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, in OJ L 7, 10.1.2009, p. 1, Art. 24(1), second phrase; Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ L 351, 20.12.2012, p. 1, Art. 45(3); 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, in OJ L 183, 8.7.2016, p. 1, Art. 39(1); 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, in OJ L 183, 8.7.2016, p. 30, Art. 39(1). 5 For example, 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, in OJ L 201, 27.7.2012, p. 107, has no express provision on the prohibition to review the jurisdiction of the court of origin. 6 For a cross-reading of diverse regulations, which are however intended to create a ‘system’ between themselves, see Crawford/Carruthers, Connection and Coherence between and among European Instruments in the Private International Law of Obligations. The International and Comparative Law Quarterly (2014) 1.

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Art. 69 Brussels IIter

Despite the principle enshrined in Art. 69 Brussels IIter lying at the core of European judicial cooperation, there have been little decisions applying it in family law cases at the domestic level.7

3

II. Structure To some extent, Art. 69, first sentence, Brussels IIter Regulation containing the express rule prohibiting the revision of the jurisdiction of the court of origin, acquires in the context of the European judicial space a ‘declaratory nature’.8 A similar prohibition could already be inferred from the numerus clausus list of grounds to refuse recognition and enforcement of foreign judgments, amongst which the control of the jurisdiction of the court of origin is not listed. In this sense, the second sentence of the provision operates as a limitation to these listed grounds, making clear that the public policy exception may not extent to a review of jurisdiction of the first court.9 Additionally, a similar prohibition of review of jurisdiction of the court of origin might be inferred from the prohibition to review the decision as to its substance according to Art. 71 Brussels IIter Regulation as well.10

4

III. Rule and consequence Under Art. 69 Brussels IIter Regulation, the breach, or erroneous application of rules on jurisdiction by the court of origin does not constitute a limit to recognition and enforcement.11 This follows from the closed list of grounds to refuse recognition and enforcement offered by Art. 38, and 39 Brussels IIter. Complementary to these provisions, Art. 69 Brussels IIter ensures that the public policy ex7 Amongst those few cases addressing the rule, see BGH v. 8.4.2015 – XII ZB 148/14, NJW 2015, 1603 para. 14 (‘Nach Art. 21 Abs. 1 Brüssel IIa-VO gelte der Grundsatz, dass Entscheidungen auf dem Gebiet der elterlichen Verantwortung aus anderen Mitgliedstaaten automatisch anerkannt würden. Die im Verfahren nach Art. 21 Abs. 3 Brüssel IIa-VO zu prüfenden Anerkennungshindernisse für Entscheidungen betreffend die elterliche Verantwortung seien in Art. 23 Brüssel IIa-VO abschließend aufgeführt. Wenn das Gericht des Ursprungsstaats seine Zuständigkeit wie hier – gemäß Art. 8 ff. Brüssel IIa-VO bejaht habe, sei das Gericht des Anerkennungsstaats aufgrund des Grundsatzes des gegenseitigen Vertrauens, der der Anerkennungssystematik der Brüssel IIa-VO zugrunde liege, nach Art. 24 Brüssel IIa-VO an die Beurteilung der Zuständigkeit des Erstgerichts gebunden, weshalb die internationale Zuständigkeit des Gerichts des Ursprungsmitgliedstaats nicht überprüft werden dürfe. Ebenfalls irrelevant für das Anerkennungsverfahren sei der Einwand des Vaters, es entspreche dem Wohl des Kindes mehr, wenn es seinen Aufenthalt bei ihm statt bei der Mutter in Ungarn habe. Ebenso wenig sei im Anerkennungsverfahren der Wille des Kindes zu berücksichtigen. Denn Art. 26 Brüssel IIa-VO verbiete eine inhaltliche Nachprüfung der anzuerkennenden Entscheidung betreffend die elterliche Verantwortung. Ausgeschlossen sei damit auch die Prüfung, ob das Gericht des Ursprungsstaats die Tatsachen richtig festgestellt und gewürdigt habe’); BGH v. 9.2.2011 – XII ZB 182/08, NJW 2011, 855. In the case law of the Court of Justice, see Bianca Purrucker v Guillermo Vallés Pérez (Case C-256/09), ECLI:EU:C:2010:437 para 74 (‘as stated in Article 24 of the regulation, is that courts of other Member States may not review the assessment made by the first court of its jurisdiction’), on which see Pirrung, Grundsatzurteil des EuGH zur Durchsetzung einstweiliger Maßnahmen in Sorgerechtssachen in anderen Mitgliedstaaten nach der EuEheVO. IPRax (2011) 351; Honorati, Purrucker I e II ed il regime speciale dei provvedimenti provvisori e cautelari a tutela dei minori. Int’l Lis (2011) 66; Feraci, Riconoscimento ed esecuzione all’estero dei provvedimenti provvisori in materia familiare: alcune riflessioni sulla sentenza Purrucker. RDIPP (2011) 107; P v Q (Case C-455/15 PPU), ECLI:EU:C:2015:763 para. 42 ff., and Stefano Liberato v Luminita Luisa Grigorescu (Case C-386/14), ECLI:EU:C:2019:24, on which see Muir Watt, Sanctionner ou circuler? Les conséquences sur le terrain des effets des jugements de la méconnaissance par le juge second saisi des règles relatives à la litispendance. RCDIP (2019) 495. The provision has also been the subject matter of preliminary questions raised by national courts in Inga Rinau (Case C-195/08), in OJ C 171, 5.7.2008, p. 27. 8 Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 700 note 82. 9 Weller, Article 22. Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 168 note 4. See also, Lazic´/Pretelli, Recognition and Enforcement Procedures in the Brussels II ter Regulation, YPIL XXII (2020/2021), 155, 173, and Ní Shúilleabháin, An Overview of the Principal Reforms in Regulation (EU) 2019/1111, YPIL XXII (2020/2021),117, 134. 10 Weller, Prohibition of Review of Jurisdiction of the Court of Origin, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 180 Article 24, note 1. 11 Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24, note 1.

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5

Art. 69 Brussels IIter Prohibition of review of jurisdiction of the court of origin ception is not used as a way to reintroduce the possibility on the requested court to verify the jurisdiction of the court of origin (as the court of origin should already by itself verify its jurisdiction under Art. 18 Brussels IIter). 6

On its own, the effect and the consequence of Art. 69 Brussels IIter Regulation is that the requested court is prevented from relying on the public policy exception to oust common rules on direct jurisdiction laid down by the uniform instrument.12 Combined with the residual scope of exorbitant for a, the effect is that such domestic exorbitant rules on jurisdiction cannot be invoked by the requested court to refuse recognition and enforcement as well.13

7

Of course, the prohibition expressed in Art. 69 Brussels IIter Regulation does not mean that no remedy is given whatsoever in cases of lack of jurisdiction of the court of origin or wrongful application of heads of jurisdiction. Such challenges will have to be brought by the interested party before the courts of the State of origin of the decision, according to domestic procedural laws and time limits.14

IV. The underlying principle of mutual trust (in the application of rules on jurisdiction) 8

The principle of mutual trust surrounds the rules on recognition and enforcement of ‘decisions’15 in civil and commercial matters at large. Albeit the principle is declined in rules that differ in nature depending on the specific field, in particular affecting the exequatur procedure,16 mutual trust in the administration of justice in the Union justifies that decisions in matrimonial matters and in matters of parental responsibility given in a Member State are recognised without need for any recognition procedure.17 The expedite recognition and enforcement of decisions postulates a reduced number of grounds that can validly be invoked in the requested Member State to limit circulation of foreign judgments. The creation of common rules on direct jurisdiction ensures at a preliminary and theoretical level that one of the requirements imposed by some municipal rules on free movement of decisions – namely that the foreign court of origin held jurisdiction under the laws of the requested State18 – is generally satisfied and constitutes thus no limit. The relationship between direct rules on jurisdiction and free movement of decisions might be jeopardized, and would run against the estab12 In these terms, in the context of the 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, in OJ L 183, 8.7.2016, p. 1, and of the 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, in OJ L 183, 8.7.2016, p. 30, see Ricci, Prohibition of Review of Jurisdiction of the Court of Origin, in: Viarengo/Franzina (eds.), The EU Regulations on the Property Regimes of International Couples (2020), p. 360, Article 39, note 39.01. 13 To that effect, in the Brussels I regime, see Dieter Krombach v André Bamberski (Case C-7/98), ECLI:EU:C:2000: 164 para. 31 ff. Cf. Domej, Recognition and Enforcement of Judgments (Civil Law), in: Basedow/Rühl/De Miguel Asensio (eds.), Encyclopedia of Private International Law, Volume II (2017), p. 1471, at p. 1474 f. 14 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 700 note 82, and Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24 note 2. 15 Brussels IIter Regulation, Recital 55. 16 A consolidated legal experience and tradition between the Member States surely contributes in determining the choice of whether the stage of enforcement of foreign decision is more advanced, in the sense the exequatur is abolished – or more correctly postponed. For example, where the EU law-giver opted for an accelerated regime of recognition and enforcement of decision in the context of the Brussels Ibis Regulation, with the contemporary “Succession Regulation”, the first of its kind adopted in the European judicial space, the rules of enforcement were still drafted along the lines of the first Brussels I Regulation. 17 In these very terms, Brussels IIter Regulation, Recital 54. 18 Under Italian law, see Legge 31 maggio 1995, n. 218, Riforma del sistema italiano di diritto internazionale privato, in GU n.128 del 03-06-1995 – Suppl. Ordinario n. 68, Art. 64(a). On which, ex multis M. Maresca, Artt. 64–67, in: Bariatti (ed.), Commentario alla Legge 31 maggio 1995, n. 218, Riforma del sistema italiano di diritto internazionale privato. Le nuove leggi civili commentate (1996), 1460, 1471. In German law, see to similar effects, § 328(1)(1) ZPO, according to which ‘Die Anerkennung des Urteils eines ausländischen Gerichts ist ausgeschlossen … wenn die Gerichte des Staates, dem das ausländische Gericht angehört, nach den

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lishment of an “European” judicial space, if the courts of the place of recognition and enforcement would be allowed by operation of law to contest the evaluation of jurisdiction carried out by the ‘foreign European colleague’. To avoid such a scenario, the requested court cannot contest the court of the ‘other’ Member State 9 with the wrongful application of uniform rules on jurisdiction. This means that even if the court ruling on the case wrongfully19 applied the rules on jurisdiction contained in Art. 3 to Art. 14 Brussels IIter Regulation (on Art. 15, and Art. 16 Brussels IIter see infra), this circumstance alone taken will not be a prejudice to the free movement of the decision in matrimonial or parental responsibility matters. To some extent, this appears inherent in the system of jurisdiction and recognition and enforcement established at the supra-national level. In order to ensure that a ‘jurisdiction test’ does not re-enter from the ‘back door’, Art. 69 Brussels IIter Regulation makes clear that the public policy exception, one of the (few) statutory accepted limits to the free movement of decisions, is not used by the requested court to control in any manner whatsoever if the court of origin correctly grounded its jurisdiction. Occasionally, it must be warned that there might appear to be a theoretical inconsistency in the legal 10 framework. If the reduced number of grounds to refuse recognition and enforcement of decisions, as well as the prohibition to review the jurisdiction of the court of origin, find their most prominent basis in the creation of uniform rules on direct jurisdiction that bound all the Member states, such a regime of free movement does not depend on the decision itself being rendered by the court of a Member State being competent under direct rules on jurisdiction created by EU law. A residual application of domestic heads of jurisdiction is admitted by the Brussels IIter Regulation. Art. 69 Brussels IIter does not condition its applicability on the circumstance that the court of origin based its jurisdiction on uniform jurisdictional titles or domestic titles to which the Brussels IIter Regulation grants a limited residual scope of application.20

V. Art. 69 and decisions with ‘cross-border effect’: urgent provisional measures (Art. 15) By its nature, the prohibition to review the jurisdiction of the court of origin presupposes that a decision can move within the European judicial space according the rules enshrined in the regulation. This is generally not the case for urgent provisional measures adopted by courts when jurisdiction as to the substance of the matter is granted by the Regulation to courts of another Member State (with the exception of ‘measures ordered in accordance with Art. 27(5) Brussels Iiter in conjunction with Art. 15 Brussels IIter, to which some extra-territorial effect is granted).21 As clearly pointed out in Recital 30 Brussels IIter, ‘This Regulation should not prevent the courts of a Member State not having jurisdiction over the substance of the matter from taking provisional, including protective, measures in urgent cases, with regard to the person or property of a child present in that Member State. Those measures should not be recognised and enforced in any other Member State under this Regulation, with the exception of measures taken to protect the child from a grave risk as referred to in point (b) of Art. 13(1) of the 1980 Hague Convention. Measures taken to protect the child from such risk deutschen Gesetzen nicht zuständig sind’. In general, see Domej, Recognition and Enforcement of Judgments (Civil Law), p. 1474. 19 Cf. Ricci, Prohibition of Review of Jurisdiction of the Court of Origin, Article 39 note 39.02. 20 Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II). EuLF (2000/2001), 345, 348, and Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24 note 2. 21 According to the Brussels IIter Regulation, Art. 2(1)(b), a ‘decision’ for the purposes of Chapter IV on recognition and enforcement includes decisions given by courts having jurisdiction as to the substance of the matter under the Regulation, and provisional measures adopted when jurisdiction as to the substance if for another court in cases of return of the child ex Art. 15 and Art. 27(5) Brussels IIter Regulation. Cf. Pretelli, Provisional Measures in Family Law and the Brussels II ter Regulation, in YPIL XX (2018/2019), 113, at 141 ff.; González Beilfuss, What’s New in the Regulation (EU) No 2019/1111?, YPIL XXII (2020/2021), 95, 113, and Lazic´/Pretelli, Recognition and Enforcement Procedures in the Brussels II ter Regulation, 169.

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Art. 69 Brussels IIter Prohibition of review of jurisdiction of the court of origin should remain in force until a court of the Member State of the habitual residence of the child has taken the measures it considers appropriate. Insofar as the protection of the best interests of the child so requires, the court should inform, directly or through the Central Authorities, the court of the Member State having jurisdiction over the substance of the matter under this Regulation about the measures taken. The failure to provide such information should, however, not as such be a ground for the non-recognition of the measure’.22 12

To some extent, the lack of cross-border effects of provisional measures adopted by the non-competent court23 seems to justify the wording of Art. 69 Brussels IIter. The provision, in fact, establishes a prohibition to review jurisdiction under the focal lens of the public policy exception only for heads of jurisdiction contained in Articles from 8 to 14 Brussels IIter. In this sense, Art. 15 Brussels IIter Regulation on urgent provisional matters adopted by the non-competent court seems at first sight to ‘escape’ the prohibition of reviewing the jurisdiction of the court of origin. In the Court’s eye, uniform rules on recognition and enforcement (amongst which the common provisions where current Art. 69 Brussels IIter is contained) are not destined to be applied to urgent and provisional measures adopted by the court that is not competent on the merits.24

13

In some circumstances, it may be necessary to ‘verify’25 (rather than review) the jurisdiction of the court of origin, to determine for example if the decision has been adopted by a court of origin having 22 See also Recital 59 Brussels IIter Regulation, writing that ‘Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, the circulation of those measures should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the decision containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, their circulation should be confined, under this Regulation, to measures taken in international child abduction cases and aimed at protecting the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention. Those measures should apply until a court of a Member State having jurisdiction over the substance of the matter under this Regulation has taken the measures it considers appropriate’. Recently, on Art. 13(1) of the 1980 Hague Convention, Honorati, Il ritorno del minore sottratto e il rischio grave di pregiudizio ai sensi dell’art. 13 par. 1 lett. B della Convenzione dell’Aja del 1980. RDIPP (2020), 796. 23 On the matter, see in the case law rendered on the Brussels IIbis Regulation Bianca Purrucker v Guillermo Vallés Pérez (Case C-256/09) para. 54 ff. 24 Bianca Purrucker v Guillermo Vallés Pérez (Case C-256/09) para. 83 (‘… the system of recognition and enforcement provided for by Regulation No 2201/2003 is not applicable to measures which fall within the scope of Article 20 of that regulation’). 25 Cf. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ 16.1.2001, p. 1, whose Art. 31, replicating Art. 24 of the 1968 Brussels Convention, allowed for application of provisional measures available under domestic the law, even if courts of another Member State had jurisdiction as to the substance under the regulation. In its case law, the Court of Justice did address the issue of the ‘verification’ of the jurisdiction of the court of origin adopting provisional measures based on domestic law. In Hans-Hermann Mietz v Intership Yachting Sneek BV (Case C-99/96), ECLI:EU:C:1999:202, the Court affirmed that the requested court had to determine, in the first place, if the order at hand has been delivered in a procedure on the merits of the case. If not, if the foreign order satisfies the ‘European notion’ (on which see Salerno, La giurisdizione italiana in materia cautelare (1993), p. 206 ff.) for being considered a provisional measure, the requested court will have to assume that the foreign court has based its jurisdiction on the special rule on provisional measures. If the foreign decision does not fulfil the ‘European’ characteristics of provisional measures, no uniform rule will find application. Nonetheless, it must be reminded that the Brussels Convention and Regulation 44/01 did not set any specific limit as per the extra-territorial effects of provisional measures adopted by the court not having jurisdiction as to the substance (contrary to the Brussels Ibis Regulation, which has changed the system closer to the rules on extra-territoriality now contained in Art. 15 Brussels IIter; cf. Carbone/Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale. Il Regolamento UE n. 1215/2012 (2016), p. 268 ff.). In the scholarship, on the limited possibility to verify the jurisdiction of the court of origin to the extent the requested decision does not clearly identify the head of jurisdiction adopted by the said court, see Pretelli, Provisional and Protective Measures in the European Civil Procedure of the Brussels I System, in: Lazic´/Stuij (eds.), Brussels Ibis Regulation. Changes and Challenges of the Renewed Procedural Scheme (2017), p. 97 ff.;

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jurisdiction as to the substance under the Regulation, or if the decision does fall within the scope of application of Art. 15 Brussels IIter Regulation.26 As argued by the Court of Justice, the prohibition to review the jurisdiction of the court of origin ‘does not preclude the possibility that a court to which a judgment is submitted which does not contain material which unquestionably demonstrates the substantive jurisdiction of the court of origin may determine whether it is evident from that judgment that the court of origin intended to base its jurisdiction on a provision of ’ the Brussels IIter Regulation’. In other words, ‘to make such a determination is not to review the jurisdiction of the court of origin but merely to ascertain the basis on which that court considered itself competent’.27

VI. Prohibition to review jurisdiction, ‘incidental questions’ (Art. 16), and lis alibi pendens Reference to only Articles from 3 to 14 Brussels IIter raises the question of the relationship between Art. 69 Brussels IIter and ‘incidental questions’, as well as on its relationship with rules that are not rules on jurisdiction strictly speaking – such as rules on lis alibi pendens. At the same time, as addressed above, the exclusion of the rules on urgent provisions measures adopted by the court not having jurisdiction on the merits from the scope of application of Art. 69 Brussels IIter seems to find its justification in the circumstance that such orders lack extra-territorial effects and are excluded from the rules on cross-border recognition and enforcement established by the instrument.

14

Concerning the first of the two points highlighted, Art. 16 Brussels IIter regulation is not comprised 15 by those rules for which Art. 69 Brussels IIter excludes a review as to jurisdiction of the court of origin. According to Art. 16 Brussels IIter, for proceedings outside the scope of application of the Regulation, ‘incidental questions’ falling within the scope of parental responsibility matters may be addressed by the seised court. That court which would not have jurisdiction over the incidental parental responsibility matter can – with effects limited to that proceedings – rule on the incidental question. Specific case-law dwells on the second issue of coordination mentioned above. In Liberato28 the Court of Justice of the European Union excluded that a violation of the rules on lis alibi pendens could have been invoked as a ground of public policy to refuse recognition and enforcement of the decision.29 This despite said rules are not mentioned by (current) Art. 69 Brussels IIter Regulation, which is applicable to ‘rules on jurisdiction’, and not to rules on coordination of proceedings as well.30 If the consideration that rules on lis pendens, because of their inclusion in Chapter devoted to ‘jurisdiction’ did fall within the scope of application of former Art. 24 Brussels II bis Regulation,31 the same principle may be transposed in the context of the new regulation.

16

In this sense, in light of the case-law of the Court of Justice of the European Union, Art. 69 Brussels IIter Regulation should be interpreted as applying to rules on jurisdiction broadly understood.32

17

VII. Mandatory nature of Art. 69 Art. 69 Brussels IIter provides that the jurisdiction of the (European) court of origin ‘may’ not be re- 18 viewed. An interpretation of the verb ‘may’ – which has been used instead of the imperative ‘shall’ – in light of the fundamental principles of mutual trust and free movement of decisions, together with

26 27 28 29 30 31 32

Sandrini, Tutela cautelare in funzione di giudizi esteri (2012), p. 355 ff.; Mari, Il diritto processuale civile della Convenzione di Bruxelles (1999), p. 727 ff. Bianca Purrucker v Guillermo Vallés Pérez (Case C-256/09) para. 83. Bianca Purrucker v Guillermo Vallés Pérez (Case C-256/09) para. 75. Stefano Liberato v Luminita Luisa Grigorescu (Case C-386/14), ECLI:EU:C:2019:24. Stefano Liberato v Luminita Luisa Grigorescu (Case C-386/14), para. 45 ff. Stefano Liberato v Luminita Luisa Grigorescu (Case C-386/14), para. 50. Stefano Liberato v Luminita Luisa Grigorescu (Case C-386/14), para. 50. Also in the sense that the reference to the specific provisions should be interpreted as ‘rules on jurisdiction as a whole’, Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24 note 3.

Dominelli

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Art. 69 Brussels IIter Prohibition of review of jurisdiction of the court of origin a linguistic comparison of different versions of the regulation,33 makes rather clear that Art. 69 Brussels IIter is mandatory in nature and that its application does not depend on the will of the parties, nor bears any discretional power for the courts of the requested Member State. Requested courts, even regardless of any indication to the contrary provided for in domestic law, will have to apply Art. 69 Brussels IIter ex officio, thus refrain from review the jurisdiction of the court of origin of the decision.34

VIII. Limited recourse to review of jurisdiction of the court of origin 19

Consistently with the relevant domestic law of the requested court, there might be a limited possibility to review the jurisdiction of the court of origin if the decision at hand falls outside the material scope of application of the Brussels IIter Regulation (and provided that no other EU uniform instrument containing a similar rule is applicable), or if the decision to be recognised and enforced is rendered by a third State.35

20

Additionally, even where the Brussels IIter is fully applicable, it might be debated if and to what extent decisions obtained by fraud or by perjury might still be subject to the public policy exception.36 Leaving aside the scholarly case where the court of origin fraudulently grounds its otherwise nonexisting jurisdiction on the Brussels IIter Regulation to hear a case on matrimonial matters or on parental responsibility to the detriment of the jurisdiction of another Member State’s court, it could be questioned if any fraud or perjury by one or both parties concerning the circumstances that would ground the court’s jurisdiction might at a later stage be invoked by the requested court to refuse recognition or enforcement.37 The answer appears everything but easy. On the one side, it has been acquired in the European judicial space that – to some extent – parties can make use of their freedoms to ground the jurisdiction of the desired court, such as, for example, by moving their habitual residence before seizing the court.38 On the other side, there appears to be a clear interest in the protection of human rights if there is a manifest abuse of rights that might ‘trespass’ in the field of perjury or fraud by one party against the other. All in all, in a complex necessity to properly evaluate all elements of any case individually taken, it seems reasonable to argue that – as a way of exception – neither Art. 69 Brussels IIter or Arts. 38 and 39 Brussels IIter Regulation should be interpreted in such a way as to prohibit a review of jurisdiction of the court of origin under the public policy exception if it is immediately apparent that the jurisdiction of the court of origin is the result of perjury or fraud.39 In these cases, it would seem that the ground for non-recognition lies in the fraud itself, rather than on the decision on jurisdiction made by the foreign court.40 33 The Italian version writes that ‘Non si può procedere al riesame’. Similarly, the German version reads that ‘Die Zuständigkeit des Gerichts des Ursprungsmitgliedstaats darf nicht überprüft werden’. 34 Cf., in the context of the Brussels Ibis Regulation, Francq/Mankowski, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 863, Article 45 note 78. 35 Cf. Ricci, Prohibition of Review of Jurisdiction of the Court of Origin, Article 39 note 39.10. 36 Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24 note 3. 37 For a comprehensive study, also in comparative perspective, from which it emerges the practical relevance of frauds as procedural public policy exception in domestic jurisdictions applying the diverse EU regulations, see Hess/Pfeiffer, Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law, Study of Policy Department C: Citizens’ Rights and Constitutional Affairs of the European Parliament (2011). See also Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia, p. 141 ff. 38 On ‘indirect’ party autonomy in EU cross-border family law, see most recently Carpaneto, Autonomia privata e relazioni familiari nel diritto dell’Unione europea (2020), p. 78 ff., speaking of ‘strategic use’ of the rules on jurisdiction. On the relationship between ‘use of rights’ and ‘abuse’, see Tridimas, Abuse of Rights in EU Law: Some Reflections with Particular Reference to Financial Law, in: de la Feria/Vogenauer (eds.), Prohibition of Abuse of Law A New General Principle of EU Law? (2011), p. 169 and Carbone, Brevi riflessioni sull’abuso del diritto comunitario: commercio internazionale ed esercizio delle libertà individuali. Diritto del commercio internazionale (2011), 67. 39 Addressing the issue of fraud, Ricci, Prohibition of Review of Jurisdiction of the Court of Origin, Article 39 note 39.14.

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Art. 70 Brussels IIter

Of course, should anyone accede to the theory that fraud constitutes a limit to review the jurisdiction of the court of origin under the focal lens of the public policy exception, if the decision concerns a minor, the evaluation should be made also against the backdrop of the principle of the best interests of the child.

21

At the same time, as the law stands, it should be excluded that the requested court has any possibility to review the jurisdiction of the court of origin if it is assumed the first court has incorrectly applied rules on jurisdiction concerning parental responsibility, even to the detriment of the child best interests. Despite European international civil procedure in commercial matters allows to some extent to review the jurisdiction of the court of origin when it comes to decisions relating to so called ‘contractually weaker parties’ (and to the extent these have assumed the role of defendants in proceedings), or in matters falling within the scope of application of exclusive heads of jurisdiction, no similar solution is to be found in the Brussels IIter Regulation. In this last instrument, any ‘verification’ of the jurisdiction of the court of origin in parental responsibility matters, outside the strict limits above, is inconsistent with the normative framework – which has been left unchanged on the point since its original inception.

22

IX. Nordic States In Finland and Sweden, the Convention between Norway, Denmark, Finland, Iceland and Sweden containing international-private law provisions on marriage, adoption and guardianship with final protocol, prevails over the Brussels II regime.41 The prohibition to review the jurisdiction of the court of origin at the stage of recognition and enforcement must thus be approached under that specific text,42 and in respect to its original scope of application.

Article 70 Differences in applicable law The recognition of a decision in matrimonial matters may not be refused because the law of the Member State in which such recognition is invoked would not allow divorce, legal separation or marriage annulment on the same facts. I. History . . . . . . . . . . . . . . . . . . . . . . . II. Content and operation . . . . . . . . . . . . . .

1 5

III. Ratio . . . . . . . . . . . . . . . . . . . . . . . . 9 IV. Scope of application . . . . . . . . . . . . . . . 10

40 In these terms, Weller, Prohibition of Review of Jurisdiction of the Court of Origin, Article 24 note 3. 41 Declaration of Sweden and Finland pursuant to Article 36(2)(a) of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 58, 28.2.2001, p. 22, on which see Lazic´/Schrama, Relations with Other Instruments, Transitional and Final provisions, in: Lazic´ (ed.), Regulation Brussels IIbis (2018), p. 303, p. 305. See also Art. 94 Brussels IIter Regulation, according to which ‘… this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of Regulation (EC) No 2201/2003 which have been concluded between two or more Member States and relate to matters governed by this Regulation. Finland and Sweden were provided with 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 that Regulation. Their respective declarations have been published … They may be withdrawn, in whole or in part, at any moment by the said Member States … Decisions handed down in any of the Nordic States which have made the declaration (above) under a forum of jurisdiction corresponding to one of those laid down in Chapter II, shall be recognised and enforced in the other Member States under the rules laid down in Section 1 of Chapter IV.’. 42 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 700 note 84.

Dominelli and Queirolo/Dominelli

515

23

Art. 70 Brussels IIter Differences in applicable law Bibliography: Borrás, Explanatory Report on the Convention, 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II). EuLF (2000/2001), 345; Jenard, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, in OJ C 59, 5.3.1979, p. 1; Joubert/Soleti, Articolo 36, in: Simons/Hausmann/Queirolo (a cura di), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 762; Martín Mazuelos, Artículo 41. Imposibilidad de revision en cuanto al fondo, in: Iglesias Buigues/Palao Moreno (dir), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 327; Mankowski, Article 52, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 963; Pocar, Explanatory Report to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ C 319, 23.12.2009, p. 1; Siehr, Article 25, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314; Weller, Article 22. Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 168; Weller, Article 25. Differences in Applicable Law, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 181.

I. History 1

Content wise and from a literal perspective, Art. 70 Brussels IIter Regulation* replicates almost unchanged the normative predecessors in the Brussels II (bis) Regulation(s),1 and in the 1998 Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters.2 No significant case-law at the domestic level or at the European Union law level appears to have applied the provision so far. Nonetheless, it seems that its interpretation may take into consideration similar provisions, albeit in different fields, or connected provisions.

2

In the first place, the prohibition to refuse recognition or enforcement based on the divergences in the applicable law and the lex fori seems coherent with the more general and broad prohibition established by Art. 71 Brussels IIter Regulation, whereby under no circumstances a decision given in another Member State may be reviewed as to its substance in the requested Member State. Refusing recognition and enforcement of a decision because the facts that give right to dissolve the marital bond in the State of origin are not foreseen or necessarily the same in the lex fori of the requested Member State may indirectly violate the prohibition to re-adjudicate a matter already decided by another court in the European judicial space.

3

Differently from other rules of the Brussels IIter Regulation, such as Art. 69 Brussels IIter Regulation that is also intended to ‘save’ foreign decisions rendered by courts that have incorrectly applied uniform or domestic heads of jurisdiction, Art. 70 Brussels IIter Regulation does not intend to ‘save mistakes’ committed abroad. Art. 70 Brussels IIter presupposes that a first court has rendered a correct decision, with which the second court would ‘not agree’ because of its own lex fori.3 * Paras. I and II are attributed to Ilaria Queirolo, and paras. III and IV to Stefano Dominelli. 1 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 160, 30.6.2000, p. 19, Art. 18; 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 OJ L 338, 23.12.2003, p. 1, Art. 25. 2 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 – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, in OJ C 221, 16.7.1998, p. 2, Art. 17. 3 Weller, Article 25. Differences in Applicable Law, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 181, note 1.

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Art. 70 Brussels IIter

At a certain point, the Brussels I rules have also dealt with divergences in laws as a ground to refuse 4 recognition and enforcement, despite the general principle being that of recognition even if a judgment applied a law other than the one which would have been applicable under the rules of private international law of the requested State.4 Art. 27(4) of the 1968 Brussels Convention5 allowed the requested court to refuse recognition or enforcement if the court of origin decided a preliminary question concerning i) the status or legal capacity of natural persons; ii) rights in property arising out of a matrimonial relationship; iii) wills or succession in a way that was inconsistent with conflict of laws solutions of the requested court. Nonetheless, the subsequent Brussels I Regulations have abandoned the possibility to avoid recognition or enforcement based on the different results reached by the foreign court to fully confirm the prohibition of substantive review, conflict of laws and applicable law questions included.6 More clearly in the sense that the prohibition to review as to the substance of the matter extends to the prohibition of review of the law applied by the court of origin, Art. 36 of the 2007 Lugano Convention subsumes such obligation under the prohibition to review as to the substance.7

II. Content and operation The prohibition to refuse recognition and enforcement of the foreign judgment because the law applied by the court of origin grants legal separation, divorce or annulment on grounds not foreseen in the lex fori8 is functional to realise the free movement of decisions with a limited number of grounds to refuse recognition or enforcement. The principle translates in the prohibition for the requested court to refuse recognition and enforcement only because the requested court, if seised on the same matter, would have adopted a different solution.9 As noted in the scholarship, EU law has ‘abolished’

4 In these terms, Jenard, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, in OJ C 59, 5.3.1979, p. 1, at p. 46. 5 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, Consolidated version, in OJ L 299, 31.12.1972, p. 32. 6 Cf. Joubert/Soleti, Articolo 36, in: Simons/Hausmann/Queirolo (a cura di), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 762, note 7. 7 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ L 339, 21.12.2007, p. 3, on which see Pocar, Explanatory Report to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ C 319, 23.12.2009, p. 1, note 140, writing that ‘Article 27(4) of the 1988 Convention allowed recognition to be refused if the court of origin, in order to decide a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession (all matters outside the scope of the Convention), had applied a rule different from the rule of private international law of the State in which the recognition was sought; it was felt that this rule was now superfluous, not least because of the progress made in the harmonisation of private international law in these areas in the European Community, and in particular the fact that the provision was absent from the Brussels II Regulation. It has not been included in the new Convention, so that it will not be possible in future to rely on this ground of refusal, which was a vestige of the review of the merits of a foreign judgment. Review as to substance is entirely excluded by Article 36 of the Convention, which reproduces the wording of the corresponding provision in the earlier Convention’. 8 Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II). EuLF (2000/2001), 345, 349. 9 Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 700, note 85. Cf., in the context of the Brussels I regime, Mankowski, Article 52, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 963, note 6. However, in more general terms, it seems that such a principle should also be read in light with approaches and solutions developed in EU conflict of laws, namely the Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, in OJ L 343, 29.12.2010, p. 10), whose Art. 13 provides that ‘Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation’.

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5

Art. 70 Brussels IIter Differences in applicable law the requirement of the application of the ‘correct law’ as a requirement for recognition and enforcement.10 6

Art. 70 Brussels IIter is strictly connected with the principle of non-review as to the substance of the matter,11 and, at the same time, limits the possibility for the requested Member State to make recourse to the public policy exception.12 Because of Art. 70 Brussels IIter, Member States with laws that make it more difficult to obtain legal separation, divorce or annulment of the matrimonial relationship are prevented from applying substantive or procedural public policy as a limit to recognition.13 For example,14 if a divorce is granted after one year of legal separation by the court of origin, the requested court cannot refuse recognition if divorce – in that system – is granted only after two years of legal separation.

7

Of course, this does not necessarily mean that the public policy exception is ousted in general.15 If the requirements to obtain separation (that might even be unknown in the requested Member State), divorce or annulment differ from those established in the lex fori, the requested Member State will have to accept the divergences between the laws and recognise the foreign decision. This, to the extent the public policy of the requested State is manifestly infringed because of other reasons, such as the case of unilateral divorce granted to only one spouse because of their gender could be. Here the public order infringement would refer to a non-discrimination issue rather than on the factual conditions to obtain legal separation, divorce or annulment. In this case, thus, it seems that the public policy exception may still be relied on by the requested court to refuse recognition or enforcement.

8

Some also argue that differences in laws ‘less grave’ than being considered under the hat of human rights violations might trigger the public policy exception as well, despite Art. 70 Brussels IIter Regulation. This could be the case of a consensual divorce to be recognised in a very conservative system.16

III. Ratio 9

The provision at hand was introduced to ‘meet the concerns of States with more tolerant internal provisions on divorce who fear[ed] that the judgments given by their courts might not [have been] recognised in another State because they are based on grounds unknown in the legislation of the State in which recognition is sought’.17 10 In these terms, Siehr, Article 25, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314, note 1. 11 Weller, Differences in Applicable Law, Article 25 note 1. On the prohibition to review as to the substance and applicable law, in the context of the Brussels I regime, see Mankowski (fn. 9), Article 52, note 6 ff. 12 Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27, note 76; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 445, and Weller, Differences in Applicable Law, Article 25 note 1. 13 Weller, Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 168, Article 22 note 4. In the context of cross-border successions, on the prohibition to review the substance of the foreign adjudicated case, in the sense the requested court is not allowed to neither examine facts and laws, both substantive and conflict of laws, applied, nor is it allowed to contest the lack of coincidence with the results the requested court would have arrived to in application of domestic law, see Martín Mazuelos, Artículo 41. Imposibilidad de revision en cuanto al fondo, in: Iglesias Buigues/Palao Moreno (dir), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 327. 14 Borrás, Explanatory Report, note 76, and Weller, Article 25. Differences in Applicable Law, note 2. 15 Siehr, Article 25, note 1, and Weller, Article 22. Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, note 4. 16 Weller, Grounds of Non-Recognition for Judgments Relating to Divorce, Legal Separation or Marriage Annulment, Article 22, note 4, and Weller, Differences in Applicable Law, Article 25 note 2. 17 Borrás, Explanatory Report, note 76. See also Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 700 note 85, and Weller, Differences in Applicable Law, Article 25 note 2.

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Chapter IV: Recognition and Enforcement

Art. 71 Brussels IIter

IV. Scope of application It stems very clearly from the wording of the provision that Art. 70 Brussels IIter Regulation has a defined scope of application ratione materiae. Art. 70 Brussels IIter does not refer to any question that falls within the scope of application of the instrument, but only to ‘matrimonial matters’. It has no general effect, even though parental responsibility matters remain ‘covered’ by the ordinary rules on public policy and prohibition to review the foreign decision as to the substance under Art. 71 Brussels IIter.

10

If Art. 70 Brussels IIter Regulation finds application ratione materiae, it must also be noted that the provision does not refer to ‘internal’ laws of the requested Member State, but generally refers to the ‘law’ of that State. The consequences following the omission of the (originally proposed) word is that both domestic substantive and private international law rules fall with the prohibition established by Art. 70 Brussels IIter.18

11

Article 71 Non-review as to substance Under no circumstances may a decision given in another Member State be reviewed as to its substance. I. History . . . . . . . . . . . . . . . . . . . . . . .

1

II. Content and purpose . . . . . . . . . . . . . . III. Imperative nature of Art. 71 Brussels IIter Regulation . . . . . . . . . . . . . . . . . . . . .

4 9

IV. Scope of application, and relationship with other provisions . . . . . . . . . . . . . . . . . 10

1. ‘Decisions’ for the purposes of the Brussels IIter Regulation . . . . . . . . . . . . 2. ‘Certified decisions’ only? . . . . . . . . . . . 3. Rebus sic stantibus, and temporary decisions 4. Non-review and public policy test . . . . . . 5. Decisions obtained by fraud or perjury . . .

. . . . .

11 13 15 17 19

Bibliography: Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27; Carbone/Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale, Il Regolamento UE n. 1215/2012 (2016); Collier, Fraud Still Unravels Foreign Judgments, The Cambridge Law Journal (1992) 441; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Francq/Mankowski, Article 45, in: Magnus/ Mankowski (eds), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 863; Gössl, The Public Policy Exception in the European Civil Justice System, EuLF (2016) 85; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II), EuLF (2000/2001) 345; Hess, Exequatur sur exequatur (ne) vaut? Der EuGH erweitertet die Freizügigkeit von Drittstaatenurteilen nach Art. 39 ff. EuGVVO, IPRax (2022) 349; Mankowski, Article 52, in: Magnus/Mankowski (eds), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 963; M. Mazuelos, Artículo 41. Imposibilidad de revision en cuanto al fondo, in: Iglesias Buigues/Palao Moreno (eds), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 327; McClean, Article 26, in: Magnus/Mankowski (eds), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314; Siehr, Das neue Haager Übereinkommen von 1996 über den Schutz von Kindern, RabelsZ (1998) 464; Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia (2012); Weller, Article 26. Non-Review as to Substance, in: Althammer (ed.), Brussels IIa Rome III Article-byArticle Commentary (2019), p. 183.

18 Borrás, Explanatory Report, note 76; Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 701 note 86, and Weller, Differences in Applicable Law, Article 25 note 3.

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Art. 71 Brussels IIter Non-review as to substance

I. History 1

Art. 71 Brussels IIter Regulation* replicates1 in wording its normative antecedents in Art. 26 Brussels IIbis Regulation2 and Art. 18 of the 1998 Brussels Convention.3

2

From a terminological perspective, current Art. 71 Brussels IIter Regulation updates its wording as, contrary to the Brussels IIbis Regulation where reference was made to ‘judgments’, the new recast text refers to ‘decisions’.

3

The golden rule enshrined in current Art. 71 Brussels IIter Regulation has been either invoked or applied in a number family law cases both at the European Union law level,4 as well as in some domestic decisions.5

II. Content and purpose 4

Free movement of decisions is pursued and guaranteed not only by providing a limited grounds to refuse recognition and enforcement of foreign decisions, but also by introducing a prohibition for the requested court to reassess both material (factual) and legal assessments that have already been done by the first court.6 To allow a reassessment of the decision at the enforcement stage would be to negate the principle of immediate recognition and disregard the values and functioning of the exequatur procedure.7 * Paras. I and II are attributed to Ilaria Queirolo, and paras. III to IV to Stefano Dominelli. 1 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 447. 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, in OJ L 338, 23.12.2003, p. 1. 3 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 – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, in OJ C 221, 16.7.1998, p. 2. 4 Health Service Executive v S.C. and A.C. (Case C-92/12 PPU), ECLI:EU:C:2012:255 para. 103; E. v B. (Case C-436/13), ECLI:EU:C:2014:2246 para. 34; Christophe Bohez v Ingrid Wiertz (Case C-4/14), ECLI:EU:C:2015: 563 para. 44; P v Q (Case C-455/15 PPU), ECLI:EU:C:2015:763 para. 39, and Hampshire County Council v C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU), ECLI:EU:C:2018:739 para. 91. 5 BGH 8.4.2015 – XII ZB 148/14, NJW 2015, 1603 para. 30; Supremo Tribunal de Justiça, acórdão de 20/01/ 2009 08B2777, CELEX: 82009PT0120(51), and Audiencia Provincial Zaragoza, 2.5.2012 – n. 232/2012, unalex ES-732. 6 McClean in Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 314, Article 26, note 1; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 701, note 87; Weller, Article 26. Non-Review as to Substance in Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 183, note 1; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 447; Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II), EuLF (2000/2001) 345, 348; Gössl, The Public Policy Exception in the European Civil Justice System, EuLF (2016) 85, 88. Cf. also referring to similar provisions in other regulations, Mankowski, Article 52, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 963, note 6; Martín Mazuelos, Artículo 41. Imposibilidad de revision en cuanto al fondo, in: Iglesias Buigues/Palao Moreno (eds.), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 327; Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia (2012), p. 27 ff. 7 Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27 para. 77; McClean, Article 26 note 2.

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Art. 71 Brussels IIter

Following Art. 71 Brussels IIter Regulation, the court of the requested State is not allowed to deter- 5 mine if the foreign court has correctly applied the substantive law or the private international law to the given case, nor if facts at the basis of the foreign decision have been correctly reconstructed, interpreted and qualified.8 The prohibition also extends to the application by the foreign court of procedural law: the requested court shall not verify what procedural rules have been applied, and how.9 The so called prohibition of a revision au fond must be read in light of the limited grounds to refuse 6 recognition and enforcement of foreign decisions, and in parallel to the prohibition for the second court to review the jurisdiction of the court of origin (even though this second rule, if expressly absent, might be inferred from the general prohibition of review as to substance). In this sense, as it stems from the above, it is noteworthy that that the title of Art. 71 Brussels IIter Regulation, and consequently its text, which do refer to ‘substance’ only,10 should not lead to the interpretation according to which the principle at hand only covers the merits already addressed by the foreign court.11 Of course, the application of the rule at hand to ‘procedural matters’ is not straightforward and, if 7 one would avoid an ‘extensive’ interpretation of Art. 71 Brussels IIter Regulation, a similar result could be reached by way of a teleological cross-interpretation of the instrument as a whole, more specifically by stressing the fact that denying recognition and enforcement is only allowed in given express circumstances. On this line of reasoning, Advocate General Jacobs in the context of the Brussels I regime, has argued that ‘… it would be stretching normal usage to construe the concept of the substance of a judgment as encompassing … unequivocally procedural elements as service and representation. The question accordingly arises whether, merely because procedural irregularities do not go to the substance of a judgment and hence do not fall within the prohibition in Art. 71 Brussels IIter, the court before which enforcement is sought is at liberty to investigate any alleged procedural irregularity … [The] grounds for refusing enforcement are set out exhaustively … and hence procedural irregularities cannot be investigated except to the extent that they fall within one of the grounds set out in those articles, notwithstanding the fact that such irregularities do not go to the substance of the judgment and hence are not covered by Art. [71]’.12 The consequence of Art. 71 Brussels IIter is that during the cross-border enforcement stage,13 a foreign decision will be treated by the second court just as if it would be a domestic decision rendered by another national court (save, of course, the limited possibilities to refuse recognition and enforcement under the postponed exequatur procedure). This partial assimilation of foreign decisions with internal ones is fundamental in the construction of a European judicial space: the Italian court, at the enforcement stage, will not discuss newly the case adjudicated by the foreign judge, just as it would not re-discuss an Italian judgment rendered by another Italian court. In other words, the requested court ‘must not re-decide the case by stepping into the shoes of the original court’, and it ‘must not refuse recognition for the simple reason that it would have decided the case differently had it been called to decide the case at all’.14 8 Carbone/Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale. Il Regolamento UE n. 1215/2012 (2016), p. 352 ff.; Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 701 note 87, and McClean, Article 26 note 3, and 5. 9 Mankowski (fn. 6), Article 52, note 8. McClean, Article 26, note 6. 10 Specifically arguing that (current) Art. 71 Brussels IIter Regulation does not ‘know’ a distinction between ‘merits’ and ‘procedure’, see McClean, Article 26 note 6. 11 This, despite various linguistic versions of the instruments do use the word merits (‘merito’, in the Italian one; ‘in der Sache’, in the German one). 12 Bernardus Hendrikman and Maria Feyen v Magenta Druck & Verlag GmbH (Case C-78/95), Opinion AG Jacob, ECLI:EU:C:1996:273 para. 46 f. 13 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 447. 14 In connection to the Brussels I regime, see in the case law Rudolfs Meroni v Recoletos Limited (Case C-559/14), ECLI:EU:C:2016:349 para. 41, writing that ‘it must be observed that, by not allowing any review of a foreign judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the Member State in which enforcement is sought from refusing to recognise or enforce that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been

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Art. 71 Brussels IIter Non-review as to substance

III. Imperative nature of Art. 71 Brussels IIter Regulation 9

Similar to other provisions of the Brussels IIter Regulation approaching a prohibition to review at the enforcement stage, Art. 71 Brussels IIter Regulation as well uses the term ‘may’, which could raise the question on whether the rule is mandatory in nature – as it clearly would be should have it used the verb ‘shall’. Considering the importance of the principle of non-revision of the foreign decision in the construction of the European judicial space, and taking into consideration other linguistic versions of the Brussels IIter Regulation (‘non può formare’, in Italian; ‘Eine … Entscheidung darf keinesfalls … nachgeprüft werden’, in German), the verb ‘may’ used by Art. 71 Brussels IIter Regulation should be interpreted as ‘shall’.15

IV. Scope of application, and relationship with other provisions 10

The prohibition to review the foreign decision is limited within the scope of application of the provision, which has to be reconstructed in light of the instrument as a whole. It may thus follow that, to some limited degree, a certain ‘verification’, rather than ‘review’, is still allowed – if not even imposed – by the Brussels IIter Regulation. 1. ‘Decisions’ for the purposes of the Brussels IIter Regulation

11

A prohibition to review foreign decisions presupposes the applicability of the Brussels IIter Regulation in general. In this sense, it is quite accepted the idea that the court requested of recognition or enforcement can ‘verify’ if the decision at hand, in the first place, falls within the scope of application of the instrument.16 Should, for example, the decision rule on the status filiationis, the regulation and its prohibition will not be applied ex proprio vigore due to the exclusions contained in Art. 1(4)(1). On the contrary, it bears no relevance for the purposes of the provision whether the court of origin did ground its jurisdiction on uniform heads of jurisdiction binding all Member States, or rather did ground its jurisdiction on domestic rules which do find residual application by virtue of Art. 6 and 14 Brussels IIter Regulation, in matrimonial and parental responsibility matters respectively.17

12

At the same time, ‘decisions’ not of a court of a Member State will not satisfy the definition of ‘decision’ in Art. 2(1) Brussels IIter Regulation. Still, solutions developed in the context of the Brussels I rule may to some extent guide the qualification issue here. The Court of Justice of the European Union, under the Brussels Ibis Regulation,18 has argued that an order for payment delivered by a court of a Member State on the basis of final judgments delivered in a third State constitutes a ‘judgment’ for the scope and purpose of the Brussels Ibis Regulation.19

15 16 17

18 19

seised of the dispute. Similarly, the court of the Member State in which recognition is sought may not review the accuracy of the findings of law or fact made by the court of the Member State of origin’. In the scholarship, cf. Mankowski (fn. 6), Article 52, note 6. See also Mankowski, Article 52, note 10, writing that ‘Res iudicata in the European system is res iudicata regardless whether the decision was rendered by a foreign court or by a domestic court’. Cf, in the context of the Brussels Ibis Regulation, Francq/Mankowski, Article 45, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 863. Already, McClean, Article 26 note 5. Referring to the Brussels IIbis Regulation and the prohibition to review the jurisdiction of the court of origin, cf. Hausmann, New International Procedure Law in Matrimonial Matters in the European Union. Entry into Force of the “Brussels II” Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial and Custody Law Matters (Part II), 348. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ L 351, 20.12.2012, p. 1. J v H Limited (Case C-568/20), ECLI:EU:C:2022:264, on which see Hess, Exequatur sur exequatur (ne) vaut? Der EuGH erweitertet die Freizügigkeit von Drittstaatenurteilen nach Art. 39 ff. EuGVVO, IPRax (2022) 349.

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Art. 71 Brussels IIter

2. ‘Certified decisions’ only? Art. 2(1) Brussels IIter Regulation offers a definition of ‘decision’ for the purposes of the instrument. 13 A ‘decision’ ‘means a decision of a court of a Member State’ falling ratione materiae in the scope of application of the regulation. For the purposes of Chapter IV devoted to recognition and enforcement only, return orders and provisional measures adopted by the court having jurisdiction as to the substance in an adversarial procedure, are ‘decisions’ as well. Nonetheless, Art. 31 Brussels IIter Regulation, always in Chapter IV, also prescribes that a decision is to be accompanied by a uniform certificate for the purposes of cross-border recognition. This raises the question on whether a non (yet) certified decision is already ‘protected’ by Art. 71 Brussels IIter Regulation and by the prohibition to review as to the substance by the second court. Of course, this scenario should constitute the exception as, by operation of law, the certificate of the decision is one of those documents necessary for cross-border recognition or enforcement, and the question surrounding the prohibition to review the foreign judgment raises at the subsequent stage of cross-border recognition or enforcement. Should, for any reason, a cross-border recognition or enforcement procedure start abroad without proper certification, at least two elements suggest answering the above question in the positive, so that if a decision is not accompanied by a certificate (yet), courts of other Member States are already bound by the prohibition to review the decision. In the first place, the ‘general definition’ of ‘decisions’ provided for in Art. 2 Brussels IIter Regulation does not make any reference to the certification of the document. This should induce avoiding placing any further additional requirements on the documents to be considered as ‘decisions’, unless otherwise requested. In the second place, if one should give weight to the certification requirement contained in Chapter IV, where also Art. 71 Brussels IIter Regulation is to be found, albeit in a different section than Art. 31 Brussels IIter Regulation, it should also be stressed that the ‘certification requirement’ for the purposes of cross-border recognition and enforcement is not absolute. By express operation of law, in case the prescribed documents are missing, amongst which even the certificate, the requested court may accept ‘equivalent documents’ or even dispense their production if it considers to have enough elements (Art. 32(1) Brussels IIter Regulation).

14

3. Rebus sic stantibus, and temporary decisions Particularly relevant for parental responsibility matters decisions, whilst it remains that the original decision is not subject to review as to its substance (in the terms above), the prohibition does not impair the relevant authority to take into consideration subsequent elements of fact or in law. As often decisions in family matters, and in parental responsibility matters for what is relevant here, are rendered based on specific circumstances that may change over time, so called rebus sic stantibus judgments, the competent authority may deliver a new subsequent decision.20 It remains, however, that the first decision is not to be reviewed, and only ‘new’ elements can be taken into consideration for issuing a new ruling. 20 Borrás, Explanatory 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 (approved by the Council on 28 May 1998) para. 78; McClean, Article 26 note 4; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 447 f.; Weller, Article 26. Non-Review as to Substance, note 2. In the context of the Hague Convention 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, commenting Art. 27, see Siehr, Das neue Haager Übereinkommen von 1996 über den Schutz von Kindern, RabelsZ (1998) 464, 494, writing that ‘Die Anerkennungsbehörden sind bei der Beurteilung der Anerkennungszuständigkeit an die Tatsachenfeststellungen der Entscheidungsinstanz gebunden (Art. 25). Es darf also nicht etwa in Frage gestellt werden, ob das Kind tatsächlich seinen gewöhnlichen Aufenthalt im Entscheidungsstaat hatte oder nicht, wenn das ersuchende Gericht dies festgestellt hat. Ebenfalls findet keine revision au fond statt (Art. 27). Falls die anzuerkennende Maßnahme nicht mehr dem Schutz des Kindes gerecht wird, muß eine zuständige Behörde neue Maßnahmen treffen. Es darf aber nicht aus Besserwisserei die anzuerkennende Entscheidung inhaltlich nachprüfen. Lediglich der ordre-public-Vorbehalt gestattet eine Ergebniskontrolle, wobei insbesondere das Wohl des Kindes zu berücksichtigen ist (Art. 23 II lit. d)’.

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15

Art. 72 Brussels IIter Appeal in certain Member States 16

Similarly, temporary provisional measures destined to have cross-border effects should not necessarily bound the court seised at a second moment,21 as the authority eventually competent for the main claim will have to review the facts afresh for the purposes of the taking a decision. 4. Non-review and public policy test

17

Whilst the prohibition to review the foreign decision upon the requested court remains, under given circumstances and conditions, such an authority is allowed by the very same Brussels IIter Regulation to refuse recognition and enforcement if the decision is manifestly contrary to the domestic substantive or procedural public policy.22 In positive terms, this means that the requested court, even though going through the few exceptions to the free movement of decisions, will be allowed to investigate possible public policy violations when such breaches are apparent, manifest and self-evident. Thus, the ‘identification’ of the public policy violation, rather than an in-dept investigation, does not require a ‘re-discussion’ of the factual and law decisions already made by the first court.23

18

Not only public policy violations of the requested Member State must clearly emerge from the decision without this being subject to any reassessment whatsoever following a conjunct reading of Arts. 38, 39 and Art. 71 Brussels IIter Regulation. A further parallel reading of these provisions in light of Art. 69 Brussels IIter Regulation also means that, in any case, the compatibility of a ‘verification’ concerning manifest public policy breaches of the requested Member State should not be extended to a review of jurisdiction.24 5. Decisions obtained by fraud or perjury

19

Regardless of whether or not elements of fraud emerge only after the adoption of the foreign decision to be recognised or enforced, European international civil procedure does not have a specific ground to refuse cross-border recognition on this matter.25 Nonetheless, frauds or perjuries that lead to establishing the jurisdiction of the court of origin, or that affect the merits of the decision or the foreign procedure itself as carried out abroad, might fall under the umbrella of substantive or procedural public policy and the protection of human rights. It is thus within the limits of the public policy exception that decisions obtained by fraud or perjury might not be recognised or enforced in the requested Member State.26

Article 72 Appeal in certain Member States Where a decision was given in Ireland, Cyprus 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 this Chapter.

21 Cf. in the context of the Brussels Ibis Regulation, Mankowski (fn. 6), Article 52, note 14. 22 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 701 note 87; Weller, Article 26. Non-Review as to Substance, note 1. 23 Extensively, in civil and commercial matters, but with transposable arguments, see Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia, p. 125 ff. 24 Cf in the context of the Brussels Ibis Regulation, Francq/Mankowski, Article 45 note 91. 25 In general, Mankowski (fn. 6), Article 52, note 12 f, and Tuo, La rivalutazione della sentenza straniera nel regolamento Bruxelles I: tra divieti e reciproca fiducia, 229 ff. 26 Cf, always in the contest of the Brussels I regime, Interdesco SA v Nullifire Ltd [1992] 1 Lloyd’s Rep 180, 187 f, where Phillips J included fraud within the public policy exception. See McClean, Article 26 note 7, writing that in the decision at hand it has been held that ‘where the foreign Court has, in its judgment, rules on precisely the matters that a defendant seeks to rise when challenging the judgment, the Article prohibiting review of the substance preclude[s] the requested court from reviewing the conclusion of the foreign court’. See also Collier, Fraud Still Unravels Foreign Judgments, The Cambridge Law Journal (1992) 441, 443.

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Chapter IV: Recognition and Enforcement I. New systematic collocation . . . . . . . . . . . II. ‘Appeals’ under EU international civil procedure . . . . . . . . . . . . . . . . . . . . .

1

Art. 72 Brussels IIter

III. Overview . . . . . . . . . . . . . . . . . . . . . . 7 IV. Member States concerned . . . . . . . . . . . . 14

3

Bibliography: Arnold, Article 35. Stay of Proceedings, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 200; Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27; Cuniberti/Rueda, Article 51, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 960; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Hartley, Procedure for Enforcement: Effect of Appeal in JudgmentGranting State. European Law Review (1978) 160; Magnus, Article 35, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 347; McClean, Article 27, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 317.

I. New systematic collocation Despite Annex X (‘Correlation table’) of the Brussels IIter Regulation does not set a Brussels IIbis Regulation provision corresponding to Art. 72 Brussels Iiter Regulation*, this is in reality the case. The provision at hand replicates former Art. 27(2) Brussels IIbis,1 related to recognition, and Art. 35(2) Brussels IIbis on appellate proceedings,2 within the specific section 2 (Application for a declaration of enforceability), in Chapter III (recognition and enforcement).3

1

The consequence following the collocation of the rule on appeals from specific provisions concerning 2 the discretionary stay of the appeal proceedings on the application for a declaration of recognition or enforceability to an autonomous self-standing provision is that the rule becomes applicable to the whole Chapter on recognition and enforcement, thus to all its sections and subsections. This imposes an interpretation of the word ‘appeal’ accordingly in all provisions which refer to such a legal institute.4

* Paras. I and II are attributed to Ilaria Queirolo, and paras. III to IV to Stefano Dominelli. 1 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 OJ L 338, 23.12.2003, p. 1. A similar rule is contained in the Brussels Ibis Regulation, Art. 51 as well (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ L 351, 20.12.2012, p. 1). 2 Highlighting the differences between the provisions, in particular on the discretionary power for the court to suspend ex officio, or the lack thereof, see McClean in Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 317, Article 27 note 5, and note 11 commenting the 2016 Commission’s proposal for the Brussels IIbis Recast, on which see also Magnus in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 347, Article 35 note 24. 3 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 449. Nonetheless, the Court of Justice ‘has ruled that, contrary to the procedure laid down in Articles 33 to 35 of the [Brussels IIbis] Regulation in respect of the application for a declaration of enforceability, judgments issued in accordance with Section 4 of Chapter III thereof (rights of access and return of the 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’ (Health Service Executive v S.C. and A.C., [Case C-92/12 PPU], ECLI:EU:C:2012:255 para. 128). 4 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, cit., p. 449.

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Art. 72 Brussels IIter Appeal in certain Member States

II. ‘Appeals’ under EU international civil procedure 3

As some Member States do not know the difference between ordinary and ‘unordinary appeals’,5 Art. 72 Brussels IIter Regulation provides that any type of appeal in these States is deemed to be considered ‘ordinary’ for the purposes of the rules on recognition and enforcement where an appeal plays any role. This ‘limitation’ of the material scope of application – to Chapter IV on recognition and enforcement – clearly stems from the final wording of the Article.

4

In the previous regime, as mentioned, the existence of an ordinary (or equivalent) appeal in the State of origin was relevant in the appellate recognition or enforcement proceedings in the requested Member State, which could have been suspended.6 Amongst the diverse reasons for such rules, the necessity to avoid conflicting decisions: i.e. enforcing a decision repealed in its State of origin.7

5

It remains that the term ‘appeal’ is subject to autonomous interpretation in European international civil procedure. Reconstructing the definition of ‘ordinary appeal’ in the field of the Brussels I regime for the purposes of the corresponding rules on stay of proceedings, and with arguments that may guide the interpretation of the same term under the Brussels IIter Regulation, the Court of Justice identified the criteria under EU law whereby an appeal in domestic law may qualify as such for the purposes of uniform international civil procedure (ordinary for all States, any appeal for Ireland, Cyprus and the United Kingdom). More specifically, the Court argued that a domestic remedy against a decision may lead to the annulment of the judgment; it should constitute the normal course of action following the proceedings which has led to the decision, and it must be exercised by operation of law within a given specific time frame.8

6

The circumstance that the requested Member State should not distinguish between ‘ordinary’ and ‘unordinary’ appeals if the State of origin is Ireland, Cyprus or (in theory, see infra) the United Kingdom – as such a strict distinction may not exist in the State of origin – introduces a certain margin of uncertainty upon the requested court, who should carefully evaluate if the foreign procedure satisfies the uniform requirements for a procedure to be considered an ‘appeal’ under EU law.9

III. Overview 7

Art. 72 Brussels IIter Regulation constitutes a substantive statutory ‘interpretation provision’, which becomes relevant for a number of rules contained in Chapter IV related to the free movement of decisions.

8

It is in light of Art. 72 Brussels IIter that Art. 33 Brussels IIter Regulation should be interpreted an applied.10 According to its letter a), the exequatur procedure may be stayed if an ‘ordinary appeal’ against the decision is lodged before the court of origin, unless one of the specific Member States 5 McClean (fn. 2) Article 27 note 6; Arnold, Stay of Proceedings, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 200, Article 35 note 3. Cf. in the Brussels I regime, Cuniberti/Rueda, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 960, Article 51 note 13. 6 On the double appeal requirement, see Magnus, Article 35 note 1. 7 Magnus Article 35 note 1. 8 Industrial Diamond Supplies v Luigi Riva, (Case 43–77), ECLI:EU:C:1977:188 para. 33 ff., on which see Hartley, Procedure for Enforcement: Effect of Appeal in Judgment-Granting State. European Law Review (1978) 160; McClean (fn. 2) Article 27 note 10, and Cuniberti/Rueda (fn. 5), Article 51 note 10 ff. 9 Cf. Cuniberti/Rueda (fn. 5) Article 51 note 13. Speaking of ‘discretional power’ upon the requested court at a time the rule on the interpretation of ‘unordinary appeals’ was bound with the possibility for the requested court to stay proceedings, Arnold, Article 35 note 4. However, it should be stressed that under the current legal framework the qualification provision and the possibility to stay proceedings are formally separated and it would seem proper to speak of ‘discretional power’ of the requested court only in relation to the possibility of stay proceedings, as current Art. 33 Brussels IIter, for example still uses the verb ‘may’. 10 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 449.

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Art. 72 Brussels IIter

mentioned in Art. 72 Brussels IIter is the State of origin. However, as this still relates to ‘stay of enforcement procedures’, no substantive change from the new systematic collocation of the provision follows in comparison to the previous legal system. It remains that when the Member state of origin is different from Ireland, Cyprus, and the United Kingdom, the general rule in Art. 56 Brussels IIter remains applicable. According to this, the enforceability of the foreign decision is suspended if ‘an ordinary appeal against the decision has been lodged’ in the Member state of origin (Art. 56(2)(a) Brussels IIter Regulation). On the contrary, the ‘general value’ of new Art. 72 Brussels IIter might very well extend its effects as it will help interpret other provisions on recognition and enforcement that generally refer to the possibility of an appeal being lodged in the Member state of origin of the decision. This could be, for example, Art. 30(2) Brussels IIter, according to which the updating of domestic civil status records on the basis of a foreign EU decision relating to divorce, legal separation or marriage annulment requires no special procedure, if the concerned foreign judgment is no further subject to appeal (without any further specification on its ordinary nature). A new conjunct reading of Art. 72, and Art. 30(2) Brussels IIter will define the content of the term ‘appeal’. At the same time, according to Art. 34(2) Brussels IIter, decisions concerning rights of access may be declared by the requested Member State provisionally enforceable ‘notwithstanding any appeal’ in the Member State of origin.

9

The fact that some rules expressly speak of ‘ordinary appeal’ whilst other only refer to ‘appeals’ 10 should not lead to think that ‘unordinary appeals’ fall within the scope of application of the regulation. Unless this is clearly and expressly provided for in the text, it remains that the notion of ‘appeal’ should be subject to autonomous interpretation and even where the text is silent, ‘appeal’ should be interpreted as ‘ordinary appeal’.11 It remains open the question whether Art. 72 Brussels IIter Regulation, contained in Chapter IV dedicated to recognition and enforcement may also be a source of interpretation for other rules. Some rules specifically speak of ‘ordinary appeal’. This is for example the case of Art. 9(b)(iii), and Art. 10 Brussels IIter, contained in Chapter II on jurisdiction. Could Art. 72 Brussels IIter Regulation, devoted to rules on free movement contained in Chapter IV, also be used to argue that ‘ordinary appeal’ means ‘any appeal’ in Cyprus and Ireland as well?

11

Other provisions refer to ‘appeals’ in general, such as Art. 26(6) Brussels IIter Regulation, according 12 to which a ‘decision ordering the return of the child may be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child’. The provision does not speak of ‘ordinary appeal’, and – even though it is not contained in Chapter IV, as it is contained in Chapter III devoted to child abduction, it deals with a recognition and enforcement matter. It would seems overall coherent with the general framework of the instrument, and with the nature of Art. 26(6) Brussels IIter, to interpret the term ‘appeal’ in light of the principle that, unless otherwise provided, this includes only ‘ordinary appeals’, but for decisions originating from Ireland, Cyprus and the United Kingdom. For the sake of internal coherence, thus, Art. 72 Brussels IIter and its principle whereby domestic appeals in given Member States are considered ‘ordinary appeals’ for the purposes of the regulation, could become an interpretative benchmark also for rules not contained in Chapter IV.

13

IV. Member States concerned All Member States requested of recognition and enforcement of a decision originating from the specific Member States mentioned in the provision, are bound by Art. 72 Brussels IIter Regulation.

11 Limiting the provisions on stay of proceedings contained in the 1998 Brussels Convention to ‘ordinary appeals’ only, Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27 para. 79. See also McClean (fn. 2), Article 27 note 6.

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14

Art. 73 Brussels IIter Costs 15

Reference to decisions originating from the Republic of Ireland create little concern, as the previous Brussels IIbis Regulation rule on discretional staying of proceedings already mentioned such a State which is, more or less, in a position of consistency in time.

16

New Art. 72 Brussels IIter Regulation, however, also expressly12 includes a new State, that was not listed under former Art. 35(2) Brussels IIbis Regulation – that is Cyprus. At the same time, Art. 72 Brussels IIter Regulation speaks of decisions coming from a domestic legal system that, meanwhile, has left the European Union.

17

For Cyprus, this is a question of intertemporal application of EU law, solved by Art. 100 Brussels IIter Regulation. According to this, the Brussels IIbis Regulation will still apply to decisions ‘given in legal proceedings instituted … before 1 August 2022’. This means that if the legal proceedings is instituted before the 1st of August 2022 and the decision is delivered after such point in time, the free movement of the decision will still be subject to the previous legal framework. In positive terms, thus, new Art. 72 Brussels IIter Regulation will become of relevance at the enforcement stage for decisions being delivered in Cyprus only if the proceedings in whose context it has been adopted has been instituted on or after August 1, 2022.

18

For the United Kingdom, a non-EU Member State since 31 January 2020 where EU law ceased to apply within the State at the end of the transition period of 31 December 2020,13 Art. 72 Brussels IIter (applicable only after the transition period) will in essence remain dead letter.

Article 73 Costs This Chapter 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. I. History . . . . . . . . . . . . . . . . . . . . . . .

1

II. Content . . . . . . . . . . . . . . . . . . . . . . 1. Child abduction cases under the 1980 Hague Convention . . . . . . . . . . . . . . . . . . . . 2. ‘Severability’ of costs . . . . . . . . . . . . . . .

4 7 8

3. Decisions on the merits not enjoying a special status, and autonomy of decisions on related costs . . . . . . . . . . . . . . . . . . . . . . . . 12 III. Consequences . . . . . . . . . . . . . . . . . . . 16 IV. Notion of ‘costs’, and costs related to authentic instruments or private registered agreements . . . . . . . . . . . . . . . . . . . . 22

Bibliography: Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); McEleavy, Article 49, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 435; Stapf, Article 49. Costs, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 240.

12 This collects suggestions in the scholarship, where authors, referring to former Art. 35 Brussels IIbis Regulation, advocated for an interpretative solution to include this State within the scope of application of the predecessors of current Art. 72 Brussels IIter. This was argued based on the similarities between the (then excluded) Cyprus and the approaches on the point in Ireland and the United Kingdom, as well as resorting to a crosstext interpretation of similar provisions contained in the Brussels Ibis Regulation, namely its Art. 51(2). See in detail, Magnus, Article 35 note 20. 13 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, in OJ L 29, 31.1.2020, p. 7, Artt. 126, and 127.

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Chapter IV: Recognition and Enforcement

Art. 73 Brussels IIter

I. History Art. 73 Brussels IIter Regulation* largely (but not identically) reproduces Art. 49 Brussels IIbis1 and 1 Art. 13(2) Brussels II.2 No similar express rule pertaining to costs is to be found in other main European instruments of international civil procedure3 adopted by the European lawgiver. This does not mean that decisions concerning costs are left without any specific status in other instruments. For example, in the Brussels Ibis Regulation,4 the application of rules on free movement of decisions to those pertaining costs can be reached by recurring to the definition of ‘judgment’.5 Under Art. 2(1) Brussels Ibis, a ‘judgment’ means ‘any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court’. Hence, as orders related to costs are considered judgments, it naturally follows that the general rules on free movement of decisions apply to them as well.

2

The lack of any specific inclusion of orders related to costs within the general definition of ‘decisions’ under Art. 2(1) Brussels IIter Regulation makes it opportune to draw a specific provision on their own movement. Historically speaking, the choice to have a separate rule expressly providing that decisions related to costs enjoy the special regime of free movement6 has been deemed opportune to pursue clarity in law.7

3

II. Content The effect of Art. 73 Brussels IIter Regulation is, as mentioned, that orders pertaining to costs and ex- 4 penses of proceedings and to the enforcement of any order concerning such costs and expenses enjoys the special regime of free movement of decisions established by the instrument. This should cover costs and expenses between the parties, and sums to be paid by a party8 (even though payments owed to the own lawyer should not fall within the scope of application of this provision as they constitute services9). From a practical perspective, if more than one party has been ordered to bear the costs, additional documents in the standard form of certification of the decision on the merits should be is-

* Paras. I and II are attributed to Ilaria Queirolo, and paras. III to IV to Stefano Dominelli. 1 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 OJ L 338, 23.12.2003, p. 1. 2 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 160, 30.6.2000, p. 19. Cf Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 451. 3 Stapf, Article 49. Costs, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 240, note 2. 4 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 351, 20.12.2012, p. 1. 5 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 451. 6 Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27 para. 60. 7 McEleavy, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 435, Article 49 note 1. 8 Stapf, Costs, Article 49 note 3. 9 See amplius infra on the notion of ‘costs’. Cf. Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 707, note 109.

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Art. 73 Brussels IIter Costs sued, so as to properly identify each debtor.10 In case of ‘multiple debtors’, the court of origin may also specify in the standard certificate whether the whole amount may be collected from any one of the debtors. 5

It should not matter if the decision on costs is ‘incorporated’ within the decision on the merits, or is contained in a separate autonomous document.11 This emerges on the one side from the text and the systematic of Art. 73 Brussels IIter Regulation in general, but is more clearly confirmed on the other side by the standard certificates to be attached to the original decision. For example, Annex II and Annex III on the certificate, respectively, of decisions on matrimonial matters and on (‘ordinary’) parental responsibility matters contain specific points (point 10, and point 17) that are dedicated to costs. Footnotes to the standard forms make it clear that each point of the certificate on costs ‘also covers situations where the costs are awarded in a separate decision’.

6

Art. 73 Brussels IIter Regulation, by explicit wording of the provision, only grants the extension of the rules on free movement to determinations of costs related to proceedings taken (ratione materiae and temporis12) under the instrument.13 This raises a number of questions. 1. Child abduction cases under the 1980 Hague Convention

7

A return order may be initiated under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Due to the coordination between EU law and this international treaty, a return order issued under the 1980 Hague Convention should be deemed to fall within the scope of application of the instrument, with the consequential application of Art. 73 Brussels IIter on costs. This seems confirmed by Art. 2(1)(a) Brussels IIter Regulation, according to which a ‘decision’ for the purposes of Chapter IV, where Art. 73 Brussels IIter on costs is contained, includes ‘a decision given in one Member State and ordering the return of a child to another Member State pursuant to the 1980 Hague Convention which has to be enforced in a Member State other than the Member State where the decision was given’. 2. ‘Severability’ of costs

8

If the merit of the case entirely falls outside the scope of application of the regulation, orders related to costs will move within the European judicial space under the domestic laws of the requested Member State, where relevant, or according to other instruments of European international civil procedure where applicable, as the case of maintenance obligations could be.

9

At the same time, a proceedings may only partially fall within the scope of application of the Brussels IIter Regulation.14 Given that the ‘matrimonial forum’ has a potentially ‘attractive force’,15 it could be the case that a court decides on several issues, and contextually adopts a court order on the costs. In such a case, to the extent possible, a principle of ‘severability’ of the decision pertaining to different costs should be pursued, so that only the ‘part’ of costs relating to activities covered by the Brus10 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, cit., p. 452. 11 Stapf, Costs, Article 49 note 3. 12 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 706 note 108. 13 McEleavy (fn.7), Article 49 note 3. Cf the Italian version of the provision, writing that expenses must relate to ‘procedimenti instaurati in base al presente regolamento’. Similarly, the German version writes ‘Kosten für die nach dieser Verordnung eingeleiteten Verfahren’. 14 On ancillary matters dealt with during proceedings that, if alone taken, would fall within the scope of application of other instruments, such as the Hague 1954 Convention on civil procedure or the Hague 1980 on international access to justice, see Borrás, Explanatory 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 (approved by the Council on 28 May 1998), para. 60; McEleavy (fn.7), Article 49 note 3, and Stapf, Costs, Article 49 note 3, also referring to the 1954 Hague Convention on Civil Procedure. 15 Cf 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, in OJ L 7, 10.1.2009, p. 1, Art. 3(c), and Art. 4(1(c)(i).

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Art. 73 Brussels IIter

sels IIter Regulation circulate accordingly. Again, of course, the ‘other parts’ of the decision on the costs may take advantage of other European regulations or, eventually, will move between States according to the relevant domestic law. If a ‘severability’ of the decision on costs is not possible, it may be advocated for the application of Art. 73 Brussels IIter Regulation at the decision on costs in its entirety.16 Even though this might be inconsistent with the wording of the provision as the cost would relate to a procedure not taken under the regulation, it could be a last resort interpretative solution adopted to ensure its effet utile.

10

It should however be noted that the scenario whereby the court requested of recognition and enforcement is not able to distinguish costs related to either of the fields falling within the scope of application of the regulation from ‘other procedural costs’, should in theory remain a limited scenario. This is because the standard form certificate attached to the decision on the merit (Annex II and ff of the regulation) generally contains a specific point on ‘costs’. A decision on matrimonial matters, for example, has a specific section where the court of origin can indicate that – if the decision also touches upon parental responsibility matters – determination of all costs are to be found in the certificate issued for parental responsibility.17 Additionally, the uniform certificate clearly identifies the sums, the debtor and the creditor, and features a specific point where any useful information on costs can be offered. From a practical perspective, this could help courts properly ‘allocate’ costs proceedings to matters falling within the scope of application of the regulation.

11

3. Decisions on the merits not enjoying a special status, and autonomy of decisions on related costs Two different scenarios can be mentioned.

12

Firstly, by taking a clear position on a matter that was debated in legal scholarship, Art. 2(1) Brussels IIter Regulation defines as ‘decisions’ those that do ‘grant’ divorce, legal separation or marriage annulment. This means that a decision which, at the end of proceedings, confirms the marital status (as could be the rejection of a request to annul marriage because of lack of conditions set by the applicable law at a given moment in time) is not a ‘decision’ for the purposes of the regulation and, consequently, does not enjoy the special regime of free movement. Nonetheless, for the purposes of Art. 73 Brussels IIter, the focal point is the proceedings being started under the regulation. This means that even if the decision might not be allowed to move between Member States according to the Brussels IIter Regulation, the part of the judgment pertaining to costs might still circulate within the European judicial space under uniform simplified rules.18

13

Secondly, the case law, when applying Art. 13(2) Brussels II Regulation, was faced with costs related 14 to non-enforceable decisions. The case law has taken the position that decisions on costs may always take advantage of the uniform rules on free movement as they are always enforceable (despite the lack of enforceability of the decision they relate to), so long at least proceedings where started under the regulation applicable ratione materiae.19 16 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 706 note 108, and Stapf, Costs, Article 49 note 3. In the case law, see BGH 22.6.2005 – XII ZB 186/03, NJW 2005, 3424, note 44 (‘Der Senat kann in der Sache nicht selbst entscheiden, da weitere Feststellungen zu den Verfahrenskosten erforderlich sind. Das Tribunale di Novara hat in seinem Urteil vom 22.7.2002 nicht nur über die Trennung der Parteien und die Frage der elterlichen Sorge, sondern im Verbund auch über Folgesachen – Unterhalt, Zuweisung von Ehewohnung und Hausrat – entschieden, die nicht in den Anwendungsbereich der Brüssel II-VO fallen. Das Oberlandesgericht wird danach zu prüfen haben, ob durch diese Folgesachen abtrennbare Kosten verursacht worden sind, weil die Kosten dieser Folgesachen nur dann nach den Vorschriften der Brüssel II-VO für vollstreckbar erklärt werden können, wenn sie von den Kosten des Ehestatusverfahrens praktisch nicht zu trennen sind […]’). See also Supremo Tribunal de Justiça, ECLI:PT:TRC:2008:225.C.1998.C1.B3. 17 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 451. 18 Cf already Stapf, Costs, Article 49 note 3. 19 BGH 22.6.2005 – XII ZB 186/03, NJW 2005, 3424, note 42 f (‘Zwar erstreckt sich die Verpflichtung zur Vollstreckbarerklärung nach dem Wortlaut des Art. 21 Abs. 1 Brüssel II-VO nur auf – vollstreckbare – Entschei-

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Art. 73 Brussels IIter Costs 15

Such a principle of ‘autonomy’ of enforceability of costs decisions becomes particularly important if one turns the attention to decisions that do grant divorce, marriage annulment, or legal separation.20 These decisions do move within the European judicial space, but a ‘traditional’ enforcement stage is missing. To tangle the enforceability of the decisions on costs to the ‘effective enforceability’ of the judgment they relate to, might pose problems where no effective enforcement of the judgment on the merits is possible in a traditional understanding, or is not sought by the interested party because there has been voluntary compliance on the other side.

III. Consequences 16

As it emerges from the above, decisions on costs should always be considered enforceable regardless of the attitude of the decision they refer to, and consequently move across the European judicial space. Determination of costs thus enjoy the special status of free movement provided for decisions in Chapter IV of the Brussels IIter Regulation.

17

This means that both founding principles of the Brussels IIter Regulation apply to the determination of costs: the decision will be automatically and immediately recognised, and will be subject to the new rules concerning enforceability and exequatur. This should settle a problem emerged in previous practice:21 on a negative spectrum, the lack of an exequatur procedure in divorce matters raised the question on whether related costs decisions were directly enforceable or conversely needed their own autonomous exequatur procedure. Whereas the answer should have been in favour of imposing a (formally) autonomous exequatur procedure on costs decisions, the new regime of enforceability with postponed exequatur eases the solution to the matter.22

18

To some extent, the uniform standard model of certification of decisions confirms this autonomy between parallel enforcement procedures: for example, footnote 3 to Annex II on the certificate concerning decisions in matrimonial matters, reads that ‘The mere fact that the amount of the costs has not been fixed yet should not prevent the court from issuing the certificate if a party wishes to seek recognition of the substantive part of the decision’.23 If the non-determination of costs allows for the recognition and enforcement of the decision on the merit alone, whilst recognition and enforcement of the decision on costs can be pursued eventually at a later stage, a principle of ‘autonomy’ of procedures seems to be inherent in the system.

19

The necessity for the decision on costs going through its own exequatur under the Brussels IIbis Regulation, and the applicability of the new rules on enforcement under the Brussels IIter Regulation, raises the question whether current Art. 73 Brussels IIter Regulation allows for the application of those special rules in Chapter IV dedicated to some certified decisions. As known, Artt. 42 ff. Brussels IIter Regulation create a special procedure for privileged decisions, most notably by sensitively reducing the grounds to refuse recognition and enforcement in comparison to the general scheme. The question, thus, is whether decisions pertaining to costs of special decisions enjoy the ‘ordinary’ regime of free movement, or take advantage of the enhanced one.

20

The answer to the question appears everything but straightforward. Former Brussels IIbis Regulation was clear in excluding that privileged decisions could have extended their free movement regime to

20 21 22 23

dungen zur elterlichen Sorge. Darauf ist der Anwendungsbereich der Vorschrift aber nicht beschränkt. Nach Art. 13 Abs. 2 Brüssel II-VO werden ausdrücklich Entscheidungen über die Kostenfestsetzung in das Anerkennungs- und Vollstreckungssystem nach dem Kapitel III der Brüssel II-VO einbezogen. Es entspricht daher allgemeiner Ansicht, daß alle Entscheidungen zur Kostenfestsetzung nach den Art. 21 ff. Brüssel II-VO vollstreckbar sind, wenn sie in einem vom Anwendungsbereich der Brüssel II-VO erfaßten Verfahren ergangen sind […]’). Cf. Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 707 note 110. In the case-law, Supremo Tribunal de Justiça, ECLI:PT:TRC:2008:225.C.1998.C1.B3. In the scholarship, see Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 707 note 110. On the Commission’s proposal for Recast, Stapf, Costs, Article 49 note 4. On which see Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 452.

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Art. 73 Brussels IIter

decisions pertaining to costs as well. These where in any case excluded from the fast-track regime and where always subject to the standard-track one.24 This emerged clearly from the wording of Art. 49 Brussels IIbis Regulation, which explicitly excluded Section 4 of the chapter on recognition and enforcement from its scope of application. Contrary, Art. 73 Brussels Iiter Regulation makes no such exclusion, and only provides that Chapter IV on recognition and enforcement at large applies to decisions pertaining to costs. On the one side, the textual evolution could be read as the intention of the lawgiver to create a certain parallelism between the enforceability rules applicable to the decision on the merits and the decision relating to costs. On the other side, the above-mentioned principle of autonomy, which could hardly be argued to have expressly been overruled by this simple linguistic omission, together with the consideration that the special regime of enforcement serves specific purposes, and for this reason is limited only to given types of judgments, might be an element to consider the omission at hand being closer to a drafting mistake. A conclusion that would introduce little changes on the point in comparison to the previous, clearer, legal framework.

21

IV. Notion of ‘costs’, and costs related to authentic instruments or private registered agreements The definition of ‘costs’ for the purposes of Art. 73 Brussels Iiter Regulation should be constructed as 22 an autonomous notion of EU law. Also by taking reference to Art. 2(a) Brussels Ibis Regulation, which is albeit different in the definition of the term ‘decision’ in comparison to the Brussels II regime, the possible definition of ‘costs’ relevant for Art. 73 Brussels IIter should include any decision – regardless of the name under domestic law – taken by ‘courts’ or other competent officers on judicial costs25 related to the ‘proceedings’ falling within the scope of application of the regulation. Art. 73 Brussels IIter Regulation seems consistent with the conceptualisation of ‘judicial expenses’ in that it speaks of ‘costs … of proceedings’, even at the enforcement stage. This would leave outside of the scope of application of the provision, as mentioned above, costs pertaining the payment legal representation. If one accedes to the idea that ‘costs’ are those, regardless of their name, regardless of the act setting 23 them or of the authority taking the determination, which relate to the procedure, one may wonder if and to what extent Art. 73 Brussels IIter Regulation is applicable to costs related to non-judicial procedures. The regulation not only knows authentic instruments, but nowadays also applies to private agreements registered with State authorities. Such documents have their own specific rules on the free movement and the question is whether or not decisions on the allocation of costs of these nonjudicial procedures may also fall within the scope of application of Art. 73 Brussels IIter and, by virtue of the autonomous yet parallel approach above, enjoy the same regime of free movement of the documents they relate to. In the search for an answer, the text of Art. 73 Brussels IIter seems inconclusive on the point, as it does not directly speak of ‘judicial costs’ – rather using the terms ‘proceedings started under the Regulation’. Moreover, Art. 73 Brussels IIter avoids introducing any distinction between ‘judgments’, ‘decisions’, ‘authentic instrument’ or ‘agreement’. Yet, it calls for the application of Chapter IV entirely, which also deals with the two latter categories. Nonetheless, the question appears to be mainly theoretical in nature. In the first place, the sums should not refer to the service if the public authority, for example, is a notary, as this would make the sums falling outside the scope of application of Art. 73 Brussels IIter (similar to costs for lawyers). Additionally, the structures of procedures eventually adopted in the single Member State of origin may require pre-payment of costs of proceedings, circumventing the issue of cross-border enforcement. In light of this circumstance, one could note that the uniform certification model of the regulation drafted for authentic instruments (Annex VIII), does not feature a specific point of ‘procedural costs’.

24 In these terms, McEleavy (fn.7), Article 49 note 3. 25 The Italian version of Art. 2(1) Brussels Ibis Regulation clearly uses the term ‘spese giudiziali’. Also referring to the Brussels I regime for the interpretation of former Art. 49 Brussels IIbis Regulation, Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 707 note 109.

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Art. 74 Brussels IIter Legal aid

Article 74 Legal aid 1. 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 30(3), 40, and 59, 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. 2. An applicant who, in the Member State of origin, has benefited from free proceedings before an administrative authority communicated to the Commission pursuant to Article 103 shall be entitled, in any procedures provided for in Articles 30(3), 40 and 59, to benefit from legal aid in accordance with paragraph 1 of this Article. To that end, that party shall present a statement from the competent authority in the Member State of origin to the effect that he or she fulfils the financial requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses. I. History . . . . . . . . . . . . . . . . . . . . . . . II. III. 1. 2.

Content and aim . . . . . Scope of application . . . Enforcement procedures . Right of the ‘applicant’ . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

1

. 3 . 6 . 10 . 12

3. Privileged decisions and legal aid under Art. 74 . . . . . . . . . . . . . . . . . . . . . . . 15 4. Arrangements for the exercise of rights of access . . . . . . . . . . . . . . . . . . . . . . . . 16 IV. Administrative decisions . . . . . . . . . . . . 17

Bibliography: Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); McEleavy, Article 50, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 436; Pålsson, Article 50, in: Magnus/Mankowski (eds.), Brussels I Regulation (2nd ed. 2012), p. 789; Quinzá Redondo, Artículo 56. Asistencia jurídica gratuita, in: Iglesias Buigues/Palao Moreno (eds.), Sucesiones Internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 409; Stapf, Article 50. Legal aid, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 242; Würdinger/La Mattina, Articolo 50, in: Simons/Hausmann/Queirolo (eds.), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 875; Zˇupan/Hoehn/Kluth, Central Authority Cooperation under the Brussels II ter Regulation, PIL XXII (2020/ 2021), 183.

I. History 1

Art. 74 Brussels IIter Regulation* derives from Art. 50 Brussels II,1 and IIbis2 Regulation. A provision to similar effects was contained in Art. 31 of the 1998 Brussels Convention, 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.3

* Paras. I and II are attributed to Ilaria Queirolo, and paras. III to IV to Stefano Dominelli. 1 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 160, 30.6.2000, p. 19. Ex multis see Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/ 1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 453. 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, in OJ L 338, 23.12.2003, p. 1. 3 In OJ C 221, 16.8.1998, p. 27.

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Other instruments4 of European international civil procedure contain – consistently over time – even though with relevant changes in the texts, specific provisions devoted to legal aid. This is the case, for example, of the Brussels I Regulation5 and of the Succession Regulation.6 To some extent, these similar provisions may help interpret and define the scope of application of Art. 74 Brussels IIter Regulation.

2

II. Content and aim Art. 74 Brussels IIter Regulation sets a uniform rule that extends ipso iure (meaning that no further investigation on entitlement to legal aid is admitted)7 the applicant’s benefit of legal aid enjoyed in the State of origin of the decision also at the stage of recognition and enforcement procedures abroad.

3

By far, this does not mean that the applicant can ‘export’ its original legal aid as it was in the State of 4 origin to the Member State requested of recognition and enforcement. Art. 74 Brussels IIter Regulation still subjects legal aids to the domestic law of the concerned Member State, who should ‘adapt’ the foreign right to the closest national category.8 If the applicant enjoyed a full relief from expenses, similar advantages should be granted in the second State; at the same time, if the applicant enjoyed only partial relief, partial relief of expenses should be granted in the requested State as well. This, without any prejudice to the applicant having received partial financial relief in the State of origin eventually obtaining full financial relief in the requested Member State.9 Art. 74 Brussels IIter clearly states that the requested Member State must grant ‘the most favourable legal aid … provided for by the law of the Member State of enforcement’.10 Should a person have concerns or doubts whatsoever on the possibility to enjoy full or partial financial relief in another Member State, according to Recital 75 and Art. 79(c) Brussels IIter Regulation, ‘… holders of parental responsibility … [may request their Central Authority] to provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in the territory of the requested Central Authority, in particular concerning rights of access and the return of the child, including, where necessary, information on how to obtain legal aid …’11

4 For an overview of the approaches followed also in international treaties, see McEleavy, Article 50, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 436, note 2. 5 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001, p. 1, Art. 50. However, no such provision has been transposed in the 2012 Recast. 6 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, in OJ L 201, 27.7.2012, p. 107, Art. 56. 7 Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 708, note 112, and Stapf, Legal aid, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 242, Article 50 note 4. Cf. in the Brussels I regime, OLG Düsseldorf (DE) 19.7.1990 – 3 W 276/90, in unalex, DE-752 and Högsta domstolen (SE) 23.12.2003 – Ö-1537/03, in unalex, SE-31. 8 Cf. Pålsson, Article 50, in Magnus/Mankowski (eds.), Brussels I Regulation (2nd ed 2012), p. 789. 9 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 708 note 112. Speaking of a ‘most favourable legal aid principle’, Borrás, Explanatory 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 (approved by the Council on 28 May 1998), in OJ C 221, 16.7.1998, p. 27, para. 100; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 453, and Stapf, Legal aid, Article 50 note 4. 10 Cf. with regards to other comparable instruments of European international civil procedure, Quinzá Redondo, Artículo 56. Asistencia jurídica gratuita, in: Iglesias Buigues/Palao Moreno (eds.), Sucesiones Internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 409. 11 On Central Authorities, see Zˇupan/Hoehn/Kluth, Central Authority Cooperation under the Brussels II ter Regulation, PIL XXII (2020/2021), 183.

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The provision is consistent with the idea that uniform heads of jurisdiction and access to court are strictly interconnected with rules on recognition and enforcement. If applicants are not granted a continuity in legal aid during the recognition or enforcement stage, their right to access a court of law may be impaired.12

III. Scope of application 6

Art. 74(1) and (2) Brussels IIter have a very specific material scope of application. Beside some specificities, most limits to the scope of application are valid for both rules.

7

The main limit is that the right to enjoy the same or a more favourable regime of legal aid in the requested Member State is granted by the regulation only for specific proceedings. These are listed by way of reference to Art. 30(3), 40, and 59 Brussels IIter. Due to the new regime of free movement of decisions established by the regulation, the provision on legal aid refers to provisions aimed at obtaining a (positive or negative, depending on the action)13 ruling on the ground to refuse recognition and enforcement (Art. 30(3), and 40 Brussels IIter), and to rules governing the application for refusal of enforcement (Art. 59 Brussels IIter).14

8

Reference to Art. 30(3) Brussels IIter means that the right to legal aid according to the ‘State of origin’ is given for proceedings whose main aim is the pre-emptive judicial declaration that a foreign decision lacks any ground to refuse recognition and enforcement. The renvoi to Art. 40 Brussels IIter means that the right at hand may be enjoyed where the applicant starts a principal and main procedure to have refusal of recognition of the foreign decision. Procedures under Art. 59 Brussels IIter are those where the applicant seeks a declaration for refusal of enforcement of the foreign decision.

9

This means that the right to legal aid under Art. 74 Brussels IIter Regulation does not extend to proceedings whereby a party challenges the decision of the court on the existence of any ground to refuse recognition or enforcement.15 In such a case, the possibility to have access to any financial support mechanisms will be entirely governed by the domestic law of the requested Member State. 1. Enforcement procedures

10

As it stems from the above, all procedures where the applicant may ‘export’ an adapted original right to legal aid in the second State are procedures where the requested court is called to rule on the existence of grounds to refuse recognition or enforcement. This translates in another additional limit to the scope of application of Art. 74 Brussels IIter. The right of the applicant to enjoy its original right to legal aim does not extend to the enforcement procedure per se,16 and to possible challenges of single enforcement acts provided for in the domestic law of the requested State.17 12 Cf. Würdinger/La Mattina, Articolo 50, in Simons/Hausmann/Queirolo (eds.), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 875 f. 13 Cf. McEleavy, Article 50 note 7. 14 Already on the Recast proposal, Stapf, Legal aid, Article 50 note 5. 15 Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 707 note 111, and Stapf, Legal aid, Article 50 note 3. 16 Cf. in the scholarship Quinzá Redondo, Artículo 56. Asistencia jurídica gratuita, p. 411, and Würdinger/La Mattina, Articolo 50, p. 876. 17 The exclusion of the scope of application of the rule on legal aid to enforcement proceedings, other than finding comfort in an ‘historic’ reading against the background of similar provisions contained in other European instruments of international civil procedure, seems to be confirmed by the evolution of the text from the Recast to its final adoption. Proposed Art. 58, when listing the proceedings to which the rule on legal aid had to be granted to, also referred to Proposed Art. 32, a rule concerning authorities competent for the enforcement. Part of the scholarship did question whether the proposed text was indeed apt to extend the applicability of the rule on legal aid to enforcement procedures as well. It has been argued that ‘in also listing Art. 32 of the proposal, a provision containing harmonized provisions concerning the enforcement procedure, the proposed Art. 58 seems to say that the extension of legal aid now applies to the enforcement procedure in the Member State of enforcement, the authorities of the Member State of enforcement having to grant legal aid in the procedure of enforcement of the judgment given in the Member State of origin where legal aid has been granted’

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This, of course, does not mean no legal aid at all will be provided at this stage; more simply, the interested party will have to ask admittance to financial support schemes according to the domestic law of the Member State of enforcement.18 Here, domestic courts will have to determine ex novo if and under what (domestic) conditions the interested person has a right to accede support schemes. This, contrary to the effects of Art. 74 Brussels IIter Regulation that, where applicable, as mentioned, inhibits the possibility for the courts of the second State to re-determine the existence of the right.

11

2. Right of the ‘applicant’ The punctual reference of Art. 74 Brussels IIter to specific provisions, rather than to Chapter IV on recognition and enforcement in general, together with the specific terminology used by Art. 74 Brussels IIter, introduces another limit. The right envisaged is limited only to the requests made by the ‘applicant’ to the courts of the second State to decide on the existence of grounds for non-recognition or enforcement.19

12

This excludes the possibility for the ‘applicant’ to invoke Art. 74 Brussels IIter if the decision deliv- 13 ered in the requested Member State is subsequently challenged, as the ‘applicant’ is no longer ‘applicant’.20 Again, this does not mean that the party challenging the decision of the court is left with no financial support whatsoever – rather, access to legal aids will be addressed by the requested court entirely under domestic law. On the other side, the use of the word ‘applicant’, together with the (general) structure of the inaudita altera parte scheme of procedure to rule on grounds to refuse recognition and enforcement of decisions, excludes the ‘counterpart’ from the scope of application of the provision.21

14

3. Privileged decisions and legal aid under Art. 74 New Art. 74 Brussels IIter Regulation, contrary to its predecessor, does not make any clear reference to privileged decisions.22 Nonetheless, it could be argued that procedures on access rights and return order might still be falling within the scope of Art. 74 Brussels IIter, despite its new wording. On the one side, Art. 74 Brussels IIter speaks of ‘procedures provided for in Arts. 30(3)’ (that is, a pre-emptive declaration on the absence of any ground to refuse recognition and enforcement), and, on the other side, Art. 42(2) Brussels IIter on privileged decisions makes clear that nothing prevents a ‘party from seeking recognition and enforcement of a decision … in accordance with the provisions on recognition and enforcement laid down in Section 1’ of Chapter IV. It remains thus unclear, for the purposes of Art. 74 Brussels IIter, if these different interplays of provisions might have the effect to re-extend the scope of application of the rule on legal aid, which, in comparison to the previous text, seems to aim at reducing its precedent applicability.

18 19 20

21 22

(Stapf, Legal aid, Article 50 note 5). However, in the final text approved, such a renvoi of Art. 74 Brussels IIter to a rule governing the enforcement, is missing. On EU substantive law concerning legal aid, see McEleavy, Article 50 note 8. In the legislation, see Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, in OJ L 312, 22.11.2008, p. 3, as amended. McEleavy, Article 50 note 4; Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 707 note 111, and Stapf, Legal aid, Article 50 note 3. Critical on this limited scope of application, Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 454, and, in the context of the Succession Regulation, Quinzá Redondo, Asistencia jurídica gratuita, Artículo 56 p. 411. Cf. McEleavy, Article 50 note 6. Former Art. 50 Brussels IIbis clearly listed procedures under former Art. 41, and 42 on certified decisions concerning access rights and trumping orders. This has been subject to critiques: it has been argued that since such decisions were ‘recognised and enforced in another Member State without the need for a declaration of enforceability and without any possibility of opposing recognition … they are to be treated as if they were national judgments, [for which] there is no procedure to comply with’ (McEleavy Article 50 note 9). Also critical on the former inclusion of privileged decisions within the scope of application of the rule on legal aid, as ‘a separate procedure of recognition and exequatur has been abolished for these kinds of judgments’, Stapf, Legal aid, Article 50 note 3.

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15

Art. 75 Brussels IIter Security, bond or deposit 4. Arrangements for the exercise of rights of access 16

More clear appears to be the exclusion, by omission,23 of arrangements for the exercise of rights of access taken by the authorities competent for enforcement to organise the exercise of rights of access (now Art. 54 Brussels IIter Regulation). Whereas former Art. 50 Brussels IIbis Regulation also referred to such arrangements (former Art. 48 Brussels IIbis),24 current Art. 74 Brussels IIter in no – direct or indirect – way seems to longer apply to such agreements.

IV. Administrative decisions 17

Art. 74(2) Brussels IIter Regulation is an entirely new provision that was not present in the Commission’s Proposal.25 The effects of this rule is to clearly extend the possibility of the ‘applicant’ to invoke its original and adapted right to legal aid even where the proceedings in the Member State of origin did not take place before a ‘jurisdictional’ authority (an already broad uniform definition under Art. 2 Brussels IIter), but takes place before an ‘administrative’ authority, if this has been communicated by the Member State to the Commission, and so far as the proceedings falls within the scope of application of the regulation. Of course, this provision in no way introduces an obligation for Member States to ensure that proceedings must also take place before administrative authorities. For example, as is clearly to be read on the eJustice portal, Italy has communicated that no authority in Italy grants the legal aid addressed in Art. 74(2) Brussels IIter Regulation. Of a similar content the German Communication, according to which ‘the German legal system does not currently provide for any free proceedings before an administrative authority within the meaning of Art. 74(2) [Brussels IIter Regulation]’.

18

In contrast to the right to legal aid where the foreign proceedings took place before a ‘court’, under Art. 74(2) Brussels IIter the applicant must present a statement from the competent authority of the Member State of origin to the effect they fulfil the financial requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses. This is not necessary if legal aid is granted by a ‘court’ in occasion of a ‘jurisdictional proceedings’, because the common uniform certificates to be attached to the final decision already contain a specific point on legal aid, which fulfils the same need incorporated in Art. 74(2) Brussels IIter.26

Article 75 Security, bond or deposit No security, bond or deposit, however described, shall be required of a party who in one Member State applies for the enforcement of a decision given in another Member State on the ground that he or she is a foreign national or that he or she is not habitually resident in the Member State of enforcement. I. History . . . . . . . . . . . . . . . . . . . . . . . II. Content and scope of application . . . . . . .

1 2

III. Aim of the provision . . . . . . . . . . . . . . . 8 IV. Access to (substantive) proceedings . . . . . . 13

23 On the nature of ‘closed list’ of Art. 74 Brussels IIter Regulation, Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 454. 24 Cf. McEleavy, Article 50 note 10 f. 25 Cf. Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 455. 26 On the use of the certificate, cf. Hausmann, Internationales und Europäisches Ehescheidungsrecht, p 708 note 112.

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Bibliography: Adobati, Sull’illegittimità del deposito di una cauzione “iudicatum solvi”. Diritto comunitario e degli scambi internazionali (1996) 753; Ehricke, Art. 12 I (ex 6 I) EG-Vertrag und das nationale Zivilprozeßrecht – Bilanz und Perspektiven. IPRax (1999) 311; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/ 1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020); Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013); Hess, Exequatur sur exequatur (ne) vaut? Der EuGH erweitertet die Freizügigkeit von Drittstaatenurteilen nach Art. 39 ff. EuGVVO, IPRax (2022) 349; Kramer, Article 56, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 977; McEleavy, Article 51, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 440; Quinzá Redondo, Artículo 57. Ausencia de caución o depósito alguno, in: Iglesias Buigues/Palao Moreno (eds.), Sucesiones Internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 414; Romano, Riconoscimento ed esecuzione delle decisioni nel Regolamento “Bruxelles I”, in: Bonomi (ed), Diritto internazionale privato e cooperazione giudiziaria in materia civile (2009), p. 149; Schlosser, Prozeßkostensicherheitsleistung durch Ausländer und gemeinschaftsrechtliches Diskriminierungsverbot. EuZW (1993) 659; Stapf, Article 51. Security, bond or deposit, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 244; Streinz/Leible, Prozeßkostensicherheit und gemeinschaftsrechtliches Diskriminierungsverbot, IPRax (1998) 162; Wolf, Rechtswidrigkeit der Ausländersicherheit nach § 110 ZPO nach EG- und Verfassungsrecht, RIW (1993) 802; Würdinger/La Mattina, Articolo 51, in: Simons/Hausmann, Queirolo (eds.), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 878.

I. History Art. 75 Brussels IIter Regulation* derives from Art. 31 and Art. 51 Brussels II,1 and IIbis2 Regulation 1 respectively. A provision to similar effects was contained in Art. 32 of the 1998 Brussels Convention, 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.3 Other European Union instruments, such as the Brussels Ibis Regulation4 and the Succession Regulation,5 contain similar rules. Comparable ones, albeit with a different scope of application determined by the absence of an integrated space of freedom, security and justice, can be found in international treaties as well.6

II. Content and scope of application By prohibiting any kind of security, regardless of their name under domestic law, being imposed 2 upon the ‘party’ applying for the enforcement of a foreign decision rendered by a Member State, Art. 75 Brussels IIter Regulation sets a uniform procedural rule for all Member States themselves. De-

* Paras. I and II are attributed to Ilaria Queirolo, and paras. III to IV to Stefano Dominelli. 1 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, in OJ L 160, 30.6.2000, p. 19. Ex multis see Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/ 1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores (2020), p. 457, and Stapf, Security, bond or deposit, in: Althammer (ed.), Brussels IIa Rome III Article-by-Article Commentary (2019), p. 244 Article 51 note 2. 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, in OJ L 338, 23.12.2003, p. 1. 3 In OJ C 221, 16.8.1998, p. 27. 4 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in OJ L 351, 20.12.2012, p. 1, Art. 56. 5 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, in OJ L 201, 27.7.2012, p. 107, Art. 57. 6 Cf. already Hague Conference of Private international law, Convention of 1 March 1954 on civil procedure, Art. 17.

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Art. 75 Brussels IIter Security, bond or deposit spite any possible contrary indication given by domestic law, ex officio the requested court should ensure direct applicability of the rule contained in the regulation. 3

The prohibition at hand only applies for decisions rendered by courts of other Member States7 which fall within the material scope of application of the regulation, and should be applied both to ‘ordinary’ decisions as well as to privileged certified decisions for which the interested party applies for enforcement.8

4

Despite the wording of Art. 75 Brussels IIter, which refers only to the application of enforcement procedures, it seems consistent with the ratio of the provision and the systematic of the regulation to include within its scope of application, applications for a decision that there are no grounds for refusal of recognition under Art. 30(3) Brussels IIter (as well as procedures concerning an application for refusal of recognition).9

5

Furthermore, even though Art. 75 Brussels IIter Regulation speaks of ‘enforcement’, not only the term should be interpreted so as to cover applications on the recognition as well, but it should be interpreted so as to cover security imposed upon foreigners when the action at hand seeks to ‘give effect’ to a foreign decision. This might be the case of the updating of civil status records. As there is no proper ‘enforcement’ (in its traditional sense) of decisions related to marriage annulment, legal separation or divorce, Art. 75 Brussels IIter, in order to ensure its effet util, should be applied so as to prohibit any security or bond eventually be requested under domestic law for updating civil status records.

6

Art. 75 Brussels IIter Regulation is silent on whether only securities imposed in favour of the State of enforcement itself, mainly to cover procedural expenses if not paid by the interested party, or also securities imposed in favour of the private counterpart fall within its scope of application. The broad terminology used by the provision – which refers to any security however described –, as well as taking into account its aim (on which see infra), advocate for an extensive interpretation so as to prohibit both types of securities or bonds.

7

Even so, the material scope of application of the uniform procedural rule is limited. With a wording that is differing from its normative predecessor in the Brussels IIbis Regulation, but without any substantive changes,10 the prohibition only covers cases where the imposition of securities for enforcement are based on the simple ground of the non-domestic habitual residence or foreign nationality of the applicant (or the non-domestic ‘domicile’, for Ireland11). Securities imposed on grounds other than foreign nationality or habitual residence are eventually allowed under Art. 75 Brussels IIter Regulation, even though other limits – such as human rights law,12 most notably the principle of non-

7 Kramer, in: Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume I, Brussels Ibis Regulation (2016), p. 977, Article 56 note 1. 8 In the different context of the Brussels Ibis Regulation, see J v H Limited (Case C-568/20), ECLI:EU:C:2022: 264, according to which ‘an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State constitutes a judgment and is enforceable in the other Member States if it was made at the end of adversarial proceedings in the Member State of origin and was declared to be enforceable in that Member State’. Commenting the decision, see Hess, Exequatur sur exequatur (ne) vaut? Der EuGH erweitertet die Freizügigkeit von Drittstaatenurteilen nach Art. 39 ff. EuGVVO, IPRax (2022) 349. 9 Similarly, in the context of a different regulation, Kramer (fn.7), Article 56 note 1. 10 McEleavy, Article 51, in Magnus/Mankowski (eds.), European Commentaries on Private International Law, Volume IV, Brussels IIbis Regulation (2017), p. 440, note 1, at note 2. 11 Brussels IIter Regulation, Art. 2(3). Cf. Stapf, Security, bond or deposit, Article 51 note 4. 12 Cf. in the case law of the European Court of Human Rights, Tolstoy Miloslavsky v United Kingdom. Reference, Application no. 18139/91, Judgment 13 July 1995, para. 59 ff., where the Court reiterated ‘that the right of access to the courts secured by Article 6 para. 1 (art. 6–1) may be subject to limitations in the form of regulation by the State. In this respect, the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’. Specifically on the point of securities imposed, the Court did ‘not find that the justification given by the Court of Appeal for ordering security for costs disclosed any arbitrariness’.

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(direct or indirect13) discrimination based on the nationality between Member States – and general principles, such as the principle of proportionally, very well may constitute autonomous and additional limits to securities and bonds.

III. Aim of the provision Following the above, it emerges that Art. 75 Brussels IIter Regulation aims at prohibiting any direct or indirect discrimination against Europeans (be them physical or legal persons) that may be requested to comply with additional requirements to accede enforcement in comparison to persons having their habitual residence in the requested Member State or having its nationality.14

8

Art. 75 Brussels IIter, as similar provisions in other regulations, constitutes a limit on the possibility to establish the so called cautio iudicatum solvi. As mentioned, these were created in some States to ensure either some financial rights of the State, or to protect the ‘nationals’ when they were subject to the enforcement actions of ‘foreigners’.15 Should have the “foreigner’s action” failed because of any reason and would have the ‘national’ won, the local winning party already had at its disposal a sum over which the national decision could have been enforced, so as to avoid the necessity for a crossborder enforcement.

9

At the same time, and as a consequence following the prohibition of discriminations based on nationality or habitual residence, the provision promotes the free movement of decisions themselves, as the principle would be restrained by the maintenance of domestic rules creating greater hurdles on foreigners at the enforcement stage.16

10

However, if the aim of the provision which shapes its interpretative approach is the free movement of 11 decisions rendered by courts of Member States within the European judicial space, no relevance should play the non-European nationality of the foreigner applying for enforcement of an ‘European decision’. This means that Art. 75 Brussels IIter Regulation should be applied both in favour of ‘other European nationals’, as well as to nationals of third countries applying for enforcement in the requested Member State of a decision falling within the scope of application of the instrument.17 This conclusion seems to find comfort in the text of the provision, which broadly refers to bonds required of a ‘party’ applying for the enforcement ‘of a decision given in another Member State’ solely on the ground they are ‘a foreign national’. Considering that the specific aim of the provision could already be pursued under the focal lens of human rights law and European Union law, it may be wondered if rules such as those of Art. 75 Brussels IIter Regulation are nowadays strictly necessary in European statutory law.18 13 Cf. Quinzá Redondo, Artículo 57. Ausencia de caución o depósito alguno, in: Iglesias Buigues/Palao Moreno (eds.), Sucesiones Internacionales. Comentarios al Reglamento (UE) 650/2012 (2015), p. 414, and Würdinger/La Mattina, Articolo 51, in: Simons/Hausmann/Queirolo (eds.), Regolamento “Bruxelles I”. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (2012), p. 878. 14 Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 457. 15 McEleavy (fn. 10), Article 51 note 3. 16 Stapf, Security, bond or deposit, Article 51 note 1; Forcada Miranda, Comentarios prácticos al Reglamento (UE) 2019/1111. Competencia, reconocimiento y ejecución de resoluciones en materia matrimonial, responsabilidad parental y sustracción internacional de menores, p. 457. 17 Stapf, Security, bond or deposit, Article 51 note 1. Cf. Romano, Riconoscimento ed esecuzione delle decisioni nel Regolamento “Bruxelles I”, in: Bonomi (ed), Diritto internazionale privato e cooperazione giudiziaria in materia civile (2009), p. 149, at p. 187. In the context of the Brussels I regime, noting how international treaty law, more specifically the 1954 Hague Convention, establishes the prohibition of imposing bonds only in favor of nationals of the State parties, see Würdinger/La Mattina, Articolo 51, p. 878. Approaching the matter, in the Brussels Ibis Regulation, of the violation, or possible lack thereof, of the non-discrimination principle enshrined in Art. 18 TFEU, Kramer (fn. 7), Article 56 note 2. 18 Already, see McEleavy (fn. 10), Article 51 note 5. Stressing that, under the Brussels IIbis Regulation, the reference therein contained to the ‘nationality’ of a Member State (former Art. 51, letter b)) was a case already falling within the scope of application of “general” EU primary law, thus maintaining its relevance only to cases

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Intro to Arts. 76–84 Brussels IIter Introduction to Articles 76–84

IV. Access to (substantive) proceedings 13

Art. 75 Brussels IIter is focused in its aim and scope of application at the enforcement stage – it does not translate into a prohibition of imposing security or bonds to access proceedings on the merits.19 Which does not mean that the imposition of additional payments on foreigners is legitimate, as the general (national and supra-national) principles of non-discrimination may admit financial burdens to access justice, so long as measures are applicable to all and pursue a legitimate interest.20 The Court of Justice of the European Union, on this matter, has already argued that the right to (procedural21) equal treatment under EU law precludes Member States from requiring security for costs to be given by another EU national for the purposes of bringing an action before local courts.22

Chapter V Cooperation in Matters of Parental Responsibility (Art. 76–Art. 84)

Introduction to Articles 76–84 I. Ratio legis . . . . . . . . . . . . . . . . . . . . . II. Legislative History . . . . . . . . . . . . . . . .

1 4

III. Scope of Application . . . . . . . . . . . . . . .

8

IV. Interpretation . . . . . . . . . . . . . . . . . . . 10 V. Further Law Reform . . . . . . . . . . . . . . . 12

Bibliography: Antomo, Die Neufassung der Brüssel IIa-Verordnung – erfolgte Änderungen und verbleibender Reformbedarf, in: Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 13; Albornoz/Paredes, No turning back: information and communication technologies in international cooperation between authorities, (2021) 17 J. Priv. Int. L. 224; Balthasar-Wach, Die Justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020); v. Bary, Abgabe einer Vormundschaft im grenzüberschreitenden Kontext, JAmt 2019, 363; Beaumont/Walker/Holliday, Parental responsibility and international child abduction in the proposed recast of the Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings, (2016) IFL 307; Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021); Bobrzyn´ska, Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility, Polski Proces Cywilny 2021, 593; Borrás, El papel de la “autoridad central”: los Convenios de La Haya y España, REDI 1993, 63; Brosch, Die Neufassung der Brüssel IIa-Verordnung, GPR 2020, 179; Busch/Rölke, Europäisches Kinderschutzrecht mit offenen Fragen, FamRZ 2004, 1338; Carl/Erb-

19 20 21 22

involving a third-country national; Hausmann, Internationales und Europäisches Ehescheidungsrecht (2013), p. 834, note 284. Similarly, referring to the Brussels I Regulation, Würdinger/La Mattina, Articolo 51, p. 878. McEleavy (fn. 10), Article 51 note 4, and Hausmann, Internationales und Europäisches Ehescheidungsrecht, p. 834 note 284. Most recently, on human rights and costs to appeal (as a ground to refuse recognition and enforcement in the requested Member State), see Cass. civ. Sez. I, ordinanza 23 luglio 2021 n. 21233 – ECLI:IT:CASS:2021: 21233CIV. Würdinger/La Mattina, Articolo 51, p. 878. Anthony Hubbard (Testamentvollstrecker) v Peter Hamburger (Case C-20/92), ECLI:EU:C:1993:280; Data Delecta Aktiebolag and Ronny Forsberg v MSL Dynamics Ltd (Case C-43/95), ECLI:EU:C:1996:357, and Stephen Austin Saldanha and MTS Securities Corporation v Hiross Holding AG (Case C-122/96), ECLI:EU:C:1997:458. In the scholarship, see Schlosser, Prozeßkostensicherheitsleistung durch Ausländer und gemeinschaftsrechtliches Diskriminierungsverbot, EuZW (1993) 659; Wolf, Rechtswidrigkeit der Ausländersicherheit nach § 110 ZPO nach EG- und Verfassungsrecht, RIW (1993) 802; Adobati, Sull’illegittimità del deposito di una cauzione “iudicatum solvi”. Diritto comunitario e degli scambi internazionali (1996) 753; Streinz/Leible, Prozeßkostensicherheit und gemeinschaftsrechtliches Diskriminierungsverbot, IPRax (1998) 162; Ehricke, Art. 12 I (ex 6 I) EG-Vertrag und das nationale Zivilprozeßrecht – Bilanz und Perspektiven, IPRax (1999) 311.

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Klünemann, Bi-nationale Mediation bei grenzüberschreitenden Kindschaftskonflikten, ZKM 2011, 116; del Carmen Seoane de Chiodi, New trends in networks and co-operation among Central Authorities: Mediation as an alternative means for the solution of controversies and the role of the Central Authorities in its application in international return and access procedures, (2012) IFL 65–69; Carpaneto, On the Recast of the Brussels II-bis Regulation’s Regime on Parental Responsibility: few Proposals de jure condendo, in: Queirolo/Heiderhoff (eds.), Party Autonomy in European Private (And) International Law, I (2015), p. 247; S. Corneloup/V. Corneloup, Le contentieux de la coopération des autorités centrales dans le cadre des conventions de La Haye. Compétence administrative ou judiciaire?: Rev. crit. dr. int. pr. 89 (2000), 641; S. Corneloup/Kruger, Le règlement 2019/1111, Bruxelles II: la protection des enfants gagne du ter(rain), Rev. crit. dr. int. pr. 109 (2020), 215; Durán Ayago, Acogimiento en régimen cerrado – Tribunal de Justicia, Sala Segunda, Sentencia de 26 de abril de 2012. Asunto C-92/12 PPU [Health Service Executive/S.C. y A.C], AEDIPr 2012, 956, Dutta, Entwicklungen im internationalen Familien- und Erbrecht der Europäischen Union bis Gogova, ZEuP 2016, 427; Erb-Klünemann, Deutsch-polnische Zusammenarbeit bei internationalen Kindschaftskonflikten, ZKM 2017, 242; Erb-Klünemann/Kößler, Von der Brüssel IIa- zur Brüssel IIb- Verordnung, Reform der europäischen Vorschriften für grenzüberschreitende Kindschaftsverfahren, NDV 2021, 76; Erb-Klünemann/Niethammer-Jürgens, Die neue Brüssel IIa-VO, Neue Regelungen für die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und für internationale Kindesentführungen, FamRB 2019, 454; Finger, Zuständigkeiten und Verfahrensabläufe in internationalen Kindschaftssachen, FamRB 2018, 489; Finger, Die Zuständigkeit und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen – Verordnung (EU) Nr. 2019/1111 des Rates v. 25.6.2019 und die Neufassung der VO Nr. 2201/2003 (Brüssel 2a), FuR 2019, 640; Flindt, Die neue Brüssel IIb-VO, NZFam 2022, 669; Frohn/Sumner, Herziening Brussel IIbis: beschrijving van de nieuwe regeling, NIPR 2020, 391; Fucik, Practical issues in cross-border children cases, regarding the effective use of the Brussels IIa Regulation and the 1996 Hague Convention: the perspective of the Austrian Central Authority, (2016) IFL 169; Gallep/Rölke, Neue rechtliche Regelungen bei den Erziehungshilfen im Ausland – Sind jetzt alle Herausforderungen gemeistert?, NDV 2020, 103; Garber, Neuerungen im Ehe- und Familienrecht: Zur Revision der Brüssel IIa-VO und zu den Güterrechtsverordnungen, in: König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109; Garber/Lugani, Die neue Brüssel llb-Verordnung, NJW 2022, 2225; González Beilfuss, La sustracción de menores en el nuevo reglamento 2019/1111, in: Relaciones transfronterizas globalización y derecho – Homenaje al Prof. Dr. José Carlos Fernández Rozas (2020), p. 383; González Beilfuss, Cooperation between Authorities in Child Protection Matters, in: Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349; Grubisˇic´, The Cooperation of Central Authorities under the Maintenance Regulation, in: Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415; Honorati, The Commission’s proposal for a recast of Brussels IIa Regulation, (2017) IFL 97; Knöfel, Die Rolle der Zentralen Behörden bei der grenzüberschreitenden Vollstreckung von Unterhaltstiteln in der Europäischen Union, IPRax 2018, 487; Kohler/Pintens, Entwicklungen im europäischen Personen-, Familien- und Erbrecht 2018–2019, FamRZ 2019, 1477; Kruger, Brussels IIa Recast moving forward, NIPR 2017, 462; Lortie, The Hague 1996 Child Protection and 1980 Child Abduction Conventions compared with the Brussels IIter Regulation, NIPR 2021, 670; Mansel/Thorn/R. Wagner, Europäisches Kollisionsrecht (2019): Konsolidierung und Multilateralisierung, IPRax 2020, 97; Martiny, New efforts in judicial cooperation in European child abduction cases, Polski Proces Cywilny 2021, 501; Matyk, Das Europäische Netz des Notariats: ZEuP 2010, 497; McClean, International Co-Operation in Civil and Criminal Matters (3rd ed. 2012); Menne, Aktuelle Praxisfragen grenzüberschreitender Kindschaftssachen – Internationale Richternetzwerke, FamRB 2015, 441; Menne, Dialogue of Judges – Verbindungsrichter und internationale Richternetzwerke, Ein innovatives Instrumentarium in grenzüberschreitenden Familiensachen, JZ 2017, 332; Menne, Verbindungsrichter im internationalen Familienrecht in Deutschland – aktueller Stand und Ausblick: FamRZ 2018, 1644, Menne, Die Arbeit der deutschen Verbindungsrichter im internationalen Familienrecht, ZEuP 2019, 472; Menne, Grenzüberschreitende richterliche Kooperation im internationalen Familienrecht und Verbindungsrichter, IPRax 2020, 86; Menne, Verbindungsrichter: Schmierstoff im Räderwerk des internationalen Familienrechts – Eine Standortbestimmung des deutschen Verbindungsrichterwesens, in: Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 109; Menne, Internationalisierung im Familienrecht: Die deutschen Verbindungsrichter im Europäischen Justiziellen Netz für Zivil- und Handelssachen sowie im Internationalen Haager Richternetzwerk, NJ 2021, 498; Menne, Die englisch-deutschsprachigen Familienrichterkonferenzen – internationales Familienrecht „at its best“, FamRB 2022, 162; Müller-Freienfels, Deutscher Partikularismus im Internationalen Kindesentführungsrecht – Dezentralisation der „Zentralen Behörde“?, JZ 1988, 120; Pirrung, Verfahrensrechtliche Anforderungen bei Zwangsunterbringung eines (suizid-)gefährdeten Jugendlichen in einem anderen EU-Staat, IPRax 2013, 404; Romano, Revised Brussels ter Regime: Cooperation between Central Authorities and between Judges, in: New Rules for International Families: Revised Brussels IIter regime, University of Osijek, Croatia (on-line seminar), 3 December 2020, 2020, p. 1–12, available at http://archive-ouverte.unige.ch/unige:145910 (last visited 25 August 2022); Schlauß, Die Aufgaben des Bundesamts der Justiz im internationalen Kindschaftsrecht, ZKJ 2016, 162; Schlauß, Grenzüberschreitende Unterbringung von Kindern und Jugendlichen im EU-Ausland durch deutsche Jugendämter, JAmt 2019, 494; Schlauß, Internationales Kindschaftsrecht – Aktuelle Entwicklungen bei den Aufgaben des Bundesamtes für Justiz, ZKJ 2019, 255; Schlauß,

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Intro to Arts. 76–84 Brussels IIter Introduction to Articles 76–84 Internationales Kindschaftsrecht – Aktuelle Entwicklungen bei den Aufgaben des Bundesamtes für Justiz, ZKJ 2022, 206; A. Schulz, Das deutsche internationale Kindschaftsrecht, FamRZ 2018, 797; A. Schulz, Die Neufassung der Brüssel IIa-Verordnung, FamRZ 2020, 1141; A. Schulz, The Cooperation between Central Authorities under the Brussels IIa Regulation, in: Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399; de Sousa Gonçalves, O mecanismo de colocação da criança noutro Estado-Membro no Regulamento Bruxelas II bis, in: Portela (ed.), Os novos horizontes do constitucionalismo global, 2017, p. 389; de Sousa Gonçalves, The new Brussels IIb Regulation on Matrimonial and Parental Responsibility Matters, in: FS Andreas Schwartze (2021), p. 133; Veith, Die Rolle der Zentralen Behörde und des Jugendamts bei der Geltendmachung und Durchsetzung von Unterhaltsforderungen, FPR 2013, 46; M.-P. Weller, Die Reform der EuEheVO, IPRax 2017, 222; Wendelin, Zwischen Konsolidierung und Einhegung: Auslandsmaßnahmen der Jugendhilfe und die SGB VIII-Reform, ZKJ 2019, 338; Wicke/Reinhardt, Die Auswirkungen der sog. „Brüssel IIa-Verordnung“ auf die Arbeit der Jugendämter, JAmt 2007, 453; Winkler v. Mohrenfels, Von der Konfrontation zur Kooperation Das europäische Kindesentführungsrecht auf neuem Wege, IPRax 2002, 372; Wißling, Kind von Welt beim EuGH, GPR 2017, 255; Zˇupan, Cooperation between Central Authorities, in: Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265; Zˇupan/Hoehn/Kluth, Central Authority Cooperation under the Brussels IIter Regulation, (2020/2021) 22 Yb. P. I. L. 183.

I. Ratio legis 1

The ratio legis underlying Chapter V of the Regulation (Arts. 76–84) is to enhance the Regulation’s efficiency, notably by providing for a better and closer cooperation between Central Authorities of the Member States. It is an important objective of the Recast to spell out responsibilities and obligations of Central Authorities in greater detail,1 in order to strengthen the position and the powers of the Authorities considerably.2 Key novelties of the Recast in the field of Central Authority cooperation are Art. 80,3 providing for cross-border collecting and exchanging information, and introducing a duty of the Central Authority to provide a report on the situation of the child upon request, and Art. 82,4 clarifying the consent procedure with regard to a placement of a child in another Member State. Recent statistics of the German Central Authority, the Bundesamt für Justiz (BfJ), show a strong increase of case numbers in the field of Central Authority cooperation since 2015 and again since 2020/2021,5 and thus underline the practical importance of Chapter V.

2

Under many other current legal instruments on child protection (infra Introduction 76–84 note 4 [Knöfel]), Central Authority cooperation already is a “crucial vehicle”6 or a pivotal point. Now it also forms an integral part of the machinery of the Brussels IIter Regulation. The tasks of Central Authorities are manyfold and will be carried out “both in general matters and in specific cases”.7 Those tasks include, but are not limited to, “a general information and coordination function”.8 In the first

1 COM (2016) 411 final, p. 5; see Honorati, (2017) IFL 97, 113; Balthasar-Wach, Die Justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020), p. 384 et seq., p. 389 et seq.; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153; Martiny, Polski Proces Cywilny 2021, 501, 506; Flindt, NZFam 2022, 669, 681. 2 Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Durchführung der Verordnung (EU) 2019/ 1111 über die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen sowie zur Änderung sonstiger Vorschriften, BT-Drucks 19/28681, p. 25 (19.4.2021); see also Schlauß, ZKJ 2019, 255, 260. 3 A. Schulz, FamRZ 2020, 1141, 1149; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192 et seq. 4 Antomo in Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 13, 54 et seq.; Zˇupan/ Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 195 et seq. 5 Schlauß, ZKJ 2016, 162, 165 et seq.; Schlauß, ZKJ 2022, 206, 207; Schlauß/Fucik in Garber/Lugani (eds.), Die Brüssel IIb-Verordnung (2022), note 16/13 (Germany), note 16/20 (Austria): see also the statistical information on cross-border placements (application of Art. 56 Brussels IIbis Regulation in twelve Member States) given by Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 44, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/IPOL_ STU(2016)556945_EN.pdf (last visited 4 February 2022). 6 Lowe/Everall/Nicholls, International Movement of Children, 2nd ed. 2016, note 5.41 (p. 88). 7 Recital (74). 8 COM (2002) 222 final, p. 19.

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place, Central Authorities “collect and exchange information on the situation of the child”.9 Central Authorities also support interested parties to judicial proceedings on parental responsibility, e.g. in having judgments recognised and enforced.10 Central Authorities also facilitate cross-border cooperation of judicial authorities of different Member States,11 especially with regard to the application of the Regulation rules on transfer of jurisdiction, on provisional and protective measures in urgent cases, and on lis pendens and dependent actions.12 What is more, Central Authorities provide essential logistical aid and expertise in cross-border family matters13 and “facilitate mediation”14 or any “amicable resolution of family disputes.”15 Across their large field of activity, Central Authorities are designed to, and have mostly succeeded in, replacing traditional, but cumbersome channels of international cooperation in civil matters, especially the diplomatic or consular channel.16 In specific cases, Central Authorities cooperate directly with each other, and support courts and judicial authorities in doing so.17 Cooperation of a specialised agency with a similar counterpart in another Member State often proves to be efficient and quickly.18 As Central Authorities are highly specialised repeat players, a Central Authority system is apt to “coordinate and ‘channel’ the desired co-operation.”19 The Central Authority system creates synergetic effects, fosters mutual understanding and speedy responses,20 and helps to build up expert knowledge and experience. As far as Central Authorities are put in place, foreign offices or ministries are excluded from the administration of justice, so that matters of foreign relations and political issues21 do not enter into it.22 A Central Authority is most often an agency or an administrative body subordinated to a ministry of justice, or such ministry itself (see infra Art. 76 note 3 [Knöfel]). The Central Authority system meets with a number of practical problems, mostly originating in the 3 somewhat cumbersome workflow in the cross-border dimension.23 Central Authority cooperation always relies on a rather technical set or rules, to which the “danger of excessive bureaucracy”24 is inherent. But as a whole, the Central Authority system is regarded as a successful tool of cross-border legal assistance. Under the Hague Conventions, Central Authorities are deemed to be “the ‘engine’ for the desired co-operation.”25 The Central Authority system as established by Chapter V is also vital to the functioning of the Brussels regime on parental responsibility,26 although under the Brussels II9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399. Recital (79) cl. 1. Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 268 et seq.; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 184. Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. Recital (74). McClean, p. 7 f.; Menne, ZEuP 2019, 472, 480 et seq. McClean, p. 7 f.; van Loon, Rec. des Cours 380 (2015), 9, 35 f., 59 f. McClean, p. 8. Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 437 (emphasis in the original); see also González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 352. McClean, p. 8. On foreign relations in PIL Knöfel in FS Rolf A. Schütze (2014), p. 243 et seq. McClean, p. 8. See in detail A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 404 et seq.; see also European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 92 et seq. Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 185; see Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 29 KSÜ note 3. Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438 (emphasis in the original); see also Kropholler, Liber Amicorum Kurt Siehr (2000), p. 379, 389. Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 83 note Pirrung 404; Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11; see also Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271: “one of the most important ‘secret ingredients’ in serving justice in the international arena” (emphasis in the original).

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Intro to Arts. 76–84 Brussels IIter Introduction to Articles 76–84 ter Regulation, Central Authorities rather act as a “logistical tool”27 and thus play a smaller role than they do under the Hague Conventions. This is because the Regulation, unlike the Hague Conventions, provides for direct contacts between courts in many cases or situations, so that cross-border cooperation will often take place between the judicial bodies involved, not necessarily or exclusively between adminstrative agencies.28

II. Legislative History 4

The idea of Central Authorities, operating on the basis of a specific body of rules on cross-border cooperation, is well established in PIL in general and in international family law in particular. The Central Authority system can be traced back to the mid-20th century.29 Under the Hague Protection of Minors Convention of 1961,30 it proved to be a severe shortcoming that the Convention does not provide for any organizational measures and lacks clear definitions of reponsibilities, so that duties imposed upon the Contracting States were ignored quite often, and violations of the Convention went unnoticed.31 The Central Authority system has been designed to remedy this defect. It is often considered an invention and notable innovation of the Hague Conference on Private International Law.32 Predecessors of Chapter V or similar sets of rules in other international instruments on legal assistance can be identified as follows:33 Arts. 2 (2), 6 of the UN Maintenance Convention (1956)34 Art. 2 of the Hague Service Convention (1965),35 Art. 2 of the Hague Evidence Convention (1970),36 Arts. 6–7 of the Hague Child Abduction Convention (1980),37 Arts. 2–6 of the European Custody Convention (1980),38 Arts. 6–13 of the Hague Adoption Convention (1993),39 Arts. 29–39 of the Hague Child Protection Convention (1996),40 Arts. 28–37 of the Hague Protection of Adults Convention (2000),41 Chapters II and III of the Hague Child Support Convention (2007),42 Arts. 49–63 Eu27 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 274. 28 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 275. 29 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 184; Schlauß/Fucik in Garber/Lugani, note 16/1. 30 Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, BGBl. 1971 II 217. 31 Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 185; see Pirrung, RabelsZ 57 (1993), 124, 135; Kropholler, Liber Amicorum Kurt Siehr (2000), p. 379, 388; Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 29 KSÜ note 1; Staudinger/Pirrung (2018) note D 146. 32 Del Carmen Seoane de Chiodi, [2012] IFL 65; McClean, p. 35. 33 See Knöfel, IPRax 2018, 487, 488; Lowe/Everall/Nicholls, note 18.2 (p. 412). 34 UN Convention on the Recovery Abroad of Maintenance, New York 20. June 1956, UNTS 268 (1957), No 3850; on the cooperation rules see OLG Celle BeckRS 2016, 04627 para 6; Ancel, Mélanges en l’honneur de Yvon Loussouarn (1994), p. 1, 6; Veith, FPR 2013, 46. 35 Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, BGBl. 1977 II 1453. 36 Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, BGBl. 1977 II 1472. 37 Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, BGBl. 1990 II 207. 38 European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, ETS No. 105. 39 Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, BGBl. 1993 II 1035. 40 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, BGBl. 2009 II 603; on the cooperation rules see Benicke, IPRax 2013, 44, 51. 41 Hague Convention of 13 January 2000 on the International Protection of Adults, BGBl. 2007 II 323. 42 Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, ABl. EU 2011 L 192/51 = Rev. crit. dr. int. pr. 97 (2008), 411–432 = 47 I.L.M. 257–277 (2008); on the cooperation rules see Schlauß, ZKJ 2017, 214; Schlauß/Meysen, JAmt 2017, 2, 4.

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ropean Maintenance Regulation (2008).43 Arts. 76–84 must be read in the light of all neighbouring legal instruments providing for Central Authority cooperation (infra Introduction 76–84 note 10 [Knöfel]). In their short legal history, Central Authorities have developed from a more formal role towards a 5 much stronger position.44 Doctrine distinguishes between three generations of rules on Central Authorities: a first generation of rules (e.g. Hague Service Convention, Hague Evidence Convention), according to which Central Authorities mainly convey information, a second (transitional) generation of rules, which established Central Authorities as an autonomous “bi-directional system”45 already, and a third generation (e.g. Hague Abduction Convention), which gave Central Authorities their present role, i.e. very broad responsibilities.46 When overlooking legal instruments involving Central Authorities in their entirety, it becomes clear that the wording of the respective sets of rules has successively increased in length as well as in depth,47 corresponding directly to the ever-growing functions and powers of Central Authorities. The leitmotif of cross-border cooperation of Central Authorities was introduced to the acquis com- 6 munautaire with the Brussels IIbis Regulation of 2003.48 As the Brussels II Convention of 1998 and Regulation no. 1347/2000 were (almost exclusively)49 limited to matrimonial matters, those instruments felt no need, and did not yet provide, for rules on cooperation of Central Authorities.50 But the Brussels IIbis Regulation embraced the well-established Central Authority system, as the Regulation applied to matters of parental responsibility, and therefore strongly relied on the existing Hague instruments.51 The Brussels IIbis Proposal of 2002 considered the introduction of a Central Authority system “(a)n essential element of the Proposal.”52 Chapter IV (Arts. 53–58) of the Brussels IIbis Regulation was clearly modelled on the cooperation rules of the Hague Child Protection Convention of 1996,53 even if the EU set of rules turned out to be much shorter than its sibling from the Hague.54 Until today, Arts. 53–58 Brussels IIbis Regulation seem to have generated only one request for a preliminary ruling to the ECJ yet. The ECJ decided in 2012 that the consent of the requested State to a placement of a child in another Member State (Art. 56 (2) Brussels IIbis Regulation) must be given by an authority governed by public law,55 and took the opportunity to underline “the importance of the role of the central authorities under Art. 55 of the Regulation”.56 What is more, the ECJ dealt 43 On the cooperation rules see Heger/Selg, FamRZ 2011, 1101, 1103; Veith, FPR 2013, 46, 47; Rauscher/Andrae, EuZPR/EuIPR, IV, 4. Aufl. 2015, Vorbem. Artt. 49 ff. EG-UntVO note 2. 44 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 269. 45 Del Carmen Seoane de Chiodi (2012), IFL 65; see also Lowe/Everall/Nicholls, note 18.2 (p. 412). 46 Del Carmen Seoane de Chiodi (2012), IFL 65 et sequ; see also van Loon, Rec. des Cours 380 (2015), 9, 59. 47 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 270 et seq. 48 See in great detail A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399 et seq. 49 See A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 400, who points to the fact that the Brussels II regimes dealt with ancillary jurisdiction over matters of parental responsibility. 50 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399 et seq.; Magnus/Mankowski/De Lima Pinheiro, Art. 53 Brussels IIbis Regulation note 1. 51 Münchener Kommentar zum FamFG/Gottwald, 3rd ed. 2019, Art. 53 Brussels IIbis Regulation note 1. 52 COM (2002) 222 final, p. 19. 53 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 268; A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 400 et seq.; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 185. But see Gitschthaler/Garber, Internationales Familienrecht (2019), Vor Art. 53 Brüssel IIa-VO note 1, Art. 53 Brüssel IIa-VO note 1; Rauscher/Rauscher, Art. 53 Brüssel IIa-VO note 1, who primarily refer to the Hague Child Abduction Convention as a model for Central Authorities under the Brussels IIbis Regulation. 54 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 400 et seq. 55 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 437 para. 95 note Pirrung 404. 56 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 83 note Pirrung 404; see also Durán Ayago, AEDIPr 2012, 956 et seq.

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Intro to Arts. 76–84 Brussels IIter Introduction to Articles 76–84 shortly with Chapter IV of the Brussels IIbis Regulation in a judgment of 2009 (A.)57 as well as in two judgments of 2010 (Purrucker I and Purrucker II).58 In Purrucker I, the ECJ described the cooperation rules as one of three pillars of the Brussels IIbis system (besides the rules on jurisdiction and on recognition and enforcement), and noted that “(i)t should be possible to put such cooperation in motion in order to provide assistance, in a way that is compatible with the Regulation and with national legislation, in exceptional circumstances of urgency.”59 The sister provisions (Chapter VII – Arts. 49–63) of the European Maintenance Regulation were at the heart of a judgment handed down by the ECJ in 2018.60 7

As the Report on the Application of the Brussels IIbis Regulation of 2014 says, the functioning of Central Authorities under Chapter IV of the Brussels IIbis Regulation was “overall positive”, but the provisions on cooperation were “not sufficiently specific.”61 In the legislative process leading to the Recast, it was felt that Chapter IV of the Brussels IIbis Regulation did not serve as stable ground for cross-border cooperation under the Regulation.62 The travaux préparatoires identified cooperation between Central Authorities as one of “six main shortcomings” of the Brussels IIbis regime.63 Central Authority cooperation ranked among (five out of six) shortcomings where a time issue was identifed.64 Stakeholders and Member States observed an “unclear drafting” of the cooperation rules,65 leading to delays or at least to a lack of speed in processing requests,66 and thus putting the best interests of the child at risk.67 Further, the Report pointed to certain translation issues, and emphasized that holders of parental responsibility experienced a very different amount of Central Authority assistance across the Member States in the enforcement of access judgments.68 Hence, the Commission Proposal of 2016 intended to improve the Central Authority system as a tool of legal assistance.69 The Recast included a thorough re-drafting of the cooperation rules,70 with the effect that the number and length of provisions on Central Authorities once again was augmented considerably.71 As far as Central Authority cooperation is concerned, the Brussels IIter Regulation seems to have moved

57 A., (Case C-523/07) (2009) ECR I-2805 para 62; see Balthasar-Wach, Die Justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020), p. 383. 58 Bianca Purrucker v. Guillermo Vallés Pérez, (Case C-256/09), IPRax 2011, 378 note Pirrung 351 – Purrucker I (see Huter, Eur. L. Rptr. 2010, 332; Feraci, Riv. dir. int. priv. proc. 2011, 107); Bianca Purrucker v. Guillermo Vallés Pérez, (Case C-296/10), NJW 2011, 363 – Purrucker II. 59 Bianca Purrucker v. Guillermo Vallés Pérez, (Case C-256/09), IPRax 2011, 378, 385 note 93 – Purrucker I; see Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 269. 60 M.S. v. P.S., (Case C-283/16), IPRax 2018, 515 note Knöfel 487; see also Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 418 ff. 61 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11; see M.P. Weller, IPRax 2017, 222, 228 f.; see also European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 93: “not specific enough”; see Balthasar-Wach, Die Justizielle Zusammenarbeit in Zivilsachen am Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union (2020), p. 385. 62 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271; Althammer/Großerichter, Brussels IIa, Rome III, 2019, Art. 53 Brussels IIa note 7; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 187 et seq. 63 COM (2016) 411 final, p. 3. 64 COM (2016) 411 final, p. 2 et seq.; see S. Corneloup/Kruger, Rev. crit. dr. int. pr. 109 (2020), 215, 220; Zˇupan/ Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 186. 65 COM (2016) 411 final, p. 5. 66 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 273. 67 COM (2016) 411 final, p. 5. 68 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11; see Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 187. 69 COM (2016) 411 final, p. 16. 70 Frohn/Sumner, NIPR 2020, 391, 410–412. 71 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 273.

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Intro to Arts. 76–84 Brussels IIter

even closer towards its original model, the Hague Child Protection Convention of 1996, than the Brussels IIbis Regulation.72

III. Scope of Application The Central Authorities’ overarching function “to assist with the application of this Regulation” 8 (Art. 76 cl. 1) is explicitly confined to “matters of parental responsibility”. Whereas the Brussels IIbis Commission Proposal of 2002 contemplated the Central Authority system to cover “both divorce and parental responsibility”,73 the provisions of Chapter V do no refer to matrimonial matters at all.74 What is more, Chapter V does not apply to the processing of return applications under the Hague Child Abduction Convention of 1980, as is evidenced by Recital (73). This is because Art. 19 of the Hague Child Abduction Convention declares a decision under the Convention concerning the return of a child not to determine the merits of rights of custody.75 Chapter V (Arts. 76–84) does not rule on the functions of Central Authorities exhaustively and comprehensively, but leaves many isssues to other provisions of the Brussels IIter Regulation, especially to Chapter III (Arts. 22–29), which spells out many details of Central Authorities’ procedure and practice with regard to international child abduction.76

9

IV. Interpretation The guidelines of interpretation already established under Chapter IV of the Brussels IIbis Regula- 10 tion77 remain valid for Arts. 76–84. Chapter V is to be interpreted broadly within its material scope of application.78 As Recital (79) clearly indicates, the paramount guiding principle when applying Chapter V is the protection of the best interests of the child.79 What is more, Arts. 76–84 bear close relationships with all other sets of rules on Central Authority cooperation (supra Introduction 76–84 note 4 [Knöfel]), especially with the Hague Abduction Convention, the Hague Child Protection Convention, and the EU Maintenance Regulation.80 All these sister instruments ought to be interpreted harmoniously. Basic terms of cross-border cooperation common to all above-mentioned sets of rules will ordinarily be interpreted in a uniform way. The ECJ declared the Hague Abduction Convention and the Brussels IIbis Regulation to “form a unitary body of rules”,81 which must be interpreted by the ECJ for the sake of uniform application.82 The overlap and close connection of these two legal instruments must lead to a uniform interpretation of crucial terms and concepts of Central authority 72 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459. 73 COM (2002) 222 final, p. 19. 74 See Althammer/Großerichter, Art. 53 Brussels IIa note 3; Magnus/Mankowski/de Lima Pinheiro, Art. 53 Brussels IIbis Regulation note 2. 75 Recital (73) cl. 1 (on this Recital see Schlauß/Fucik in Garber/Lugani, note 16/60: “somewhat cryptic”); see Barbara Mercredi v. Richard Chaffe, (Case C-497/10 PPU), IPRax 2012, 340, 344 para. 65 note Siehr 316; see also C v. M, (Case C-376/14 PPU), FamRZ 2015, 107, 109 para 40; Deuschl, NZFam 2021, 149, 150. 76 See in more detail Carpaneto in Queirolo/Heiderhoff (eds.), Party Autonomy in European Private (And) International Law, I (2015), p. 247, 283, 285; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 194 et seq.; Bobrzyn´ska, Polski Proces Cywilny 2021, 593 et seq. 77 Althammer/Großerichter, Art. 53 Brussels IIa note 5. 78 Althammer/Großerichter, Art. 53 Brussels IIa note 5. 79 Althammer/Großerichter, Art. 53 Brussels IIa note 5. See generally on “Best Interests of the Child as the Centre of Gravity” of the Brussels IIter Regulation Biagioni/Carpaneto, (2020/2021) 22 Yb. P.I.L. 139 et seq. 80 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11; Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 424; Mankowski in Garber/Lugani, note 15/39. 81 Opinion 1/13 of the Court (Grand Chamber), FamRZ 2015, 21, 23 para 78 note Dutta (Opinion pursuant to Article 218(11) TFEU – Convention on the civil aspects of international child abduction – Accession of third States – Regulation (EC) No 2201/2003 – Exclusive external competence of the European Union). 82 J. McB. v. L. E. (Case C-400/10 PPU), IPRax 2012, 345, 347 et seq. paras 32–37 note Siehr 316; C v. M, (Case C-376/14 PPU), FamRZ 2015, 107, 110 para 58; see also Pirrung in FS Jan Kropholler (2008), p. 399, 406.

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Intro to Arts. 76–84 Brussels IIter Introduction to Articles 76–84 cooperation also. By contrast, the interpretation of Arts. 76–84 cannot draw any inspiration from the Brussels Ia Regulation, as Chapter V is not mirrored at all in the Brussels Ia regime.83 11

For practitioners’ purposes, Chapter V can also be interpreted in the light of a couple of official publications of law-making agencies or organizations in the field of international family law (e.g. guidelines, recommendations, reports, observations of Special Commissions)84 developed with respect to the Hague Conventions on matters of parental responsibility and child abduction. Unlike the Hague Conventions of 1980 and 1996, the Brussels IIter Regulation cannot take advantage of a neatly drafted explanatory report,85 but can only rely on the Recitals and on some scarce remarks in the Commission Proposal of 2016 and in some other EU material, which is a considerable disadvantage of the EU framework.86 The Pérez-Vera Report on the Hague Abduction Convention87 and the Reports on the Child Protection Convention, i.e. the Special Commission Report88 and the Lagarde Report,89 are observed to be cited regularly90 by courts91 and authorities. It is desirable to introduce explanatory reports on EU Regulations also,92 especially as there is no Guide or Practical Handbook relating to the Brussels IIter Regulation as such.93 In the meantime, the interpretation of Chapter V can at least look to the well-known Explanatory Reports and to other supplementary sources and publications on the neighbouring Hague instruments. As Central Authority cooperation is concerned, the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”94 provides especially valuable orientation. The Practice Guide deals with many aspects of Central Authority practice under the Hague Abduction Convention, e.g.with “key operating principles”,95 with “establishing and consolidating the Central Authority”,96 with the role of the Central Authority with regard to outgoing applications,97 incoming applications98 and access applications,99 and with “other important functions and issues for Central Authorities.”100

V. Further Law Reform 12

Some legal issues and practical problems concerning Central Authority cooperation are not mentioned in or addressed by the Brussels IIter Regulation. Firstly, a general provision on timing ought to be developed.101 Such a provision is desirable de lege ferenda, especially if it offers the possibility to indicate extreme urgency of a particular case.102 Secondly, and even more importantly, the Regula83 Geimer in Geimer/Schütze, Europäisches Zivilverfahrensrecht, 4th ed. 2020, Art. 53 Brussels IIbis Regulation note 1; Mankowski in Garber/Lugani, note 15/19. 84 For an overview see Albornoz/Paredes, (2021) 17 J. Priv. Int. L. 224, 231. 85 Cf. on the Brussels IIbis Regulation Pirrung in FS Jan Kropholler (2008), p. 399, 405 et seq. 86 Beaumont/Walker/Holliday, (2016) IFL 307, 315 et seq.; Lortie, NIPR 2021, 670, 678. 87 Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426. 88 Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148. 89 Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535. 90 Schuz, The Hague Child Abduction Convention, A Critical Analysis (2013), p. 95; Beaumont/Walker/Holliday, (2016) IFL 307, 316. 91 See on the Pérez-Vera Report Monasky v. Taglieri, 140 S. Ct. 719 (2020). 92 Beaumont/Walker/Holliday, (2016) IFL 307, 316. 93 Lortie, NIPR 2021, 670, 678. But see the “Practice Guide for the application of the Brussels IIa Regulation” (2014), available at https://e-justice.europa.eu/fileDownload.do?id=b1f086c0-8d5b-4cb9-ad0e-85e38d528c7a (last visited 31 March 2022). 94 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003). 95 Guide to Good Practice, p. 10 et seq. 96 Guide to Good Practice, p. 22 et seq. 97 Guide to Good Practice, p. 32 et seq. 98 Guide to Good Practice, p. 42 et seq. 99 Guide to Good Practice, p. 58 et seq. 100 Guide to Good Practice, p. 69 et seq. 101 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 198. 102 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 198.

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tion continues to lack an equivalent to Art. 58 European Maintenance Regulation,103 which elaborates on “transmission, receipt and processing of applications and cases through Central Authorities.”104 Such technical questions are most important for the daily work of the Central Authorities. Yet the Regulation does not address them, neither does a Recital. A more detailed provision drafted on the model of Art. 58 European Maintenance Regulation could offer valuable guidance to practitioners, especially if a duty to assist applicants in complying with the Regulation would be imposed upon the Central Authorities.105 Further, it is striking that unlike some other recently updated PIL Regulations,106 the Brussels IIter Regulation does not oblige the Central Authorities to use appropriate modern communications technology, in order to ensure speedy transmission of requests and communications.107 It is desirable for the Brussels IIter Regulation to keep up with other EU instruments on cross-border cooperation in the field of digitalization. Another problem that should be addressed is the question as to whether Central Authorities can decline to carry out requests under the Regulation. Once again, this issue should be dealt with in analogy to the European Maintenance Regulation, which boasts detailed rules on the rejection of applications by the Central Authorities in Art. 58 (8) and (9).108 Some other proposals tabled during the process of drafting the Brussels IIter Regulation do not de- 13 mand further consideration, e.g. the proposal109 to hold Central Authorities responsible for the creation and maintenance of a national register concerning children placed under Art. 82 (cf. infra Art. 82 note 22 [Knöfel]).

Article 76 Designation of Central Authorities Each Member State shall designate one or more Central Authorities to assist with the application of this Regulation in matters of parental responsibility 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 directly to the relevant Central Authority with jurisdiction. Where a communication is sent to a Central Authority without jurisdiction, the latter shall forward it to the Central Authority with jurisdiction and inform the sender accordingly. I. Central Authorities of the Member States . . 1. Designation of Central Authorities . . . . . . . 2. Several Central Authorities . . . . . . . . . . .

1 2 7

II. Duty to Forward a Communication . . . . .

8

I. Central Authorities of the Member States Art. 76 is the immediate successor to Art. 53 Brussels IIbis Regulation, which has been integrated almost to the letter into the wording of the present provision.1 Taking the global level into account, 103 104 105 106 107 108 109 1

Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 199. See on Art. 58 European Maintenance Regulation Andrae, NJW 2011, 2545, 2549. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 199. See on the Evidence Regulation (EU) 2020/1783 Knöfel, RIW 2021, 247, 258 et seq.; Fumagalli, Riv. dir. int. priv. proc. 2021, 844, 858 et seq.; see on the Service Regulation (EU) 2020/1784 Knöfel, RIW 2021, 473, 478 et seq. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 199. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 199. Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 63, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/ IPOL_STU(2016)556945_EN.pdf (last visited 4 February 2022). Althammer/Großerichter, Art. 53 Brussels IIa note 7; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 188.

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1

Art. 76 Brussels IIter Designation of Central Authorities Art. 76 is the equivalent of Art. 6 of the Hague Child Abduction Convention of 1980, of Art. 6 of the Hague Adoption Convention of 19932 and of Art. 29 of the Hague Child Protection Convention of 1996.3 1. Designation of Central Authorities 2

According to Art. 76, each Member State is required to designate one or more Central Authorities to discharge the duties which are imposed by the Regulation upon such authorities. Art. 103 (1) (f) demands to communicate contact details concerning Central Authorities (names, addresses and means of communication) to the Commission. Member States are expected to disclose any change in the contact details.4 Pursuant to Art. 103 (4), the Commission has to make the information publicly available through appropriate means, including through the European e-Justice Portal. Detailed information on the Central Authorities of all 26 Regulation States (Member States except Denmark) can be accessed easily on the internet site “European Judicial Atlas” in the section on “Matrimonial matters and matters of parental responsibility (recast)”.5

3

When States are obliged to designate a Central Authority for the purposes of international judicial assistance, the task will be usually given to an agency exercising executive powers.6 Most often, the duties of the Central Authority will not be conferred to some new authority or body,7 but to an already existing agency or ministry “entrusted with the application of international conventions in this area,”8 most commonly to a ministry of justice.9 Under Art. 76, this expectation was clearly met.10 As of 31 August 2022,11 the ministry of justice, or an agency or an office subordinated to the ministry of justice, e.g. the Chief Public Prosecutor (parquet général) in Luxembourg and the Directorate-General for Rehabilitation and Prison Services in Portugal, has been designated as Central Authority by 21 out of 26 Regulation States. Under German Law, the Bundesamt für Justiz (BfJ), which is an agency under the supervision of the German Ministry of Justice (BMJV), officiates as the one and only Central Authority in Germany.12 In four Regulation States (Estonia, Lithuania, Hungary, Slovakia), another (independent) authority or government agency has been designated next to the Ministry of Justice.13 Five other Regulation States (Croatia, Czech Republic, Malta, Slovenia, Sweden) did not involve 2 Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 185. 3 Lortie, NIPR 2021, 670, 689 (fn. 79). 4 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 15. 5 See https://e-justice.europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_paren tal_responsibility_recast_ (last visited 31 August 2022). 6 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 352. 7 McClean, p. 35. 8 COM (2002) 222 final, p. 19. 9 McClean, p. 35. 10 Cf. also on Art. 53 Brussels IIbis Regulation Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271; see also European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 93. 11 See https://e-justice.europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_ of_par ental_responsibility_recast_ (last visited 31 August 2022). 12 IntFamRVG sec. 3 (1) No. 1 as amended by Art. 1 No 4 Gesetz zur Durchführung der Verordnung (EU) 2019/1111 über die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen sowie zur Änderung sonstiger Vorschriften of 10 August 2021, BGBl. 2021 I 3424; see Heiderhoff in Dutta/Jacoby/D. Schwab (eds.), FamFG, 4th ed. 2022, § 3 IntFamRVG note 1; see generally on the German Act of 2021 implementing the Brussels IIter Regulation Klinkhammer, FamRZ 2022, 325; Mansel/Thorn/R. Wagner, IPRax 2022, 97, 111. 13 Estonia: Social Insurance Board (with the exception of the tasks laid down in Arts. 77 (1), 79 (c), (d) and (e) and 81, which are carried out by the Ministry of Justice); Hungary: Ministry of Human Resources (with the exception of cases concerning the return of children removed abroad and the return of children brought to Hungary, which are dealt with by the Ministry of Justice); Lithuania: State Child Rights Protection and Adop-

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the ministry of justice at all, but have appointed other ministries, mostly ministries for family, labour or social affairs or comparable government agencies.14 Only Sweden has designated the Foreign Office (Regeringskansliet/Utrikesdepartementet) as (single) Central Authority.15 In legal practice, all options to headquarter the Central Authority in a Member State have proved to have their merits. Ministries of justice will most easily deal with requests concerning judicial proceedings, while requests bearing relevance to social welfare will probably be handled more aptly by specialized agencies.16 If a Member State fails to designate any Central Authority, the Central Authorities of other Member States will have to use diplomatic channels to get into contact with the respective Member State, or to apply to the Ministry of Justice of the Member State in question.17

4

Member States are entirely free as far as structure or functioning of the Central Authorities is con- 5 cerned,18 e.g. with respect to hierarchy, organization, equipment, staffing, funding and comparable issues.19 The Central Authority system of Chapter V does not interfere with the Member States’ internal organization.20 But Art. 61 of the Brussels IIter Proposal of 2016 intended to oblige the Member States to “ensure that Central Authorities have adaequate financial and human resources to enable them to carry out the obligations assigned to them under this Regulation”,21 probably because resources of Central Authorities22 show remarkable variance across the Member States.23 The daily work of Central Authorities certainly would have found profit in a binding rule on the availability of resources, especially when the functions of Central Authorities under different legal instruments are bundled, i.e. conferred upon a single Central Authority.24 Unfortunately, the draft provision of 2016 did not find its way into the binding parts of the final version of the Brussels IIter Regulation, but only into Recital (72) cl. 3, probably because such an obligation would have put to much of a strain on public sector budgets in the Member States. It has been emphasized that the costs of applying the Regulation incurred by the Member States can mostly be attributed to the establishment and func-

14

15

16 17 18 19 20 21 22 23

24

tion Service under the Ministry of Social Security and Labour (with the exception of communication of information under Art. 77 (1), which is carried out by the Ministry of Justice); Slovakia: Center for the International Legal Protection of Children and Youth (with the exception of the facilitation of communication between courts according to Art. 79 (e), which is carried out by the Ministry of Justice). Czech Republic: Office for International Legal Protection of Children (Umpod); Croatia: Ministry of Labour, Pensions, Family and Social Affairs, Malta: Chief Executive Officer, Social Care Standards Authority; Slovenia: Ministry of Labour, Family, Social Affairs and Equal Opportunities; see also Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271. Sec. 2 Förordning med kompletterande bestämmelser till Bryssel II-förordningen (16 June 2022), SFS 2022:959 (16 June 2022); see Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 192; see also Ökad rättssäkerhet och snabbare verkställighet i internationella familjemål, Ds 2020:18, p. 139 et seq. Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271 et seq. Staudinger/Pirrung (2018) note C 188. Lowe/Everall/Nicholls, note 18.7 (p. 414). European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 96; see also (with regard to the Hague Adoption Convention) Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438. See on behalf of the Hague Adoption Convention, Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438. COM (2016) 411 final, p. 16.; see Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 273; Garber in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 144. See on “resources and powers” of Central Authorities Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 12 et seq.; see also Schlauß/Fucik in Garber/Lugani, notes 16/18, 16/34. Trimmings, Child Abduction within the European Union (2013), p. 144; Honorati, (2017) IFL 97, 113 et seq.; A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 402; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 186; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153 et seq. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 188 et seq.; see also Honorati, (2017) IFL 97, 113 et seq.; A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 405.

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Art. 76 Brussels IIter Designation of Central Authorities tioning of the Central Authorities.25 Bearing this in mind, the European legislator certainly encourages Member States to care for sufficient resources, but does not oblige them to do so.26 As Recital (72) is not binding, it is highly questionable27 whether a Member State failing to ensure that Central Authorities have sufficient resources can be subject to infringement proceedings under Art. 258 of the TFEU. What is more, Member States’ autonomy as to Central Authorities is also underlined by Art. 78 (4), according to which the Member States remain free to let their Central Authorities conclude or fulfil contractual agreements with other Central Authorities or with other authorities of another Member State “allowing direct communications in their mutual relations.”28 6

As national law applicable to parental responsibility cases widely varies across the Member States, the capacity to act and the procedural rights of Central Authorities vary also.29 As a consequence, there are “strong” or “activist”30 Central Authorities acting as counsellors or representatives of a party or even as interested parties themselves, e.g. the Central Authorities of the Czech Republic, France31 and Slovakia,32 as well as “weak” or “slim”33 Central Authorities, e.g. the Central Authorities of Germany34 and Austria, confining themselves to a more formal or administrative role.35 The ECJ held that the Member States “have a margin of discretion as regards the consent procedure” under Art. 56 Abs. 2 Brussels IIbis Regulation.36 This phrase has been understood to apply to any other issue of Central Authority cooperation under the Regulation,37 apart from the obligations explicitly spelled out in Arts. 76 to 84. As a whole, it is for the Member States to describe the scope and the legal nature of measures taken by a Central Authority under national law, and to define appellate remedies to parties aggrieved by measures of the Central Authority. For example, German law authorizes the Central Authority to take the measures it considers appropriate for discharging the obligations imposed upon it (sec. 6 IntFamRVG38). Under German law, proceedings of the Central Authority are considered as measures taken by the judicial authorities (Justizverwaltungsverfahren, sec. 3 (2) IntFamRVG). Pursuant to sec. 8 (1), (2) IntFamRVG, the Higher Regional Court (Oberlandesgericht) with which the Central Authority has its general venue, i.e. the Higher Regional Court of Cologne, shall decide, upon 25 COM (2016) 411 final, p. 8. 26 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 189. Erroneously to the contrary de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153: “obligation set in Recital 72”; Schlauß/Fucik in Garber/Lugani, note 16/18: “Verpflichtung”. 27 As advocated for by de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153 (fn. 56). 28 See also Recital (77) cl. 1. 29 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 277. 30 See Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 277. 31 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 1. 32 See L. A. v. D. G., J. T., 6 children, X, Y, Z, A, B and C, by the Children’s Guardian (2013) EWHC 734 (Fam.) (Theis DBE J.). 33 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 1. 34 See see on Art. 55 (b) Brussels IIbis Regulation Staudinger/Pirrung (2018) note C 194: The German Central Authority will not normally represent a party in civil proceedings. But according to sec. 6 (2) IntFamRVG, the German Central Authority may “(f)or the purpose of implementing the Hague Child Abduction Convention and the European Custody Convention (…) commence court proceedings if if necessary” and “take action in or out of court, either on its own or by power of attorney delegated to persons representing it” (see the translation of sec. 6 provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_intfamrvg.pdf (last visited 30 August 2022)). Compared to other Member States, the powers under sec. 6 IntFamRVG are considered as quite strong, see Schlauß/Fucik in Garber/Lugani, note 16/44. 35 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 277. 36 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 77 note Pirrung 404. 37 Rauscher/Rauscher, Art. 53 Brüssel IIa-VO note 2. 38 IntFamRVG as amended by Art. 1 No 4 Gesetz zur Durchführung der Verordnung (EU) 2019/1111 über die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen sowie zur Änderung sonstiger Vorschriften of 10 August 2021, BGBl. 2021 I 3424.

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request, on the lawfulness of a refusal to execute a request under Chapter V. The Higher Regional Court proceeds in a non-contentious jurisdiction matter (Freiwillige Gerichtsbarkeit, sec. 8 (3) cl. 1 IntFamRVG).39 2. Several Central Authorities Art. 76 permits the creation of several Central Authorities. During the process of drafting the Brus- 7 sels IIbis Regulation, it was proposed to establish only one Central Authority per Member State.40 Art. 55 of the Brussels IIbis Proposal was drafted on the models of Art. 6 cl. 2 of the Hague Child Abduction Convention and of Art. 29 cl. 2 of the Hague Child Protection Convention, granting exceptions only to States with federal structures or with several partial legal systems. Under Art. 55 of the Brussels IIbis Proposal, only States with more than one system of law or States having autonomous territorial organizations were free to appoint territorially competent authorities (in addition to the Central Authority), and to specify the extent of their powers. But the final version of Art. 53 Brussels IIbis Regulation as well as Art. 76 do not contain such a prerequisite, so that Member States are entirely free to choose between a single Central Authority and several Central Authorities,41 without having to fulfil any specific requirements. Anyway, it is strongly recommended to confer the tasks of Central Authorities to a single authority per country, and to appoint the same Central Authority for the Brussels IIter Regulation as already designated for the Hague Conventions of 1980 and of 1996.42 This recommendation does not include the tasks of the Central Authority under the European Maintenance Regulation, though.43 It is true that this accumulation or abundance of duties brings about a large workload for the Central Authorities,44 but it contributes to professionalism of cross-border cooperation also. Anyway, some Member States do not follow this recommmendation.45 Only Member States which have designated more than one Central Authority are required to specify the geographical or functional jurisdiction of each (Art. 76, cl. 1), so that communications can be sent directly to the relevant Central Authority with jurisdiction (Art. 76, cl. 2), and effectiveness of the exchange is secured.46 As of 31 August 2022,47 only six Regulation States (Bulgaria, Estonia, France, Lithuania, Hungary, Slovakia) have designated several Central Authorities under Art. 76.48 Some Member States employ the concept of “functional division into two units”.49 In those Member States, different tasks

39 See in detail MünchKommFamFG/Gottwald, 3rd ed. 2019, Art. 55 Brussels IIbis Regulation notes 5–6; Schlauß/Fucik in Garber/Lugani, note 16/15. 40 COM (2002) 222 final, p.19: “one central authority”; see Althammer/Großerichter, Art. 53 Brussels IIa note 4. 41 Fasching/Konecny/Fucik, Kommentar zu den Zivilprozessgesetzen, V/2, 2nd ed. 2010, Art. 53 EuEheKindVO note 2; Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271; Althammer/Großerichter, Art. 53 Brussels IIa note 4. 42 Recital (72) cl. 2; see also Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 272 f.; Magnus/Mankowski/de Lima Pinheiro, Art. 53 Brussels IIbis Regulation note 6; Rauscher/Rauscher, Art. 53 Brüssel IIa-VO note 1; Gitschthaler/Prisching, Art. 53 Brüssel IIa-VO note 3; Althammer/Großerichter, Art. 53 Brussels IIa note 4. 43 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 188. 44 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 186. 45 See on variations in the Member States A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 401et seq. 46 Althammer/Großerichter, Art. 53 Brussels IIa Regulation note 6. See also (on Art. 4 (2) of the Hague Child Support Convention of 2007) Conclusions and Recommendations of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol (24 May 2022), paras 13–14; available at https://assets.hcch.net/docs/ee328db7-1d7a-4e8a-b765-2e35e937a466. pdf (last visited 31 August 2022); see Fucik, iFamZ 2022, 212, 213. 47 See https://ejustice.europa.eu/37842/EN/brussels_iib_regulation_matrimonial_matters_and_matters_of_paren tal_responsibility_recast_ (last visited 25 August 2022). 48 See with regard to Art. 53 Brussels IIbis Regulation Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271 mentions Lithuania, Slovakia, Hungary and the UK. 49 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 272.

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Art. 77 Brussels IIter General tasks of Central Authorities or functions of the Central Authority have been distributed between two different agencies, e.g. between a Ministry and another authority (Estonia50 and Slovakia51), between two different Minstries (Lithuania52 and Hungary53) or even between different departments of the Ministry of Justice (Bulgaria and France54). For the sake of completeness, it should still be noted that in the UK, four different government agencies were designated under Art. 53 Brussels IIbis Regulation, covering four different jurisdictions or territories (England and Wales, Gibraltar, Northern Ireland and Scotland).55

II. Duty to Forward a Communication 8

Art. 76, cl. 3 requires Central Authorities to forward any communication that lies beyond their jurisdiction. As time is of the essence in cross border-proceedings on parental responsibility, a communication sent to an authority without jurisdiction or a “mistaken choice as to the requested Central Authority”56 can cause considerable delay, at least when it is not forwarded immediately within the requested State. Whereas an applicant or a court or authority in another country will probably be oblivious to the judicial and/or governmental agencies in the requested State,57 the Central Authority knows best which rules on geographical or functional jurisdiction apply. Therefore, a Central Authority without jurisdiction is held responsible for forwarding any such communication to the Central Authority with jurisdiction, and for informing the sender accordingly.

Article 77 General tasks of Central Authorities 1. Central Authorities shall communicate information on national laws, procedures and services available in matters of parental responsibility and take the measures that they consider appropriate for improving the application of this Regulation. 2. Central Authorities shall cooperate and promote cooperation among the competent authorities in their Member States to achieve the purposes of this Regulation. 3. For the purposes of paragraph 1 and 2, the European Judicial Network in civil and commercial matters may be used.

50 Social Insurance Board and Ministry of Justice, see supra fn. 13. 51 Centre for International Legal Protection of Children and Youth andMinistry of Justice, see supra fn. 13. 52 State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour and Ministry of Justice, see supra fn. 13. 53 Ministry of Human Resources and Ministry of Justice; see supra fn. 13 and on Art. 53 Brussels IIbis Regulation Gitschthaler/Prisching, Art. 53 Brüssel IIa-VO note 2. 54 In Bulgaria, two different Directorates of the Ministry of Justice seem to share responsibilities. The International Child Protection and International Adoptions Directorate deals with “matters of parental responsibility”, whereas the International Legal Cooperation and European Affairs Directorate acts as Central Authority with regard to “matrimonial matters”. But from a strictly legal point of view, there is no need to appoint a Central Authority with respect to “matrimonial matters”, as Chapter V does not refer to such matters at all, cf. supra Intro to Arts. 76–84 note 8 (Knöfel). In France, the Civil Affairs and Seals Directorate of the Ministry of Justice was designated for the whole Regulation except for Article 82, whereas the Youth Protection Directorate of the Ministry of Justice deals with cross border placements under Art. 82; see on Art. 53 Brussels IIbis Regulation Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 272. 55 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 271; see also Lowe/Everall/Nicholls, note 18.9–18.15 (p. 415 et seq.); Gitschthaler/Prisching, Art. 53 Brüssel IIa-VO note 2. 56 Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 439. 57 McClean, p. 36.

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Chapter V: Cooperation in Matters of Parental Responsibility I. Cooperation and Information . . . . . . . . . 1. Information on Parental Responsibility Laws . 2. Information on Services Available in Matters of Parental Responsibility . . . . . . . . . . . . 3. Availability of Information provided by the Central Authorities . . . . . . . . . . . . . . . .

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4. Appropriate Measures . . . . . . . . . . . . . . II. Cooperation among Competent Authorities

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III. European Judicial Network . . . . . . . . . . .

7

4

I. Cooperation and Information Like its predecessor, Art. 54 Brussels IIbis Regulation, Art. 77 was modelled on Art. 30 of the Hague Child Protection Convention.1 Central Authorities “have a general mission of cooperation and information”,2 which is common to most instruments on legal assistance in parental responsibility matters (supra Introduction 76–84 note 4 [Knöfel]). Art. 77 further describes this mission of Central Authorities to carry out “general tasks”,3 which are to be distinguished from “specific tasks” imposed upon Central Authorities by Art. 79.4 The term “specific tasks” in Art. 79 means tasks with respect to specific cases.5 Thus, the relationship between Art. 77 and Art. 79 is as follows: Art. 79 outlines the cooperation tasks of a Central Authority occupied with a specific case, request or application relating to parental responsibility,6 Art. 77 sets out the tasks (information on national laws, other appropriate measures) in absence of such a case, request or application.7 However, the provisions on general tasks and on specific tasks of Central Authorities can be considered in their entirety and, if necessary, draw inspiration from one another, as they refer to closely related issues.8

1

1. Information on Parental Responsibility Laws Art. 77 (1) largely corresponds to Art. 54 Brussels IIbis Regulation,9 obliging the Central Authorities to supply one another, but also the general public, with information on “national laws” and “procedures” in the field of parental responsibility.10 Art. 77 (1) also imposes on the Central Authorities a duty to keep published information on parental responsibility up to date.11 The term “national laws” clearly refers to legislation in force, but also to questions of law relating to parental responsibility in the widest sense,12 including relevant case law at least of the highest courts of the Member State in question.13 The term “procedures” does not refer to the current procedural state of a specific case or

1 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 274; Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 192. 2 Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 185. 3 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 4 Althammer/Großerichter, Art. 54 Brussels IIa note 2. 5 Staudinger/Pirrung (2018) note C 191. 6 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 7 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 1; Gitschthaler/Prisching, Art. 54 Brüssel IIa-VO note 1; MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO note 1; see also on Arts. 51, 56 European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 418. 8 See on Arts. 50, 51 European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 416 et seq. 9 Althammer/Großerichter, Art. 54 Brussels IIa note 1–3. 10 See on Art. 7 (2) (e) of the Hague Abduction Convention, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 35. 11 Kruger, NIPR 2017, 462, 476. 12 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 274 et seq. 13 Kruger, NIPR 2017, 462, 476.

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2

Art. 77 Brussels IIter General tasks of Central Authorities application, but to the law of civil procedure applicable in parental responsibility matters.14 The wording of (1) in some languages (German: “Verfahren”; Dutch: “procedures”, Spanish: “procedimientos”) is somewhat misleading,15 but the English language version explicitly mentions “procedures” (instead of “proceedings”), thus making it clear that the duty to provide information refers to procedural law only. 2. Information on Services Available in Matters of Parental Responsibility 3

Unlike Art. 54 Brussels IIbis Regulation,16 Art. 77 (1) also demands the Central Authorities to provide information on “services available in matters of parental responsibility”, thus extending the duty of information to guidance on such services which may be offered by social welfare authorities, such as child welfare agencies or offices for (international) legal protection of children, in the Member States. 3. Availability of Information provided by the Central Authorities

4

Information provided by the Central Authorities under Art. 77 (1) can be accessed on the e-Justice Portal, but also on the websites of some Central Authorities.17 Further, Central Authorities will often answer requests for information on law emanating from authorities other than Central Authorities or even from individuals, e.g. from interested parties,18 or provide so-called covering letters describing the laws relevant to a specific case.19 But Art. 77 does not compel the Central Authorities to do so, as the duties of Central Authorities to be performed on request, i.e. in distinct judicial proceedings, are enumerated in Art. 79 exclusively.20 Anyway, the Central Authorities do not need to offer “a general legislative consultation service.”21 Experience shows, however, that Central Authorities are only rarely, if ever, asked to provide such a service.22 4. Appropriate Measures

5

Art. 77 (1) demands and authorises Central Authorities to take measures considered appropriate for improving the application of the Regulation. This part of Art. 77 (1) has been subject to only a very modest, irrelevant change of wording. It gives the most general description of the Central Authorities’ task to contribute to an efficient application of the Regulation. In this respect, Art. 77 (1) is lex generalis, i.e. serves as a legal basis for distinct measures put into place by a Central Authority which are not mentioned in or suggested by Art. 79.

II. Cooperation among Competent Authorities 6

Art. 77 (2) allows and requires Central Authorities to cooperate with one another, and obliges them to promote cooperation among the competent authorities in their Member States. The provision is new to the Brussels framework. It has obviously been taken from various older conventions and Reg-

14 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 1; Gitschthaler/Prisching, Art. 54 Brüssel IIa-VO note 2; Schlauß/Fucik in Garber/Lugani, note 16/26. 15 Gitschthaler/Prisching, Art. 54 Brüssel IIa-VO note 2. 16 But see for a duty of information on child welfare agencies under Art. 54 Brussel IIbis Regulation Staudinger/Pirrung(2018) note C 190. 17 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 18 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 19 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 35 with an example of a covering letter issued by the Australian Commonwealth Central Authority (Appendix 4.3) (p. 136). 20 Rauscher/Rauscher, Art. 54 Brüssel IIa-VO note 1. 21 Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 591. 22 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 30 KSÜ note 3.

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ulations on legal assistance in the field of parental responsibility or other family law matters. Art. 77 (2) emphasizes the Central Authorities’ right and duty to provide for a better and closer cooperation in matters of parental responsibility.23 The phrase “promote cooperation among the competent authorities in their Member States” is derived directly from Art. 30 (1) of the Hague Child Protection Convention,24 Art. 7 (1) of the Hague Child Abduction Convention and Art. 3 (1) of the European Custody Convention, but has also been present in EU law before, namely in Art. 50 (1) (a) European Maintenance Regulation.25. In the context of the Brussels regime on parental responsibility, the phrase shifts the focus to national authorities, namely to child welfare authorities,26 which are integrated into the cooperation mechanism,27 in order to acknowledge the important role they have to play in the Brussels IIter framework.28 Its “objective is that these authorities should not limit themselves to considering the national aspects of the matters submitted to them, but should also take into consideration the international elements. Such co-operation should lead to the speeding up of procedures”.29 Anyway, the term “promote cooperation” in Art. 77 (2) certainly demands Member States to encourage cross-border administrative coooperation, but does not oblige them to introduce a genuine duty to provide (legal) assistance by other authorities than the Central Authorities.30

III. European Judicial Network The European Judicial Network in Civil and Commercial Matters (EJN-civil) was established by 7 Council Decision No. 2001/470/EC of 28 May 200131 and amended by Decision No. 568/2009/EC of the European Parliament and of the Council of 18 June 2009.32 All Central Authorities designated under the Brussels IIter Regulation are ex officio members and operators of the EJN-civil (Art. 2 (1) (b) of the Decision), thus standing next to the EJN-civil contact points, liaison judges33 and other appropriate authorities (Art. 2 (1) (a), (c), (d), (2) of the Decision). According to Art. 77 (3),34 the Central Authorities may use the EJN-civil to achieve the purposes of (1) and (2).35 For example, the EJN-civil can be used to communicate information on foreign law (Art. 77 (1)),36 although in legal

23 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 275 et seq. 24 See Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 30 KSÜ notes 1–2. 25 See on Art. 50 (1) (a) European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 417 et seq. 26 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459; Antomo in Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 13, 54. 27 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 413 et seq. 28 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 189. 29 See on Art. 3 (1) of the European Custody Convention the Explanatory Report on the European Custody Convention, para 22 (quotation taken from Lowe/Everall/Nicholls, note 10.15 (p. 211. 30 See on Art. 50 (1) (a) European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 417 et seq. 31 OJ 2001 L 174/25. 32 OJ 2009 L 168/35; see Fornasier, ZEuP 2010, 477; González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 357 et seq. 33 See on the role and function of liaison judges in Europe Menne, JZ 2017, 332; Menne, FamRZ 2018, 1644; Menne, ZEuP 2019, 472.; Menne in Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 109; Menne, NJ 2021, 497; Menne, FamRB 2021, 477; Menne, FamRB 2022, 37; Menne, FamRB 2022, 162, 166; see also MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO note 1; Schlauß, ZKJ 2022, 206, 208. 34 Art. 77 (3) replaces Art. 54 cl. 2 Brussels IIbis Regulation. 35 See in detail Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 275; see also on the EJN-civil in the framework of the European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 423 et seq. 36 See generally M. Stürner in FS Rolf Stürner, II (2013), p. 1071, 1093; M. Stürner/Krauß, Ausländisches Recht in deutschen Zivilverfahren, Eine rechtstatsächliche Untersuchung (2018), notes 46–48.

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Art. 77 Brussels IIter General tasks of Central Authorities practice, the EJN-civil seems to have been used only rarely and reluctantly37 to establish the content of foreign law in the course of judicial proceedings.38 In any case, under Art. 77 (3), the use of the EJN-civil is not mandatory, like it possibly was under Art. 54 Brussels IIbis Regulation (“shall be used”39), but merely optional (“may be used”). It has been suggested that Art. 77 should expressly refer to or allow for the use of the International Hague Network of Judges40 also.41 The Hague Network of Judges is indeed mentioned in Recitals (45) and (46),42 referring to return proceedings, and putting the Hague Network next to the EJN-civil.43 However, the International Hague Network of Judges is an informal tool which is known to and used by experienced practitioners anyway, so that formal reference to the Hague Network in the wording of Art. 77 does not seem to be required or even desirable. 8

The EJN Decision demands to establish and update “an information system for the members of the network” (Art. 3 (1) (a) of the Decision), which is considered as a task of the Central Authorities designated under the Regulation.44 In order to accomplish this task, the Central Authorities can avail themselves of the contact points apppointed by the Member States (Art. 5 (1) of the Decision).45 Central Authorities shall meet regularly to discuss and facilitate the application of the Regulation (Art. 84 (1); see infra Art. 84 note 1 [Knöfel]). The Commission will use the EJN-civil to call Central Authorities’ meetings (Art. 84 (2)).46

37 Hüßtege, IPRax 2021, 261, 263 et seq. 38 But see AG München NZFam 2021, 1032 note Mankowski = NJW 2022, 252 note Menne; AG Hamm FamRZ 2022, 223 notes Erb-Klünemann and Menne; see also Vanda Puceviciene v. Lithuanian Judicial Authority et al., (2016) EWHC 1862 (Admin) para 61 (Q. B. D., Lord Thomas of Cwmgiedd CJ); see also McClean in Ruiz Abou-Nigm/Noodt Taquela (eds.), Diversity and Integration in Private International Law (2019), p. 128, 142 (footnote 67), mentioning Asefa Yesuf Import and Export v. A. P. Møller – Mærsk Line, (2016) EWHC 1437 (Admlty); see also Menne, ZEuP 2019, 472, 491 et seq.; Menne in Pfeiffer/Lobach/Rapp (eds.), Europäisches Familien- und Erbrecht (2020), p. 109, 114 et seq.; Menne, NJ 2021, 497, 499. 39 See A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. But see Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 275: “employment (of the EJN) is advocated”. 40 See on the Hague International Network of Judges for International Child Protection/Hague International Network of Liaison Judges Report on Judicial Communications in Relation to International Child Protection, drawn up by Philippe Lortie, First Secretary, Prel. doc. no 8 (October 2006), available at http://www.hcch.net/ upload/wop/abd_pd08e2006.pdf (last visited 19 January 2022); Kessedjian/Garnett/Verhoosel in Report of the 73rd ILA Conference, Rio de Janeiro 17.–21.8.2008 (2008), p. 534, 562 f. (No. 98); Carl/Menne, NJW 2009, 3537 f.; A. Bucher, Rec. des Cours 341 (2009), 27, 482 f.; Duintjer Tebbens, Liber Amicorum Kurt Siehr (2010), p. 635, 641; Menne, JZ 2017, 332, 336; Menne, FamRZ 2017, 1517 f; Menne, FamRZ 2018, 1644; Menne, ZEuP 2019, 472, 484. 41 Honorati, (2017) IFL 97, 113; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 189. 42 See Menne, NJ 2021, 497, 499. 43 According to Recital (45) cl. 4, a court seeking to establish whether adequate protective arrangements have been made should seek the assistance of Central Authorities or network judges, in particular within the EJNcivil and the International Hague Network of Judges. According to Recital (46) cl. 3, a court seised with return proceedings under the Hague Abduction Convention of 1980 should consult with the court or competent authorities of the Member State of the habitual residence of the child, with the assistance of Central Authorities or network judges, in particular within the EJN-civil and the International Hague Network of Judges. 44 Art. 3 (1) of the Decision 2001/470/EC, see Magnus/Mankowski/De Lima Pinheiro, Art. 54 Brussels IIbis Regulation note 2; Althammer/Großerichter, Art. 54 Brussels IIa note 3. 45 Magnus/Mankowski/De Lima Pinheiro, Art. 54 Brussels IIbis Regulation note 2; Althammer/Großerichter, Art. 54 Brussels IIa note 3. 46 See on multilateral and bilateral meetings under the Brussels IIbis Regulation A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 409 et seq.

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Article 78 Requests through Central Authorities 1. Central Authorities shall, upon request from a Central Authority of another Member State, cooperate in individual cases to achieve the purposes of this Regulation. 2. Requests pursuant to this Chapter may be made by a court or a competent authority. Requests pursuant to points (c) and (g) of Article 79 and point (c) of Article 80(1) may also be made by holders of parental responsibility. 3. Except in urgent cases and without prejudice to Article 86, requests pursuant to this Chapter shall be submitted to the Central Authority of the Member State of the requesting court or competent authority or of the applicant’s habitual residence. 4. This Article shall not preclude Central Authorities or competent authorities from entering into or maintaining existing agreements or arrangements with Central Authorities or competent authorities of one or more other Member States allowing direct communications in their mutual relations. 5. This Chapter shall not preclude any holder of parental responsibility from applying directly to the courts of another Member State. 6. Nothing in Articles 79 and 80 shall impose an obligation on a Central Authority to exercise powers that can be exercised only by judicial authorities under the law of the requested Member State. I. General Considerations . . . . . . . . . . . . . II. Circulation of Requests pursuant to Chapter V . . . . . . . . . . . . . . . . . . . . . 1. Central Authority Cooperation in Individual Cases (Art. 78 (1)) . . . . . . . . . . . . . . . . 2. Requests by a Court or a Competent Authority (Art. 78 (2) cl. 1) . . . . . . . . . . . 3. Requests by Private Parties (Art. 78 (2) cl. 2) .

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4. Submission of Requests to the Central Authority (Art. 78 (3)) . . . . . . . . . . . . . . 5. Agreements or Arrangements on Direct Administrative Communication (Art. 78 (4)) . .

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III. Direct Application to the Courts of Another Member State (Art. 78 (5)) . . . . . . . . . . .

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IV. Powers to Be Exercised by Judicial Authorities Only (Art. 78 (6)) . . . . . . . . . . . . . .

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I. General Considerations Art. 78 (1) makes clear that Central Authorities will not only fulfil general tasks (Art. 77), but also cooperate upon request in individual cases in order to achieve the purposes of the Regulation. The provision is new to the Brussels regime,1 but clearly resembles and corresponds to Art. 7 (1) of the Hague Child Abduction Convention2 and to Art. 30 (1) of the Hague Child Protection Convention.3 Art. 78 specifies “who can seise a Central Authority and for what purpose.”4 Art. 78 deals with the initiation and execution of requests pursuant to Chapter V. Generally spoken, any set of rules on the functioning of a Central Authority needs to deal with “the following aspects: (1) who can ask (2) which assistance or information (3) from whom and (4) under which conditions.”5 Whereas Art. 79 answers the questions (2) and (4) by describing the subject-matter and certain other circumstances of Central Authority cooperation, Art. 78 answers the questions (1) and (3) and (partially) (4), i.e. defines which agencies, bodies or persons are entitled to issue a request pursuant to Chapter V and 1 See in detail Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190 et seq. 2 Art. 7 (1) of the Hague Child Abduction Convention reads as follows: “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.” 3 Art. 30 (1) of the Hague Child Protection Convention reads as follows: “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to achieve the purposes of the Convention.” 4 See on the Hague Child Protection Convention of 1996 Lortie, NIPR 2021, 670, 689 (fn. 80). 5 COM (2016) 411 final, p. 16; see also Honorati, (2017) IFL 97, 114; Garber in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 144.

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Art. 78 Brussels IIter Requests through Central Authorities obliged to carry out such a request.6 Further, Art. 78 makes clear that the Brussels IIter Regulation establishes three different roads or channels of cross-border cooperation in parental responsibility cases: cooperation between Central Authorities (Art. 78 (1)) upon a request submitted according to Art. 78 (2) and (3), direct administrative cooperation as provided for in agreements or arrangements between Member States (Art. 78 (4)), and direct judicial cooperation (Art. 86).7

II. Circulation of Requests pursuant to Chapter V 1. Central Authority Cooperation in Individual Cases (Art. 78 (1)) 2

Art. 78 (1) demands Central Authority cooperation “in individual cases” “upon a request from a Central Authority of another Member State”. The rule monopolizes the circulation of requests between the Member States,8 as it defines the circulation of requests via the Central Authority as the main channel of communication under Chapter V.9 After a request has been issued by a court or authority or by an individual in line with Art. 78 (2), the request must be forwarded to the Central Authority indicated in Art. 78 (3)), which will then act as a “transmitting or forwarding agency”10 for (outgoing) requests, and receive (incoming) requests submitted by other Central Authorities in turn. In this regard, Chapter V is not in line with several Hague instruments on cross-border legal assistance, i.e. with the Hague Service Convention11 (Arts. 2 (1), 3 (1)) and the Hague Evidence Convention (Arts. 1 (1), 2 (1)), under which the requesting court will submit the request to a (foreign) Central Authority directly. Thus, Art. 78 (3) establishes “CA to CA”12 (Central Authority to Central Authority) communication and strengthens the position of Central Authorities considerably.13 2. Requests by a Court or a Competent Authority (Art. 78 (2) cl. 1)

3

Under the Brussels IIbis Regulation, it was unclear whether “courts and child welfare authorities can request the assistance of Central Authorities.”14 Art. 78 (2) cl. 1 clarifies this aspect,15 by providing that requests under Chapter V may be made by “a court or a competent authority”. The court or authority is entitled to issue all “requests pursuant to this Chapter”, i.e. requests for the performance of specific tasks (Art. 79), requests for the collection and exchange of information (Art. 80), requests for assistance in the implementation of decisions in another Member State (Art. 81) and requests for consent to the placement of a child in another Member State (Art. 82). Guidance to the meaning of “court” is given in Art. 2 (1) (1), defining a court as “any authority in any Member State with jurisdiction in the matters falling within the scope of this Regulation.” In the aquis communautaire, the interpretation of provisions of law and the assessment of facts and evidence “form part of the very essence of judicial activity”.16 Thus a “court” within the meaning of Art. 78 (2) cl. 1 is any (judicial) body charged with those tasks or at least with one of them in a Member State, whereas a “competent

6 Lortie, NIPR 2021, 670, 689 (fn. 80). 7 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 352. 8 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190; see also Schlauß/Fucik in Garber/Lugani, notes 16/ 46, 16/120 and Schlauß, ZKJ 2022, 206, 209, pointing out that the Central Authorities take over functions of the International Social Service. 9 Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Durchführung der Verordnung (EU) 2019/ 1111 über die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen sowie zur Änderung sonstiger Vorschriften, BT-Drucks 19/28681, p. 25 (19.4.2021). 10 McClean, p. 37. 11 McClean, p. 37. 12 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190. 13 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190; Schlauß/Fucik in Garber/Lugani, notes 16/30, 16/31. 14 COM (2016) 411 final, p. 16; see Gitschthaler/Prisching, Art. 55 Brüssel IIa-VO note 2. 15 COM (2016) 411 final, p. 16. 16 Traghetti del Mediterraneo SpA, in liquidation v. Repubblica italiana (Case C-173/03), EuZW 2006, 561 paras 34, 38 note Seegers = JZ 2006, 1173 note Haratsch.

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authority” is any office or agency which, according to its own law, has jurisdiction to entertain proceedings relating to parental responsibility in a Member State. 3. Requests by Private Parties (Art. 78 (2) cl. 2) Legal instruments on international judicial assistance normally exclude private parties from initiating 4 a request for assistance,17 as the individual is not a subject of international law,18 and thus not entitled to demand actions of foreign States.19 Acceptance of this premise is shown in Art. 78 (2) cl. 2, limiting the rights of private parties to originate a request to a Central Authority to certain cases which bear direct relevance to the rights of holders of parental responsibility.20 Private applicants may initiate requests pursuant to Art. 79 (c) (requests for information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in the territory of the requested Central Authority), Art. 79 (g) (requests to facilitate agreement between holders of parental responsibility through means of alternative dispute resolution) and Art. 80 (1) (c) (application for measures for the protection of the person or property of the child). Such direct applications to Central Authorities by private parties put the Central Authorities in front of new challenges, as the traditional paradigms of interadminstrative cooperation do not apply here. Central Authorities must be prepared to correspond directly with legal laymen, and to interact with “families in need.”21 4. Submission of Requests to the Central Authority (Art. 78 (3)) Art. 78 (3) clarifies which Central Authority can be approached by applicants, and thus deals with an 5 issue that was left open by the Hague Child Protection Convention or dealt with pragmatically by Central Authorities when applying the Hague Convention.22 According to Art. 78 (3), requests shall be submitted either to the “Central Authority of the Member State of the requesting court” or to the Central Authority of the Member State of the “competent authority” or to the Central Authority “of the applicant’s habitual residence”. The choice between them seems to be for the applicant or depends on the circumstances of the case. Art. 78 (3) must be observed regularly, but is not mandatory,23 as the provision does not apply in urgent cases, and the obligation to approach Central Authorities is meant to be limited to initial requests only, whereas any subsequent requests may also be sent directly to the court or competent authority (Recital (76), cl. 2). According to Recital (76) cl. 1, an example of an urgent case is “a direct request to the competent authority of another Member State to consider the need to take measures for the protection of the child where the child is presumed to be at imminent risk.” These exceptions to Art. 78 (3) are subject to criticism, as they seem to undermine the Central Authorities’ monopoly of communication (supra Art. 78 note 2 [Knöfel]), and it remains unclear whether the channeling of requests through the Central Authorities on the one hand or other (direct) ways of communication on the other hand are indeed preferred by the European legislator.24 It is submitted that Art. 78 (3) strengthens the Central Authorities and their interplay, but shall not impede other (direct) channels of communication that have already been established under the Brussels IIbis Regulation.25 However, Art. 78 (3) does not preclude courts from cooperating and communicating directly with each other as provided by Art. 86 (1), (2) (d). Art. 86 promotes and authorizes

17 McClean, p. 37. 18 The Attorney General of the Government of Israel v. Eichmann, (1962) 16 P. D. 2033 (B. M. E. 29.5.1962) = 36 I. L. R. 277, 286 (1968); ~, (1965) 45 P. M. 3 (B. M. M. Jerusalem 11.12.1961) = 56 Am. J. Int’l L. 805, 835–838 (1962). 19 McClean, p. 8. 20 Lortie, NIPR 2021, 670, 689 (fn. 80); González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 354. 21 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 355. 22 Lortie, NIPR 2021, 670, 689 (fn. 80). 23 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 354; Schlauß/Fucik in Garber/Lugani, notes 16/32, 16/33. 24 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190. 25 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190.

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Art. 78 Brussels IIter Requests through Central Authorities direct judicial cooperation, introducing a new paradigm of a dialogue of judges,26 comparable to court-to-court communication under Arts. 42, 57 of the European Insolvency Regulation.27 The newly established right and duty of judges to make use of direct judicial communication in parental responsibility cases28 is indeed an innovation of the Recast,29 and there is nothing in Chapter V that impedes this new “model of cooperative justice”.30 5. Agreements or Arrangements on Direct Administrative Communication (Art. 78 (4)) 6

Administrative bodies dealing with parental responsibility cases, i.e. Central Authoritites or competent authorities, remain free to formalise their cooperative relationships, as instruments such as memoranda of understanding and comparable arrangements have proved useful in the cross-border dimension.31 Such authorities may maintain existing or conclude new agreements or arrangements on direct cross-border communications. Acceptance of this is shown by Art. 78 (4), together with Recital (77). Art. 78 (4) refers to administrative cooperation only,32 which is to be distinguished clearly from direct court-to-court cooperation (Art. 86).33 Such agreements or arrangements on direct communication in the mutual relations of Member States may be bilateral as well as multilateral. Recital (77) cl. 2 asks competent authorities “to inform their Central Authorities about such agreements or arrangements.”

III. Direct Application to the Courts of Another Member State (Art. 78 (5)) 7

According to Art. 78 (5), nothing in Chapter V precludes a holder of parental responsibility from applying directly to the courts of another Member State. This appears to be quite obvious, as Chapter V does not relate to rights and possibilities of private parties to approach the courts, but leaves those issues to the national law of procedure and all questions of international jurisdiction to Chapter II. Art. 78 (5) can be traced back to the ECJ’s decision of 2018 in M. S. v. P. S.,34 in which the ECJ stated that applications of individuals under the European Maintenance Regulation can be made directly to the courts of a Member State, whereas national law may not require to submit such an application through the Central Authority of the Member State exclusively.35 From the point of view of private parties, any service or assistance provided by a Central Authority is a benefit, but never a duty or a

26 On the paradigm of a dialogue of judges see generally Maitrepierre, Trav. Com. fr. dr. int. pr. 2014–2016, 47 et seq.; see also Canivet, RSC 5 (2005), 799 et seq.; Canivet, RTD com. 2005, 33 et seq.; Canivet, 80 Tul. L. Rev. 221 ff. (2005) = 80 Tul. L. Rev. 1377 ff. (2006); Allard/Garapon, Les juges dans la mondialisation (2005), passim; Allard in Le dialogue des juges, Actes du colloque organisé à Bruxelles le 28 avril 2006 (2007), 82 et seq. 27 Mansel/Thorn/R. Wagner, IPRax 2020, 97, 104; González Beilfuss, (2020/2021) 22 Yb. P.I.L. 95, 115 et seq.; González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 353. 28 A., (Case C-523/07) (2009) ECR I-2805 para 65: “the national court (…) must inform, directly or through the central authority designated under Article 53 of the Regulation, the court of another Member State having jurisdiction”, compare now Art. 15 (2) of the Brussels IIter Regulation. 29 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459; González Beilfuss, (2020/2021) 22 Yb. P.I.L. 95, 114; see also González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 351 et seq. 30 González Beilfuss, (2020/2021) 22 Yb. P.I.L. 95, 116; González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 353. 31 See in the context of child abduction Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 77.; see also Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 195, referring to Art. 39 of the Hague Child Protection Convention. But cf. sceptically Schlauß/Fucik in Garber/Lugani, note 16/35, considering Art. 78 (4) to be of minor practical importance. 32 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 352. 33 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 352. 34 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 191. 35 M.S. v. P.S., (Case C-283/16), IPRax 2018, 515, 517 paras 43–44 note Knöfel 487; see also Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 419.

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burden.36 This is why Art. 78 (5) declares that Chapter V does not interfere with rights of access to (foreign) courts.

IV. Powers to Be Exercised by Judicial Authorities Only (Art. 78 (6)) Art. 78 (6) is the equivalent of Art. 51 (4) European Maintenance Regulation. The provision pays at- 8 tention to the large variance of national laws govering measures to be taken in matters of parental responsibility. Art. 78 (6) makes clear that the duties of the Central Authority to perform specific tasks upon request (Art. 79) and to collect and exchange information (Art. 80) must not interfere with the law of the requested Member State on the scope of administrative powers.37 Measures to be taken under Arts. 79, 80 may be reserved to judicial authorities by national law, but fall outwith the scope of powers granted to administrative bodies in terms of the law of the requested Member State.38 In this case, the Central Authority is not obliged to comply with Arts. 79 and 80, i.e. the Authority is not expected to “shoulder the undue burden of judicial functions”.39 But there is nothing in Art. 78 (6) demanding Central Authorities to refrain from exercising judicial functions, if national law so provides.40

Article 79 Specific tasks of requested Central Authorities Requested Central Authorities shall, acting directly or through courts, competent authorities or other bodies, take all appropriate steps to: (a) provide assistance, in accordance with national law and procedure, in discovering the whereabouts of a child where it appears that the child may be present within the territory of the requested Member State and that information is necessary for carrying out an application or request under this Regulation; (b) collect and exchange information relevant in procedures in matters of parental responsibility under Article 80; (c) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in the territory of the requested Central Authority, in particular concerning rights of access and the return of the child, including, where necessary, information about how to obtain legal aid; (d) facilitate communication between courts, competent authorities and other bodies involved, in particular for the application of Article 81; (e) facilitate communication between courts, where necessary, in particular for the application of Articles 12, 13, 15 and 20; (f) provide such information and assistance as is needed by courts and competent authorities to apply Article 82; and (g) facilitate agreement between holders of parental responsibility through mediation or other means of alternative dispute resolution, and facilitate cross-border cooperation to this end.

36 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 191; Schlauß/Fucik in Garber/Lugani, notes 16/30, 16/ 36. 37 See on Art. 51 (4) European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 417. 38 See on the Hague Abduction Convention Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438. 39 See on Art. 51 (4) European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 417. 40 See on Art. 51 (4) European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 417.

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Art. 79 Brussels IIter Specific tasks of requested Central Authorities I. General Considerations . . . . . . . . . . . . . 1 II. Specific Tasks . . . . . . . . . . . . . . . . . . . 4 1. Assistance in Discovering the Whereabouts of a Child (Art. 79 (a)) . . . . . . . . . . . . . . . 5 2. Collection and Exchange of Information (Art. 79 (b)) . . . . . . . . . . . . . . . . . . . . 9 3. Information of and Assistance to Holders of Parental Responsibility (Art. 79 (c)) . . . . . . 10

4. Communication between Courts (Art. 79 (d), (e)) . . . . . . . . . . . . . . . . . . . . . . . . . 11 5. Information of and Assistance to Courts Applying Art. 82 (Art. 79 (f)) . . . . . . . . . . 13 6. Alternative Dispute Resolution (ADR) (Art. 79 (g)) . . . . . . . . . . . . . . . . . . . . 14

I. General Considerations 1

Art. 79 corresponds to and complements Art. 55 Brussels IIbis Regulation,1 which the ECJ considered “essential, if the purposes of the Regulation are to be achieved”.2 Art. 79 lists certain tasks that the Central Authority must fulfil on request,3 as opposed to general tasks incumbent on Central Authorities in absence of a request (Art. 77) (supra Art. 77 note 1 [Knöfel]). The tasks and duties of the Central Authorities listed in Art. 79 are neither limited to legal proceedings in individual cases nor confined to situations involving children in public care,4 but must be carried out on request. The predecessor to Art. 79, Art. 55 Brussels IIbis Regulation, used to pose quite some problems. The construction of the provision was considered unclear.5 Therefore, the European legislator re-drafted Art. 55 Brussels IIbis Regulation, adding two new tasks (literas (a), (d)) to the catalogue of specific tasks. Art. 79 occupies a middle position between Art. 55 Brussels IIbis Regulation, which defines the specific tasks of Central Authorities only vaguely, and Arts. 29–39 of the Hague Child Protection Convention, which describe such tasks in an even more detailed manner.6

2

The opening words of Art. 79 demand the Central Authorities to act “directly or through courts, competent authorities or other bodies”. There is no qualifying language of any kind with respect to “other bodies”,7 so that only individuals or rather private parties are excluded from the meaning, but any competent court, authority, agency or public service involved into matters of parental responsibility is certainly included. As a whole, the Central Authority is free to act on its own or to employ intermediaries as it deems fit.8 The idea behind this is to ensure that the system of central Authorities does not saddle the Member States with an “undue administrative burden”.9 Therefore, the Regulation does not describe, let alone define the capacity to act or even the structure of the Central Authorities (supra Art. 76 note 5 [Knöfel]). As a consequence, such issues are invariably governed by the law of the respective Member State alone.10 Art. 79 respects the oddities of the law of any Member State by allowing the Central Authority to delegate any specific task to another entity, especially when the Central Authority cannot or may not carry out the task itself under national law, as the function may lie outside of the scope of its powers. For example, assistance in discovering the whereabouts of a child under Art. 79 (a) may involve a police operation11 or a request to a branch of the Interna-

1 Frohn/Sumner, NIPR 2020, 391, 410. 2 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 83 note Pirrung 404. 3 MünchKommBGB/Heiderhoff, Art. 55 Brüssel IIa-VO note 1. 4 Lowe/Everall/Nicholls, note 14.5 (p. 295). 5 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11; see also Trimmings, Child Abduction within the European Union (2013), p. 140–143; Honorati, (2017) IFL 97, 114. 6 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 191. 7 Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 591. 8 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 354; see with regard to the Hague Child Protection Convention Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 31 KSÜ note 2. 9 See on the European Maintenance Regulation Grubisˇic´ in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 415, 416 (fn. 4). 10 Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438. 11 See on the Hague Abduction Convention Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438.

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tional Social Service,12 and Art. 79 leaves it up to the Central Authority to avail itself of such authorities under national law if fulfilling the task requires to do so. But Art. 79 does not allow to shift responsibilities as imposed by the Regulation to another body altogether. In any case, the Central Authority “remains the repository of those duties which the (Regulation) imposes upon it.”13 Art. 55 Brussels IIbis Regulation obliges Central Authorities to act, in any case, “in accordance with the law of that Member State in matters of personal data protection” when performing specific tasks.14 This reference to domestic legislation has given rise to very difficult issues. If the data protection law of a Member State restricts access to information about a person, “the effectiveness of the whole process under Art. 55 may be jeopardised.”15 But unlike Art. 55 Brussels IIbis Regulation, Art. 79 does not refer to national data protection law any more. This is because today the General Data Protection Regulation of 2018 (GDPR) has precedence over national law in this area.16 Consequentially, Recital (87) makes clear that the GDPR applies to the processing of personal data by the Member States carried out in application of the Regulation.

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II. Specific Tasks Art. 79 enumerates activities which Central Authorities must “take all approriate steps” to achieve. It 4 follows from this wording that Central Authorities are not generally obliged to effectuate or to secure any results or goals of the Brussels IIter Regulation, as long as all appropriate measures as described in Art. 79 have been taken.17 1. Assistance in Discovering the Whereabouts of a Child (Art. 79 (a)) The first task incumbent on the Central Authority in the framework of Art. 79 is to provide assistance 5 in discovering a child’s whereabouts. Art. 79 (a) is new to the Brussels framework, but some Member States seem to have provided such assistance under Art. 55 (a) Brussels IIbis Regulation already.18 The clause was added to the task list because the Brussels IIter Regulation contains an entirely new Chapter on international child abduction (Chapter III – Arts. 22–29), which deals with the interplay of the Regulation with the 1980 Hague Convention.19 Art. 79 (a) was designed “to facilitate the localisation of abducted children, runaways or, more generally, children in difficulty”.20 The provision was clearly drafted on the models of Art. 7 (2) (a) of the Hague Child Abduction Convention, which assigns to the Central Authority the task “ to discover the whereabouts of a child who has been wrongfully removed or retained”, and of Art. 31 (c) of the Hague Child Protection Convention,21 which demands to provide “assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State.” Art. 79 (a) also corresponds to the comparable functions of Central Authorities “to help locate the debtor or the creditor” under Art. 6 (2) of the Hague Child Support Convention of 2007 and under Art. 51 (2) 12 Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194. 13 Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438. 14 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 1. 15 European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 97. 16 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1. 17 See on Art. 7 of the Hague Abduction Convention Kucinski/Hale/Coffee, Family Law Across Borders (2021), p. 498. 18 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 191. 19 Recital (73) cl. 2; see U.-P. Gruber/L. Möller, IPRax 2020, 393, 398 et seq.; Deuschl, NZFam 2021, 149, 150 et seq. 20 On Art. 31 (c) of the Hague Child Protection Convention see Explanatory Report, Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 187. 21 See Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 191.

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Art. 79 Brussels IIter Specific tasks of requested Central Authorities (b) European Maintenance Regulation.22 Art. 79 (a) requires the Central Authority to assist in locating the child, “where this is necessary for carrying out a request under this Regulation.”23 The wording of Art. 79 (a) expressly refers to”national law and procedure”, making it clear that the Regulation does not interfere with Members States’ law, but leaves the capacity of the Central Authority to locate a child entirely to the law of the Member State in question. 6

The European Evidence Regulation24 does not cover legal assistance in discovering a child’s whereabouts, as seeking the address or the domicile of a person does not constitute taking evidence, under the scope of that Regulation.25

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In legal practice, the Central Authorities can take a couple of measures which have proved to be useful for tracing a child, and turn to any body, organisation, agency or authority experienced in or occupied with tracking down missing persons.26 Most often, the Central Authority will attempt to collect information leading to the discovery of a child’s whereabouts by issuing requests for information, e.g. to solicitors, airlines, telephone companies and internet providers,27 provided that domestic legislation allows for such requests. In accordance with the law of the Member State in question, the Central Authority may also demand assistance of the police or of other government departments or bodies.28 The Hague Conference Guide to Central Authorities’ Practice of 2003 recommends the following “Measures taken by Central Authorities to Help Locate Children”, which have proved to be useful in the framework of the Hague Abduction Convention,29 but can be taken under the Brussels IIter Regulation also, if national law so provides: “1. Checking the Population Register (…), 2. Enlist the aid of local police (if an address is known) (…), 3. Enlist the aid of the national police, as they often have a specialist unit for missing children matters or family matters, 4. (…) apply to court to subpoena a person believed to have information about the location of a child, 5. (not applicable), 6. Police in some countries can make discreet inquiries regarding a child, 7. (not applicable), (…) pay private investigators to assist in locating missing children.”30

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From a German point of view, a Central Authority requested to provide assistance under Art. 79 (a) can rely on sec. 7 IntFamRVG, setting forth the rights of the Central Authority when seeking the address or the residence of a child.31

22 Frohn/Sumner, NIPR 2020, 391, 410. 23 Recital (78) cl. 2; see also A. Schulz, FamRZ 2020, 1141, 1144 et seq. 24 Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast), OJ 2020 L 405/1 (version applicable from 1 July 2022); see formerly 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 2001 L 174/1. 25 Toplofikatsia Sofia EAD et. al (Case C-208/20, C-256/20), RIW 2021, 729, 731 para 25; Knöfel, RIW 2021, 473, 477; see Mansel/Thorn/R. Wagner, IPRax 2022, 97, 114. 26 Lowe/Everall/Nicholls, note 18.28 (p. 421). For example, under Swedish law, the Swedish Foreign Office, acting as Central Authority under the Brussels IIter Regulation, can request the Revenue Office (Skatteverket), the Swedish Police (Polismyndigheten) and the Office for Migration (Migrationsverket) to assist in tracking down a child, see Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 196. 27 See on “Tracing an Abducted Child” Lowe/Everall/Nicholls, note 16.1 et seq. (p. 350 et seq.), especially notes 16.19–16.23 (p. 355–357). 28 See on the Hague Abduction Convention Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 438; see on the Hague Child Protection Convention Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 31 KSÜ note 7. 29 Schuz, The Hague Child Abduction Convention (2013), p. 43 et seq.; Lowe/Everall/Nicholls, note 18.28 (p. 421 et seq.). 30 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 144 (Appendix 5.1). 31 See Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 31 KSÜ note 7; Heiderhoff in Dutta/Jacoby/D. Schwab (eds.), FamFG, 4th ed. 2022, § 7 IntFamRVG note 1; Schlauß, ZKJ 2022, 206, 208 (fn. 27); Schlauß/Fucik in Garber/ Lugani, notes 16/43, 16/58.

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Art. 79 Brussels IIter

2. Collection and Exchange of Information (Art. 79 (b)) According to Art. 79 (b), another task to be fulfilled by the Central Authority is to collect and exchange information relating to parental responsibility,32 i. e. in procedures under Art. 80. Art. 79 (b) is the successor to Art. 55 (a) Brussels IIbis Regulation. Under the latter provision, collecting and exchanging information has proved to be the most important and most frequent task of the Central Authorities.33 Requests under Art. 55 (a) have increased steadily.34 But in legal practice, applications for information under Art. 55 (a) Brussels IIbis Regulation were not always handled quickly, and translation of information exchanged was often insufficient.35 Art. 55 (a) Brussels IIa Regulation ensures “that the courts of the requesting Member State have precise, clear information”,36 and so does Art. 76 (b). The Recast replaces Art. 55 (a) Brussels IIa Regulation by two separate provisions, Arts. 79 (a) and 80. Art. 79 (a) states the duty of the Central Authority to provide for information exchange and qualifies this duty as a specific task, whereas Art. 80 (1) (a) (i)–(iii) describes the subjectmatters and the circumstances of the exchange, especially the procedure leading to obtaining a report on the socio-economic situation of a child (infra Art. 80 notes 5–6 [Knöfel]). Art. 79 (b) applies to civil proceedings determining the merits of rights of parental responsibility or of rights of access, or concerning the removal or retention of a child,37 and often requires the Central Authority to obtain such a report.38

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3. Information of and Assistance to Holders of Parental Responsibility (Art. 79 (c)) Art. 79 (c) is the equivalent of Art. 55 (b) Brussels IIbis Regulation, requiring Central Authorities to provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in their territories. The Central Authority must support interested parties in applying Chapter IV (Arts. 30–57) on the recognition and enforcement of decisions given in another Member State.39 In legal practice, required assistance to holders of parental responsibility may comprise a broad range of measures to be taken, e.g. making contact with competent legal counsel.40 The Central Authority must also provide guidance to individuals about the possibilities to benefit from legal aid (Art. 74). As Art. 79 (c) demands “information about how to obtain legal aid” only, it seems to be slightly narrower41 than its sibling in Art. 7 (2) (g) of the Hague Abduction Convention, asking Central Authorities “to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers”.42 When seeking Central Authorities’ assistance under

32 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. 33 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 279; see also Fucik, (2016) IFL 169, 173 et seq.; A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403; MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO notes 3–4. 34 See Lowe/Everall/Nicholls, note 14.5 (p. 295), pointing to the Judicial Office Statistics for England and Wales. 35 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. 36 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 83 note Pirrung 404. 37 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 279. 38 Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 279. 39 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403; see in detail Schlauß/Fucik in Garber/Lugani, note 16/82 et seq. 40 Staudinger/Pirrung (2018) note C 194. 41 But see Amendment 55 of the European Parliament Legislative Resolution of 18 January 2018 (P8_TA(2018)0017), which intended to draft the provision as follows: “inform the holders of parental responsibility about legal aid and assistance, such as assistance provided by specialised bilingual lawyers, in order to prevent holders of parental responsibility from giving their consent without having understood the scope of that consent.” 42 Schuz, The Hague Child Abduction Convention, A Critical Analysis (2013), p. 40.

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10

Art. 79 Brussels IIter Specific tasks of requested Central Authorities Art. 79 (c), holders of parental responsibilty are not required to observe any formalities, as there is no equivalent of Art. 57 (1) Brussels IIbis Regulation any more, according to which a request for assistance has to fulfil certain requirements,43 e.g. to “include all available information of relevance to (…) enforcement” and to convey relevant certificates. 4. Communication between Courts (Art. 79 (d), (e)) 11

Art. 79 (d) and Art. 79 (e)) oblige Central Authorities to facilitate communication between courts. Art. 79 (e) corresponds roughly to Art. 55 (c) Brussels IIbis Regulation, asking Central Authorities to foster communication between courts in cases where a transfer of jurisdiction to a court of another Member State (Arts. 12, 13) is at stake. Issues and questions of forum melior conveniens are intricate and complicated.44 Such cases will benefit a lot from direct and intense communication between the courts involved. This is why the Central Authority is required explicitly to support and intensify such communication.45 Unlike its predecessor under the Brussels IIbis regime, Art. 79 (e) extends the specific task of the Central Authority to facilitate communication between courts to urgent cases involving provisional, including protective, measures (Art. 15)46 and to situations posing questions of lis pendens (Art. 20).47 This change of wording can probably be traced back to Purrucker II, where the ECJ acknowledged the role of the Central Authority to serve as a point of contact for a court seeking information as to whether or not an objection of lis pendens may be justified.48 The Central Authority’s attention will be drawn to provisional or protective measures in urgent cases “in particular where they are related to international child abduction and aimed at protecting the child from the grave risk referred to in point (b) of Art. 13(1) of the 1980 Hague Convention”.49

12

Art. 79 (d) is new to the Brussels framework.50 The provision demands the Central Authority to facilitate communication between courts to situations arising under the newly-fashioned Art. 81, i.e. after a request to assist in the implementation of decisions in matters of parental responsibility in another Member State has been issued. In all situations described in Arts. 79 (d) and (e), the courts of the Member States are expected to communicate directly with one another, so that the role of the Central Authority as a facilitator will be appreciated, especially by courts of Continental European countries which are probably not yet familiar with addressing a foreign court straightforwardly. 5. Information of and Assistance to Courts Applying Art. 82 (Art. 79 (f))

13

Under Art. 79 (f), the successor to Art. 55 (d) Brussels IIbis Regulation, Central Authorities are required to provide such information and assistance as is needed by courts to apply Art. 82,51 i.e. as is necessary to administer requests for consent in the placement of the child in another Member State. As the Central Authority again acts as a kind of relay station, the provision shares the rationale of Art. 79 (d) and (e) (supra Art. 79 note 11 [Knöfel]). A proposal to add a new phrase to Art. 55

43 Staudinger/Pirrung (2018) note C194, C 201. 44 See only EP v. FO, (Case C-530/18), IPRax 2020, 556 note Heiderhoff 521 = Rev. crit. dr. int. pr. 109 (2020), 120 note Chalas. 45 Staudinger/Pirrung (2018) note C 195. But there is nothing in Art. 79 (d) or (e) that reserves the right to facilitate communication between courts to the Central Authorities, so that other authorities, e.g. the EJN-civil contact points or liaison judges, can act accordingly, see Schlauß/Fucik in Garber/Lugani, note 16/53. 46 Recital (79); see Frohn/Sumner, NIPR 2020, 391, 411 (fn. 74); Schlauß/Fucik in Garber/Lugani, notes 16/54, 16/61. 47 A. Schulz, FamRZ 2020, 1141, 1149. 48 Bianca Purrucker v. Guillermo Vallés Pérez, (Case C-296/10), NJW 2011, 363, 365 para 81 – Purrucker II; see Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 280; Staudinger/Pirrung (2018), note C 195. 49 Recital (79) cl. 1. 50 Frohn/Sumner, NIPR 2020, 391, 410 et seq. 51 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 16; A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403.

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Art. 79 Brussels IIter

(d) Brussels IIbis Regulation by obliging the Central Authorities to “provide the necessary assistance in the periodical control of long-term cross-border placements”52 did not succeed. 6. Alternative Dispute Resolution (ADR) (Art. 79 (g)) Today, mediation is well-established as an alternative tool for the resolution of disputes. As with other contemporary legal instruments on child protection,53 the use of ADR turns out to be an appropriate means to efficiently resolve cases under the Brussels IIter Regulation. The Stockholm Programme of 2010 expressly demanded that the “possibility to use family mediation at international level should be explored, while taking account of good practices in the Member States”.54 The Report on the Application of the Brussels IIbis Regulation of 2014 repeated this demand in the context of the review of the provisions on Central Authorities.55 What is more, a Working Group of the EJN-civil56 was given the task of proposing “efficient means to improve the use of family mediation in cases of international parental child abduction”.57 The European Commission Study on the Application of the Brussels IIbis Regulation of 2015 stated that “the use of mediation (was) currently not promoted to a sufficient extent.”58 Therefore, the Recast makes a broad-scale effort to encourage mediation.59

14

Art. 79 (g) corresponds to Art. 55 (e) Brussels IIbis Regulation,60 to Art. 7 (2) (c) of the Hague Ab- 15 duction Convention61 and to Art. 31 (b) of the Hague Child Protection Convention.62 Art. 79 (g) requires Central Authorities to “facilitate mediation”63 or any other “amicable resolution of family disputes”64, i.e. to foster cross-border cooperation in the field of ADR.65 The task incumbent on the Central Authority under Art. 79 (g) includes all measures that can be thought of to promote mediation. The Central Authority shall point out to the parties that mediation may be of use66 and supply relevant information,67 e.g. on the functioning of mediation, on the availability of skilled mediators, especially of mediators proficient in particular languages, on the existence of mediation networks, on the law of the Member States implementing the European Mediation Directive68 and on the possibili-

52 Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 61, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/IPOL_ STU(2016)556945_EN.pdf (last visited 4 February 2022). 53 See Vigers, Mediating International Child Abduction Cases, The Hague Convention (2011); Kruger, International Child Abduction (2011), p. 160; Carl/Erb-Klünemann, ZKM 2011, 116. 54 The Stockholm Programme – An open and secure Europe serving and protecting citizens, OJ 2010 C 115/1, 9 – no 2.3.2 (Rights of the child). 55 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. 56 See Council document 16121/10, JUSTCIV 194, of 12 November 2010, Conclusions of the ministerial seminar organised by the Belgian Presidency concerning international family mediation in cases of international child abduction, available at http://register.consilium.europa.eu (last visited 28 September 2021). 57 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. 58 European Commission, Study on the assessment of Regulation (EC) no 2201/2003 and the policy options for its amendments, Final Report (2015), p. 93. 59 Kruger, NIPR 2017, 462, 474 et seq. 60 Carpaneto in Queirolo/Heiderhoff (eds.), Party Autonomy in European Private (And) International Law, I (2015), p. 247, 278. 61 Erb-Klünemann in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Neue Impulse im europäischen Familienkollisionsrecht (2021), p. 25, 27. 62 Staudinger/Pirrung (2018) note D 155; see Report of the Special Commission by Paul Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 148, 187. 63 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 11. 64 Recital (74). 65 Magnus/Mankowski/De Lima Pinheiro, Art. 55 Brussels IIbis Regulation note 8 et seq.; A. Schulz in Viarengo/ Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 66 Erb-Klünemann in Budzikiewicz/Heiderhoff/Klinkhammer/Niethammer-Jürgens (eds.), Neue Impulse im europäischen Familienkollisionsrecht (2021), p. 25, 27. 67 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 31 KSÜ note 5. 68 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, OJ 2008 L 136/3.

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Art. 79 Brussels IIter Specific tasks of requested Central Authorities ties of having mediated agreements legally recognized.69 The Central Authority may also offer financial aid to parties desiring to settle disputes amicably.70 However, the Central Authority is not required to act as a mediator itself, or to employ its own staff as a mediator,71 whereas the Central Authority is of course free to do so.72 The Central Authority may consider involving the courts to seek an amicable dispute settlement,73 or cooperating with non-profit service providers in the field of cross-border family mediation, such as MiKK e.V. (Internationales Mediationszentrum für Familienkonflikte und Kindesentführung), Berlin (Germany)74 or with officials or agencies75 such as the European Parliament Coordinator on Children’s Rights76 or the Cross-Border Family Mediators’ Network.77 In any case, the range of tasks imposed upon Central Authorities is quite large. This is why Art. 55 (g) Brussels IIbis Regulation has been considered to ask too much of the Central Authorities, as the authorities often seem to lack the staff and/or other resources needed to promote mediation.78 Thus, the provision has been said to be fulfilled already if the Central Authority undertakes any steps at all to foster mediation,79 or even if the applicable law of procedure, in its entirety, allows for mediation.80 But today, promoting mediation seems so desirable that the Central Authority will have to take active steps to discharge the duties stated in Art. 79 (g).81 In any case, promoting ADR must not delay the proceedings.82 What is more, the Brussels IIter Regulation considers mediation not to be appropriate in cases of domestic violence.83 16

Art. 79 (g) bears direct relevance to the newly fashioned Art. 25, obliging the court to which an application for the return of a child is made to invite the parties to consider “mediation or other means of alternative dispute resolution”,84 and to do so “either directly or, where appropriate, with the assistance of the Central Authorities”.

69 Kruger, NIPR 2017, 462, 474 et seq. 70 Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 44; Schlauß, ZKJ 2022, 206, 208 (fn. 28); Schlauß/Fucik in Garber/Lugani, note 16/107. 71 Magnus/Mankowski/de Lima Pinheiro, Art. 55 Brussels IIbis Regulation note 10; González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), p. 349, 354; see on the Hague Child Protection Convention Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 31 KSÜ note 5. 72 Gitschthaler/Prisching, Art. 55 Brüssel IIa-VO note 7. 73 Gitschthaler/Prisching, Art. 55 Brüssel IIa-VO note 7; Rauscher/Rauscher, Art. 55 Brüssel IIa-VO note 2. 74 Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 458 (fn. 12); Schlauß, ZKJ 2022, 206, 208 (fn. 28); Schlauß/Fucik in Garber/Lugani, notes 16/105, 16/106; see https://www.mikk-ev.de (last visited 31 January 2022). 75 See the overview “Supporting parents in cross-border family disputes and parental child abduction”, available at https://www.europarl.europa.eu/at-your-service/en/be-heard/coordinator-on-children-rights/for-parents (last visited 21 January 2022). 76 See https://www.europarl.europa.eu/at-your-service/en/be-heard/coordinator-on-children-rights (last visited 21 January 2022). The post of the European Parliament Coordinator on Children’s Rights was formerly known as the European Parliament Mediator, see also Carpaneto in Queirolo/Heiderhoff (eds.), Party Autonomy in European Private (And) International Law, I (2015), p. 247, 278. 77 See https://crossbordermediator.eu/about (last visited 21 January 2022). 78 Rauscher/Rauscher, Art. 55 Brüssel IIa-VO note 2; Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 5. 79 Staudinger/Pirrung (2018) note C 197. 80 Fasching/Konecny/Fucik, Art. 54 EuEheKindVO note 5. 81 Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 44. 82 Kruger, International Child Abduction (2011), p. 160; Zˇupan in Honorati (ed.), Jurisdiction in Matrimonial Matters, Parental Responsibility and International Abduction (2017), p. 265, 279. 83 Recital (43) cl. 3, see Schlauß/Fucik in Garber/Lugani, note 16/101. 84 See Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 458; S. Corneloup/Kruger, Rev. crit. dr. int. pr. 109 (2020), 215, 224; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 194; Schlauß/Fucik in Garber/Lugani, note 16/100.

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Art. 80 Brussels IIter

Article 80 Cooperation on collecting and exchanging information relevant in procedures in matters of parental responsibility 1. Upon a request made with supporting reasons, the Central Authority of the Member State where the child is or was habitually resident or present, directly or through courts, competent authorities or other bodies: (a) shall, where available provide, or draw up and provide a report on: (i) the situation of the child; (ii) any ongoing procedures in matters of parental responsibility for the child; or (iii) decisions taken in matters of parental responsibility for the child; (b) shall provide any other information relevant in procedures in matters of parental responsibility in the requesting Member State, in particular about the situation of a parent, a relative or other person who may be suitable to care for the child, if the situation of the child so requires; or (c) may request the court or competent authority of its Member State to consider the need to take measures for the protection of the person or property of the child. 2. In any case where the child is exposed to a serious danger, the court or competent authority contemplating or having taken measures for the protection of the child, if it is aware that the child’s residence has changed to, or that the child is present in, another Member State, shall inform the courts or competent authorities of that other Member State about the danger involved and the measures taken or under consideration. This information may be transmitted directly or through the Central Authorities. 3. The requests referred to in paragraphs 1 and 2 and any additional documents shall be accompanied by a translation into the official language of the requested Member State or, where there are several official languages in that Member State, into the official language or one of the official languages of the place where the request is to be carried out, or any other language that the requested Member State expressly accepts. Member States shall communicate such acceptance to the Commission in accordance with Article 103. 4. Except where exceptional circumstances make this impossible, the information referred to in paragraph 1 shall be transmitted to the requesting Central Authority no later than three months following the receipt of the request. I. General Considerations . . . . . . . . . . . . . II. Collection and Exchange of Information upon Request (Art. 80 (1)) . . . . . . . . . . 1. Request for Information . . . . . . . . . . . . 2. Report on the Situation of the Child (Art. 80 (1) (a) (i)) . . . . . . . . . . . . . . . 3. Report on Any Ongoing Procedures and on Decisions Taken (Art. 80 (1) (a) (ii), (iii)) .

1

. .

2 2

.

5

.

7

4. Duty to Provide Any Other Relevant Information (Art. 80 (1) (b)) . . . . . . . . . . . . . . . 8 5. Request to Consider Protective Measures (Art. 80 (1) (c)) . . . . . . . . . . . . . . . . . . 9 6. Translations (Art. 80 (3)) . . . . . . . . . . . . 10 7. Timing (Art. 80 (4)) . . . . . . . . . . . . . . . 11 III. Information about a Serious Danger to a Child and about Protective Measures Taken or Under Consideration (Art. 80 (2)) . . . . . 13

I. General Considerations The ECJ held that cross-border cooperation in the context of cases relating to parental responsibility “includes, in particular, collection and exchange of information on the situation of the child, on any procedures under way and on decisions taken concerning the child.”1 Consequently, Art. 80 imposes 1 A., (Case C-523/07) (2009) ECR I-2805 para 62 with reference to Art. 55 Brussels IIbis Regulation.

Knöfel

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1

Art. 80 Brussels IIter Collection and exchange of information on the situation of the child duties upon Central Authorities to furnish relevant information, e.g. on the child’s situation, and to carry out requests for such information transmitted by the Central Authority of another Member State. The provision corresponds directly to Art. 79 (b), which defines the duty of the Central Authority to provide for information exchange as a specific task (supra Art. 79 note 9 [Knöfel]). Art. 80 (1) supplements Art. 79 (b) by describing the subject-matters and circumstances of the exchange of information, especially the steps to be taken in order to obtain a report on the situation of a child. But Art. 80 is silent on the carrying out of requests for information within the requested Member State,2 so that it is for the Member States to put appropriate legislation into place, and to define competencies accordingly. For example, under German law, sec. 6 IntFamRVG serves as a legal basis for the Central Authority to execute a request for information under Art. 80, authorising the BfJ to take all measures considered appropriate, and to avail itself of competent authorities (supra Art. 76 note 6 [Knöfel]).

II. Collection and Exchange of Information upon Request (Art. 80 (1)) 1. Request for Information 2

Art. 80 reproduces in substance Art. 55 (a) Brussels IIbis Regulation, and is the equivalent of Art. 32 of the Hague Child Protection Convention.3 As its predecessors, Art. 80 envisages the case in which a court or an authority entitled to issue a request (Art. 78 (2) cl. 1) is concerned about the situation of a child who is or was habitually resident or present in another Member State. In this scenario, the Central Authority of that other State must carry out a request – transmitted by the Central Authority of the Member State of the requesting court or authority (Art. 78 (3)) – to provide a report on the child’s situation4 (Art. 80 (1) (a) (i)) and on other relevant facts and circumstances (Art. 80 (1) (a) (ii), (iii)). Unlike Art. 32 of the Hague Child Protection Convention, but similar to Art. 55 Brussels IIbis Regulation, Art. 80 does not only authorize the requested Central Authority to carry out such a request,5 but requires the Central Authority to do so on “an autonomous and uniform legal basis”.6 Cooperation in the field of the collection and exchange of information is not merely optional, but mandatory. For the sake of clarity, Art. 80 (1) points out that such an obligation is only imposed upon the Central Authority of the Member State where the child is or was habitually resident or present – a clarification not contained in Art. 55 (a) Brussels IIbis Regulation yet. The competency for issuing a request under Art. 80 is not addressed explicitly in Art. 80, but specified in Art. 78 (2). In this respect, the Brussels IIter Regulation differs slightly from the Hague Child Protection Convention, which leaves requests under Art. 32 to the Central Authority or to another competent authority of a State “with which the child has a substantial connection.”7 This expression appeared in Brussels IIter Proposal of 2016 (Art. 64) also,8 but such reliance on a “substantial connection” proved to be rather vague,9 so that Art. 80 does not retain this criterion.

3

Just like the similarly drafted Art. 79, Art. 80 authorizes the Central Authorities to act “directly or through courts, competent authorities or other bodies”. As there is no qualifying language of any kind with respect to “other bodies”, the opening words of Art. 80 evidence that the Central Authority is free to act on its own or to employ intermediaries, if national law so provides (supra Art. 79 note 2 [Knöfel]). In Germany, the Central Authority will avail itself of the competent child welfare agency (infra Art. 80 note 5 [Knöfel]).

2 3 4 5 6 7 8 9

Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192 et seq. MünchKommFamFG/D. Wiedemann, 3rd ed. 2019, Art. 32 KSÜ notes 1–3; Lortie, NIPR 2021, 670, 690. See on Art. 32 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 593. Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 593; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 47. Althammer/Großerichter, Art. 55 Brussels IIa note 8. See Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 46. COM (2016) 411 final, see Magnus/Mankowski/de Lima Pinheiro, Art. 55 Brussels IIbis Regulation note 13. Krah, Das Haager Kinderschutzübereinkommen (2004), p. 278 et seq.

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Any request under Art. 80 (1) must be made “with supporting reasons”. This prerequisite appeared 4 in Art. 32 of the Hague Child Protection Convention already. The obligation laid upon applicants or the requesting authority to provide “supporting reasons” does not imply to observe any particular formalities, but demands the requesting body or person to make clear the legal and factual grounds on which the request is based, without demanding to overcome high stakes and hurdles, as the Brussels IIter Regulation is based on the trust which the Member States accord to each other’s legal systems.10 However, Recital (81) cl. 2 declares that “(th)e request should contain, in particular, a description of the procedures for which the information is needed and the factual situation that gave rise to those procedures.” 2. Report on the Situation of the Child (Art. 80 (1) a) (i)) The transmission of social reports is an important, well-established tool for monitoring the situation 5 of the child in the cross-border dimension, especially from the point of view of child welfare authorities.11 Thus, Art. 80 (1) (a) (i) obliges the Central Authority to draw up and provide a report on the situation of the child. Art. 80 (1) (a) (i) draws its inspiration from Art. 7 (2) (d) of the Hague Child Abduction Convention,12 which demands to exchange “information relating to the social background of the child”.13 Accordingly, the report required under Art. 80 (1) (a) (i) may contain any information on the child’s social background, i.e. on “circumstances related to the physical, psychological and intellectual development of the child”,14 including, but not limited to, information about the child’s location and accomodation, “in particular, where and with whom the child is living”,15 further, about the child’s schooling and about medical care, including expert opinions, such as psychological or psychiatric opinions.16 In legal practice, the Central Authority will often avail itself of a national child welfare authority, which then provides administrative assistance (Amtshilfe) to the Central Authority, enabling the Central Authority to fulfil its duties under Art. 80 (1) (a) (i).17 In Germany, such a duty of the child welfare authority (Jugendamt) to provide assistance to the Central Authority is laid down in sec. 9 IntFamRVG.18 For example,19 a Czech child welfare authority may be concerned about the fate of a child living in a family which is present in the Czech Republic, but known to German authorities also. If the Czech authority needs information in order to put protective measures into place, it may turn to the Czech Central Authority (Office for International Legal Protection of Children), which will then transmit a request to the German Central Authority (Bundesamt für Justiz) under Art. 80 (1) (a). The latter will forward the request to the German child welfare agency (Jugendamt),

10 Schlauß/Fucik in Garber/Lugani, note 16/110. 11 COM (2016) 411 final, p. 16. 12 Staudinger/Pirrung (2018) note C 193; Gitschthaler/Prisching, Art. 55 Brüssel IIa-VO note 3; see also Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 112. 13 See in detail Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 454. 14 See on the circumstances that the court must know of to taken definitive measures under Art. 20 (2) Brussels IIbis Regulation A., (Case C-523/07) (2009) ECR I-2805 para 59. 15 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003), p. 34. 16 Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194. 17 Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194. 18 Wicke/Reinhardt, JAmt 2007, 453, 457 et seq.; Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194; Staudinger/Pirrung (2018) note C 193; Heiderhoff in Dutta/Jacoby/D. Schwab (eds.), FamFG, 4th ed. 2022, § 9 IntFamRVG note 1; Schlauß/Fucik in Garber/ Lugani, note 16/119. See also in Swedish law Sec. 12 Lag med kompletterande bestämmelser till Bryssel II-förordningen (16 June 2022), SFS 2022:959 (23 June 2022), obling a local authority (socialnämd) to draw up a report under Art. 80 (1) (a) (i). 19 Deutsches Institut für Jugendhilfe und Familienrecht e.V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194.

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Art. 80 Brussels IIter Collection and exchange of information on the situation of the child which ist obliged under national Law (sec. 9 IntFamRVG) to disclose and forward any information relevant to or useful for child protection in the Czech Republic.20 6

It is submitted that a report on the situation of the child can be obtained via Art. 80 (1) (a) (i), but may also be considered as the performance of taking of evidence (Art. 1 European Evidence Regulation21), and that recourse to the Evidence Regulation is preferrable, as the courts of the Member States communicate directly within the framework of the Evidence Regulation (Art. 3 European Evidence Regulation), rendering the processing of requests by Central Authorities superfluous.22 However, the legal avenue via the Evidence Regulation is only open to courts (Art. 2 (1) European Evidence Regulation) intending to use the evidence in judicial proceedings (Art. 1 (2) European Evidence Regulation), but cannot be used by non-judicial authorities of any kind, whereas a request for information under Art. 80 (1) (a) (i) may be initiated by any body entitled to issue a request under Art. 78 (2), thus including any “competent authority”. 3. Report on Any Ongoing Procedures and on Decisions Taken (Art. 80 (1) (a) (ii), (iii))

7

A court in a Member State, before handing down a decision relating to a child, may want to be furnished with information “on whether there are pending proceedings in another country and ask for copies of any decisions ordering protective measures for other children from the same family”.23 Thus, a request for information under Art. 80 (1) may also require the Central Authority to report on judicial proceedings it knows of or can obtain knowledge about. The new expressions “any ongoing procedures in matters of parental responsibility for the child” ((1) (a) (ii)) and “decisions taken in matters of parental responsibility for the child” ((1) (a) (ii)) have been substitued for the phrases “any procedures under way” and “decisions taken concerning the child”, which appeared in the Art. 55 (a) Brussels IIbis Regulation, but seemed not to be precise enough. Under Art. 80 (1) (a) (ii), (iii), it does not make any difference whether relevant procedures or decisions are pending or taken in a Member State or in a Third State. Thus, the Central Authority has to report on Member State proceedings as well as on Third State proceedings,24 provided that they bear relevance to matters of parental responsibility for the child. 4. Duty to Provide Any Other Relevant Information (Art. 80 (1) (b))

8

Under Art. 55 Brussels IIbis Regulation, it was felt that the obligation to provide a report on relevant information was not broad enough. It was somewhat unclear whether the term “situation of the child” covered requests for information referring to the situation of a parent or sibling,25 so that occasional recourse to the European Evidence Regulation seemed necessary.26 Practitioners called for “better drafting.”27 The Proposal of 2016 “clarifies to cover also reports on adults or siblings which are of relevance in child-related proceedings under the Regulation if the situation of the child so requires,”28 and so does Art. 80 (1) (b).29 The provision should be given a broad meaning, as it refers to “any other information relevant in procedures in matters of parental responsibility”. Art. 80 (1) (b) allows for re20 Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194. 21 Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast), OJ 2020 L 405/1 (version applicable from 1 July 2022). 22 Tentatively Schlauß/Fucik in Garber/Lugani, note 16/114; see on Art. 55 (a) Brussels IIbis Regulation Fasching/Konecny/Fucik, Art. 55 EuEheKindVO note 4; see also MünchKommFamFG/D. Wiedemann, 3rd ed. 2019, Art. 32 KSÜ note 3. 23 COM (2016) 411 final, p. 16. 24 Staudinger/Pirrung (2018) note C 193. 25 Fucik, (2016) IFL 169, 174; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 187. 26 Fucik, (2016) IFL 169, 174; MünchKommFamFG/D. Wiedemann, 3rd ed. 2019, Art. 32 KSÜ note 3. 27 Fucik, (2016) IFL 169, 173. 28 COM (2016) 411 final, p. 16. 29 A. Schulz, FamRZ 2020, 1141, 1149 (fn. 92); Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192; Schlauß/Fucik in Garber/Lugani, note 16/114.

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quests for information including, but not limited to “the situation of a parent, a relative or other person who may be suitable to care for the child.” These terms serve as illustrations for the over-all (and catch all) notion of “information relevant in procedures in matters of parental responsibility”. The provision also covers information about the relationship between the above-mentioned persons, i.e. to the relationship between siblings.30 The mechanism provided by Art. 80 (1) reaches a quite high level of disclosure upon request which even exceeds the degree of cross-border cooperation that can be obtained by issuing a letter rogatory under Art. 35 (2) of the Hague Child Protection Convention, as the latter provision reserves the right to issue a letter rogatory to authorities of a requesting State in which the child does not habitually reside.31 However, Art. 80 (1) (b) presupposes as a prerequisite that any information to be included in the report is obtainable in the requested Member State. The Central Authority is not obliged to issue a letter of request to a third Member State, in order to be able to comply with the initial request of the requesting Member State. 5. Request to Consider Protective Measures (Art. 80 (1) (c)) Pursuant to Art. 80 (1) (c), which is new to the Brussels regime, but duplicates Art. 32 (b) of the Ha- 9 gue Child Protection Convention, the requested Central Authority may request the court or competent authority of its Member State to consider the need to take measures for the protection of the person or property of the child. With a view to Art. 32 (b) of the Hague Child Protection Convention, doctrine advocates for an autonomous approach to the notion “need”, as in such an early stage of proceedings, the national law governing protective measures may not have been determined yet.32 The application of Art. 80 (1) (c) may lead to a request for transfer of jurisdiction pursuant to Art. 13, as considering protective measures pursuant to Art. 32 (b) of the Hague Child Protection Convention may be a preliminary stage to a request pursuant to Art. 9 of the Convention.33 6. Translations (Art. 80 (3)) Art. 80 (3) elaborates on the language into which communications according to Art. 80 (1) and (2) and any additional documents are to be translated. The provision is new to the Brussels framework,34 but explicit and suffices to itself. Any request is drafted in its original language, but must be supplemented by a translation either into the (only) official language of the requested State (e. g. into French when a request is forwarded to France), or into one of several official languages of that State (e.g. into Flemish, French or German when a request is forwarded to Belgium), depending on the place where the request is to be carried out. As English clearly is the predominant working language used between Central Authorities,35 the idea behind (3) is to simplify direct communication of courts under Art. 80 (2) cl. 2, taking into account that requests for information will be received by a Central Authority, but passed on to national authorities, especially to child welfare agencies, which are used to being addressed in their official language. However, Member States are free to accept any other language, and obliged to communicate such acceptance to the Commission (Art. 103).

10

7. Timing (Art. 80 (4)) Speedy action is vital to proceedings on parental responsibility. In recognition of this fact, Art. 80 (4) 11 imposes upon Central Authorities an obligation to transmit information referred to in (1) no later than three months36 following the receipt of the request. Neither Art. 32 of the Hague Child Protec30 31 32 33 34 35 36

COM (2016) 411 final, p. 16. Lortie, NIPR 2021, 670, 690 (fn. 89). Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 32 KSÜ note 8. Staudinger/Pirrung (2018) note D 159. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190. According to the Commission Proposal of 2016 (Art. 64 (6), COM (2016) 411 final), the timeframe was even narrower, as the requested information was to be transmitted no later than two months following the receipt of the request; see Magnus/Mankowski/De Lima Pinheiro, Art. 55 Brussels IIbis Regulation note 13; Garber in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 144; Bergquist/Fayad/

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Art. 80 Brussels IIter Collection and exchange of information on the situation of the child tion Convention nor Art. 55 Brussels IIbis Regulation impose such a strict deadline,37 so that Art. 80 (4) clearly contains an innovation.38 However, concerns have been expressed about the feasibility of the time limit established by Art. 80 (4),39 referring to the fact that Art. 80 (4) only addresses the Central Authorities, whereas in legal practice, requests for information are usually passed on to national authorities which are not required by EU law to observe any time limit whatsoever.40 It is for national law and thus for the Member States to provide for timeframes addressing national authorities or applicable to their proceedings accordingly.41 Recital (85) cl. 2 assumes an “obligation of the competent national authority to provide the information, or explain why it cannot be provided, to the requested Central Authority in such time as to enable it to comply with that timeframe”, but, as a mere Recital, is not binding; further, it remains doubtful whether EU law can impose such an obligation upon national authorities42 as the Regulation normally does not interfere with the execution of requests, neither does it relate to administrative proceedings within a Member State. 12

What is more, Art. 80 (4) fails to deal with obstacles hindering a Central Authority from acting expeditiously. It is unclear what happens if the Central Authority is virtually unable to carry out a request in time.43 Art. 80 (6) and Recital (85) indicate that the time limit may be exceeded if “exceptional circumstances” make it impossible to comply with the request within three months. This seems too obscure to provide clear guidance, as Art. 80 (6) does not elaborate on the concept of “exceptional circumstances”. The notion can possibly be construed in analogy to the understanding of “exceptional circumstances” prevailing under neighbouring EU instruments on legal assistance. Within the meaning of Art. 19 (5) cl. 3 European Evidence Regulation,44 an example for “extraordinary circumstances” is provided by a general suspension of the administration of law, i.e. a situation in which, as a consequence of war, catastrophe or any other event, courts and authorities cease their activities.45 Such a situation may also qualify as “extraordinary circumstances” under Art. 80 (4). However, it is suggested to apply, in the case of a Central Authority unable to react within the deadline, by way of analogy, Art. 53 (2) cl. 3 European Maintenance Regulation,46 which reads as follows: “If the requested Central Authority is not able to provide the information requested it shall inform the requesting Central Authority without delay and specify the grounds for this impossibility.” Such an analogy seems to be supported by other EU provisions on legal assistance, e. g. by Art. 17 European Evidence Regulation,47 which explicitly provides for a notification of delay.48 Thus, the Central Authority can be expected to communicate the reasons which prevent it from executing the request swiftly. Further, Art. 80 (6) does not answer the question whether a Central Authority must comply with the three-months rule if the request is incomplete, e.g. lacks “supporting reasons” (Art. 80 (1)).49

37 38 39 40 41 42 43 44

45 46 47

48 49

Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 200. Lortie, NIPR 2021, 670, 690 (fn. 87). Brosch, GPR 2020, 179, 188. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192 et seq. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192 et seq. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 193. But see tentatively Schlauß/Fucik in Garber/Lugani, note 16/118: “Verpflichtung der nationalen Behörden”. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 193. Art. 19 (5) cl. 3 European Evidence Regulation reads as follows: “However, in extraordinary circumstances where the central body or competent authority was prevented from reacting to the request within the deadline following the reminder, grounds for the refusal of direct taking of evidence may exceptionally still be invoked at any time after the expiration of that deadline until the moment of the actual direct taking of evidence.” Knöfel, RIW 2021, 247, 255. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 193. Art. 17 European Evidence Regulation reads as follows: “If the requested court is not in a position to execute the request within 90 days of receipt of the request, it shall inform the requesting court thereof using form J in Annex I. When it does so, it shall give the grounds for the delay as well as the estimated time it expects it will need to execute the request.” See also Recital (15) cl. 2 European Evidence Regulation: “If it is not possible for a request to be executed within 90 days of its receipt by the requested court, the requested court should inform the requesting court accordingly, stating the reasons which prevent it from executing the request swiftly.” McClean, p. 108. Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 193.

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In this case, one might employ an analogy to Arts 10, 11 European Evidence Regulation, dealing with “incomplete requests” (Art. 10) and “completion of the request” (Art. 11) respectively. However, the recommendation contained in Recital (85) cl. 3 that “all competent authorities involved should strive to provide the reply even more quickly than within this maximum timeframe” seems far too optimistic, at least very ambitious.

III. Information about a Serious Danger to a Child and about Protective Measures Taken or Under Consideration (Art. 80 (2)) Art. 80 (2) has been considered as a step towards “direct harmonization of family law”.50 This judg- 13 ment seems somewhat premature, as Art. 80 (2) exclusively deals with children leading a peripatetic life, i.e. moving back and forth between several Member States, so that the provision’s scope is rather narrow.51 Being new to the Brussels framework as such, Art. 80 (2) is the direct equivalent of Art. 36 of the Hague Child Protection Convention,52 which has been integrated into the wording of the present provision, as it was integrated into Art. 34 of the Hague Adult Protection53 before.54 In the context of EU law, though, Art. 80 (2) attempts to reflect the case-law of the ECJ. The scenario covered by Art. 80 (2) neighbours a situation upon which the ECJ dwelt in its decision A of 2009,55 so the content of Art. 80 (2) is not entirely new to the acquis communautaire. In A, Finnish courts, although lacking jurisdiction to decide upon definitive measures in the field of parental responsibility for children usually residing in Sweden, but leading a peripatetic life in Finland, were held responsible for notifying the courts of Sweden of a protective measure (i.e. a taking into care) that had been adopted in Finland (as formerly provided for in Art. 20 Brussels IIbis Regulation and now in Art. 15 Brussels IIter Regulation). In this context, the ECJ declared that “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”.56 As Art. 80 (2) now directly adresses “the court or competent authority contemplating or having taken measures for the protection of the child” (cl. 1), and leaves it to the court to transmit information “directly or through the Central Authorities” (cl. 2), an ideological parentage of A for the integration of Art. 36 of the Hague Child Protection Convention into the Brussels IIter Regulation seems quite obvious. Generally spoken, A demands the courts of different Member States to share their knowledge about the situation of the child, about potential hazards to the child, and especially about measures taken to protect the child, if the best interests of the child so require. Now Art. 80 (2) assigns to a court or a competent authority of a Member State the task of notifying the courts or authorities of another Member State of a serious danger to a child, if certain prerequisites are met. Art. 80 (2) envisages a case in which a court or an authority of a Member State has established that 14 the best interests of a child are at risk, and thus plans to take, or has already taken, a protective measure, but then learns or is aware of the fact that the child is present in another Member State.57 In this scenario, the court or authority must inform the courts or authorities of the other State of any serious danger to the child, and alert them to any protective measures already taken or contemplated. The obligation of a court or authority to act under Art. 80 (2) is limited to cases in which a child is exposed to “serious danger”. The notion of “danger” is closely, but implicitly linked to the concept of

50 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192. 51 See on Art. 36 of the Hague Child Protection Convention Siehr, RabelsZ 62 (1998), 464, 498: “recht spezielle Situation international vagabundierender Kinder”. 52 Lortie, NIPR 2021, 670, 690. 53 Hague Convention of 13 January 2000 on the International Protection of Adults, BGBl. 2007 II 323. 54 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 1. 55 A., (Case C-523/07) (2009) ECR I-2805 para 65 = LMK 2009, 282910 note Rauscher; see Gitschthaler/Prisching, Art. 53 Brüssel IIa-VO note 4. 56 A., (Case C-523/07) (2009) ECR I-2805 para 65 = LMK 2009, 282910 note Rauscher. 57 See Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion IA 1.104 LS (28 January 2013), JAmt 2013, 194.

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Art. 81 Brussels IIter Implementation of decisions in another Member State urgency under Art. 15, i.e. to the head of jurisdiction provided for “urgent cases”.58 Thus, a danger is serious when certain circumstances pose a risk of considerable harm to the child, so that the court or authority needs to act with the aim of “protecting the physical, mental or psychological best interests of a child”.59 Examples of such circumstances are provided by “illness requiring constant treatment, drugs, unhealthy influence of a sect”.60 Potential damage to property belonging to a child does not suffice.61 When the court or authority is aware of a relevant danger, it is obliged to notify the danger involved and the measures considered or taken. It does not matter whether the court or authority has or had jurisdiction to take such a measure.62 However, the child must be present in a Member State. Contrary to the approach taken by Art. 36 of the Hague Child Protection Convention,63 Art. 80 (2) does not apply at all if the child is present in a Third State. This difference in the wording of Art. 80 (2) (“in another Member State”, “that other Member State”) as opposed to Art. 36 of the Hague Child Protection Convention (“in another State”, “that other State”) should be noted. 15

According to Art. 80 (2), the court or authority must act ex officio and of its own motion,64 but can choose freely between direct communication with the foreign court or authority, and transmission of information through the Central Authority (Art. 80 (2) cl. 2). Therefore, Art. 80 (2) is directly linked to Art. 86, which generally encourages direct cooperation and communication between courts. In legal practice, application of Art. 80 (2) may prove to be quite rare, as any cross-border notice of a serious danger and of protective measures can only be given if the court or authority contemplating or having taken a protective measure happens to know about the presence of the child in another State.65 However, the court or authority can issue a request pursuant to Art. 79 (a) before it proceeds under Art. 80 (2).66

Article 81 Implementation of decisions in matters of parental responsibility in another Member State 1. A court of a Member State may request the courts or competent authorities of another Member State to assist in the implementation of decisions in matters of parental responsibility given under this Regulation, in particular in securing the effective exercise of rights of access. 2. The request referred to in paragraph 1 and any accompanying documents shall be accompanied by a translation into the official language of the requested Member State or, where there are several official languages in that Member State, into the official language or one of the official 58 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 2, referring to the relationship between Art. 36 and Art. 11 of the Hague Child Protection Convention. 59 See on secs. 1666, 1666a German Civil Code (BGB) ECtHR, Wunderlich v. Germany, Application No. 18925/ 15, ECLI:CE:ECHR:2019:0110JUD001892515 para 45 = BeckRS 2019, 155 = FamRZ 2019, 449 note Salgo 451 and note Grohmann 452. 60 See on Art. 36 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595; see also Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 2; Staudinger/Pirrung (2018) note 2018, D 169; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 59. 61 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 2; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 59. 62 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 2. 63 Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595; see also Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 1; Staudinger/Pirrung (2018) note D 169; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 46. 64 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 192. 65 See on Art. 36 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595; see also Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 36 KSÜ note 3. 66 See on Art. 36 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595; see also Staudinger/Pirrung (2018) note D 169.

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languages of the place where the request is to be carried out or any other language that the requested Member State expressly accepts. Member States shall communicate such acceptance to the Commission in accordance with Article 103. I. General Considerations . . . . . . . . . . . . .

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II. Request for Assistance in the Implementation of Decisions (Art. 81 (1)) . . . . . . . . . 1. Requesting Court of a Member State . . . . . .

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2. Decision in a Matter of Parental Responsibility . . . . . . . . . . . . . . . . . . . 3. Assistance by Courts or Competent Authorities of Another Member State . . . . . . . . . . II. Translations (Art. 81 (2)) . . . . . . . . . . . .

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I. General Considerations Art. 81 (1) is new to the Brussels framework.1 The provision draws its inspiration from Art. 21 (2) of 1 the Hague Abduction Convention, which holds the Central Authorities responsible for the promotion of “the peaceful enjoyment of access rights” and for “steps to remove, as far as possible, all obstacles to the exercise of such rights”,2 and from Art. 35 (1) of the Hague Child Protection Convention,3 which establishes a mechanism of mutual legal assistance between national authorities serving much the same purpose. Art. 81 (1) seems to reflect a compromise between the solutions adopted by the Hague Conventions. Art. 81 (1) retains the mechanism of legal assistance as established by Art. 35 (1) of the Hague Child Protection Convention, but Art. 79 (d) adds a duty or “specific task” of the Central Authority to facilitate communication between courts, competent authorities and other bodies involved for the application of Art. 81 (supra Art. 79 note 12 [Knöfel]). Notwithstanding the difference in the distribution of responsibilities, both Hague provisions aim at “organizing and securing of the actual exercise of access rights”4 by demanding action to be taken upon a request for “assistance in order to secure the effective exercise of rights of access (visitation) as well as the right to maintain direct contacts on a regular basis”,5 and so does Art. 81 (1).

II. Request for Assistance in the Implementation of Decisions (Art. 81 (1)) 1. Requesting Court of a Member State The request must emanate from a “court of a Member State”. General guidance to the meaning of 2 “court” is given in Art. 2 (2) (1), defining a court as “any authority in any Member State with jurisdiction in the matters falling within the scope of this Regulation.” Quite unlike as under, and in contrast to, Art. 35 (1) of the Hague Child Protection Convention (“competent authorities”) and Art. 78 (2) cl. 1 (“a court or a competent authority”), but confirmed by the unambiguous wording, Art. 81 (1) excludes administrative authorities, such as child welfare agencies, even if they resemble a judicial authority of a Member State. 2. Decision in a Matter of Parental Responsibility Art. 35 (1) of the Hague Child Protection Convention does not elaborate on the situations giving rise to a request for assistance.6 Under the Hague Convention, examples used for purposes of illustration are the cases of a child being present in the requested State or being placed in that State (Art. 33 of the Hague Child Protection Convention) and of wrongful removal or retention (Art. 7 of the Hague

1 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153. 2 See Siehr, RabelsZ 62 (1998), 464, 497. 3 Lortie, NIPR 2021, 670, 690; Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 200. 4 Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 465. 5 Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 593. 6 Staudinger/Pirrung (2018) note D 165.

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Art. 81 Brussels IIter Implementation of decisions in another Member State Child Protection Convention).7 Art. 81 (1) settles for a more formal approach, as the wording makes clear that a request for assistance can be issued only for the implementation of a “decision” taken by a court of a Member State in a matter of parental responsibility. Thus, a request pursuant to Art. 81 (1) demands a procedural act qualifying as a “decision” within the meaning of Art. 2 (1), i. e. “a decree, order or judgment (…) concerning matters of parental responsibility.” The decision which a court requests to implement in another Member State must have been “given under the Regulation”, that is, fall within its material scope of application as defined by Art. 1 (1) (b), (2). One might judge from the wording of Art. 81 (1) that the decision in question must have been handed down already before the request for assistance can be issued. However, Recital (82) cl. 1 declares that a court “contemplating such a decision” will also be able to issue a request for assistance pursuant to Art. 81 (1). Anyway, in legal practice, a request pursuant to Art. 81 (1) appears feasible only if the court seised is aware of the fact that the child is about to move to another Member State even before the decision is handed down in the first place.8 3. Assistance by Courts or Competent Authorities of Another Member State 4

If the conditions for a request are met, Art. 81 (1) puts “courts or competent authorities of another Member State”, i.e. all authorities of the requested State, under the obligation to execute the request by assisting in the implementation of the foreign decision. Art. 81 (1) explicitly mentions assistance “in securing the effective exercise of rights of access”. This main example serves as an illustration only and should not be treated as conclusive. Such assistance may include any measure that is conducive to “securing the peaceful enjoyment of access rights without endangering custody rights.”9 Recital (82) cl. 2 makes it clear that the assistance required can, and most often will, comprise “accompanying measures of the courts or competent authorities in the Member State where the decision is to be implemented”, particularly with regard “to decisions granting supervised access which is to be exercised in a Member State other than the Member State where the court ordering access is located”.10 For a example, when a child has been brought to live in another Member State after a decision on access rights has been taken,11 the courts and authorities of that other State must, upon request, ensure that the right to access can be exercised properly.12 The notion of “access” also comprises “non-physical contact, such as telephone or letter contact”,13 or contact via electronic means. When a child moves to a Member State after a placement of the child or another aspect of parental responsibility has been decided upon in another Member State,14 the courts of the forum State may also issue a request under Art. 81 (1), upon which the courts and competent authorities have to support the implementation of the decision in the requested Member State.

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Pursuant to Art. 81 (1), the courts or competent authorities of a Member State can also be required to assist in discovering the whereabouts of a child, or to provide a report on the situation of a child, or to furnish any other information, e.g. on the circumstances of the placement of the child in an institution,15 if the implementation of a decision in a matter of parental responsibility so requires. Generally, the requested court or authority may have to engage in the same activities that are, pursuant to Arts. 79, 80, incumbent on Central Authorities.

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Art. 81 (1) creates explicit obligations to be fulfilled by courts and authorities upon request. But the Central Authority is also reponsible for the implementation of decisions relating to cross-border ac7 Staudinger/Pirrung (2018) note D 165. 8 Staudinger/Pirrung (2018) note D 165. 9 See on Art. 21 of the Hague Abduction Convention Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 465. 10 See also Staudinger/Pirrung (2018) note D 165; Schlauß/Fucik in Garber/Lugani, note 16/77. 11 See on the case of a German court ordering supervised access to be exercised in Poland, where a court guardian was employed, OLG Köln FamRZ 2017, 1514 note Menne; see also Menne, ZEuP 2019, 472, 495 et seq. 12 See also Staudinger/Pirrung (2018) note D 165. 13 Lowe, (2002) 14 CFLQ 191, 199; MünchKommFamFG/D. Wiedemann, 3rd ed. 2019, Art. 35 KSÜ note 1. 14 See with regard to recognition and enforcement (Art. 23 of the Hague Child Protection Convention) in Germany of a protective measure taken by a Swiss Court AG Hamm FamRZ 2022, 223 notes Erb-Klünemann and Menne; see also Finger, FuR 2022, 225 et seq. 15 See on Art. 35 (1) of the Hague Child Protection Convention Staudinger/Pirrung (2018) note D 165.

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cess,16 as Art. 79 (d) demands the Central Authority to facilitate the communication between courts in situations arising under Art. 81 (supra Art. 79 note 12 [Knöfel]). As the Pérez-Vera Report observes with regard to the Hague Abduction Convention, the Convention “gives no examples of how Central Authorities are to organize this co-operation so as to secure the ‘innocent’ exercise of access rights, since such examples could have been interpreted restrictively.”17 What is more, “the specific measures which the Central Authorities concerned are able to take will depend on the circumstances of each case and on the capacity fo act enjoyed by each Central Authority.”18 Both observations are also true for the Brussels IIter Regulation. Central Authority practice has developed ways of making sure that access rights are exercised properly, and that court-to-court communication on such a matter is successful. For example, in appropriate cases, a Central Authority may cater for undertakings given by the persons involved, and specifying the circumstances under which access rights are intended to be exercised.19 There is no provision relating to grounds for refusing to execute a request for assistance. Execution may possibly be refused by the requested court or authority on the ground that a procedure or a measure to be taken is incompatible with the law of the State of execution.20

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II. Translations (Art. 81 (2)) Art. 81 (3) is the direct equivalent of Art. 80 (3), requiring the request under Art. 81 (1) and any additional documents to be translated into the official language of the requested State (supra Art. 80 note 10 [Knöfel]). The Member States can accept any other language, which they have to notify to the Commission (Art. 103).

Article 82 Placement of a child in another Member State 1. Where a court or a competent authority contemplates the placement of a child in another Member State, it shall first obtain the consent of the competent authority in that other Member State. To that effect the Central Authority of the requesting Member State shall transmit to the Central Authority of the requested Member State where the child is to be placed a request for consent which includes a report on the child together with the reasons for the proposed placement or provision of care, information on any contemplated funding and any other information it considers relevant, such as the expected duration of the placement. 2. Paragraph 1 shall not apply where the child is to be placed with a parent. Member States may decide that their consent pursuant to paragraph 1 is not required for placements within their own territory with certain categories of close relatives in addition to parents. Those categories shall be communicated to the Commission pursuant to Article 103. 3. The Central Authority of another Member State may inform a court or competent authority which contemplates a placement of a child of a close connection of the child with that Member State. This shall not affect the national law and procedure of the Member State contemplating the placement. 4. The request and any additional documents referred to in paragraph 1 shall be accompanied by a translation into the official language of the requested Member State or, where there are several official languages in that Member State, into the official language or one of the official languages of the place where the request is to be carried out, or any other language that the requested Mem-

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de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 153. Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 466. Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 466. Report Pérez-Vera in Proceedings of the Fourteenth Session, III: Child abduction (1982), p. 426, 466. See on Art. 35 (1) of the Hague Child Protection Convention Staudinger/Pirrung (2018) note D 165.

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Art. 82 Brussels IIter Placement of a child in another Member State ber State expressly accepts. Member States shall communicate such acceptance to the Commission in accordance with Article 103. 5. The placement referred to in paragraph 1 shall only be ordered or arranged by the requesting Member State after the competent authority of the requested Member State has consented to the placement. 6. Except where exceptional circumstances make this impossible, the decision granting or refusing consent shall be transmitted to the requesting Central Authority no later than three months following the receipt of the request. 7. The procedure for obtaining consent shall be governed by the national law of the requested Member State. 8. This Article shall not preclude Central Authorities or competent authorities from entering into or maintaining existing agreements or arrangements with Central Authorities or competent authorities of one or more other Member States simplifying the consultation procedure for obtaining consent in their mutual relations. I. General Considerations . . . . . . . . . . . . .

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II. Scope of Application (Art. 82 (2)) . . . . . . .

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III. Consent Procedure . . . . . . . . . . . . 1. Request for Consent of the Competent Authority (Art. 82 (1), (7)) . . . . . . . . 2. Information on a Close Connection of a Child with a Member State (Art. 82 (3)) 3. Translations (Art. 82 (4)) . . . . . . . . .

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. . . 12 . . . 17

4. Refusal of Recognition in Absence of Prior Consent (Art. 82 (5)) . . . . . . . . . . . . . . . 18 5. Timing (Art. 82 (6)) . . . . . . . . . . . . . . . 20 6. Agreements or Arrangements on the Consultation Procedure (Art. 82 (8)) . . . . . . . . . . 21 IV. Information of and Assistance to Courts Applying Art. 82 . . . . . . . . . . . . . . . . . 22 V. Further Law Reform . . . . . . . . . . . . . . . 23

I. General Considerations 1

Art. 82 relates to transborder placements. The provision provides for a mandatory procedure of crossborder consent where a court or authority contemplates a measure of placement of a child which has to be put into place in another Member State. Generally spoken, a placement of a child abroad is considered when no other alternative placement could better meet the child’s specific needs, so that transborder placement of a child is necessary in the child’s best interests.1 In legal practice, this situation arises when neither parents nor other relatives are present in the state of habitual residence of the child, but relatives are present in another Member State, e.g. after the parents’ death,2 or when placement abroad must be ordered in order to avert a danger to the child,3 or when an institutional therapeutic measure is availabe in another Member State only,4 or even when a child continually expresses the wish and has the need to be close to a parent or another relative living abroad.5 At a first glance, Art. 82 seems to spell out procedural steps to be taken by courts and authorities only, and thus to exceed the scope of Central Authority cooperation in a strict sense,6 but nevertheless, the provision is rightly placed in Chapter V, at least as the Recast now creates a more active role of the Central Authorities as transmitting or forwarding agencies in placement proceedings.

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Art. 82 was drafted on the model of Art. 56 Brussels IIbis Regulation, but brings about some major changes. The provision establishes “more streamlined procedures”7 in the field of cross-border place1 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 432 para. 28 note Pirrung 404. 2 Krah, Das Haager Kinderschutzübereinkommen (2004), p. 279; Rieck, EG-EhesachenVO (2012), VO (EG) 2201/2003 note 4; see also Response of Germany to the Questionnaire Concerning the Practical Operation of the 1996 Convention, p. 5, available at https://assets.hcch.net/docs/bad81b31-fedc-4522-870d-825450dd7fca.pdf (last visited 4 March 2022). 3 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 1. 4 Dutta, ZEuP 2016, 427, 455. 5 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 432 para. 28 note Pirrung 404. 6 See on Art. 56 Brussels IIbis Regulation Althammer/Großerichter, Art. 56 Brussels IIa note 1; Frohn/Sumner, NIPR 2020, 391, 411.

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ment of a child, and introduces an autonomous and uniform consent procedure.8 The cross-border placement of children was an important point of concern of the Recast.9 The procedure under Art. 56 Brussels IIbis Regulation, the direct predecessor to Art. 82, was commonly considered as “cumbersome, if not clumsy”10 or even “as one of the weakest points for the smooth functioning of the crossborder placement of children.”11 The provision’s scope was said to be unclear12 and the “consecutive duties of information and cooperation (…) time consuming and not easy to follow”.13 Many crossborder placements were observed to have been put into place without paying attention to Art. 56 Brussels IIbis Regulation at all.14 This seems to have been particularly true in cases involving Germany. German authorities were observed to use the consultation procedure only after the placement of the child had been done already.15 This is why the Report on the Application of the Brussels IIbis Regulation of 2014 recommended “a common, uniform procedure that enables a swifter and more efficient application of the provisions on the placement of a child in another Member State.”16 As Art. 56 Brussels IIbis Regulation before,17 Art. 82 can be traced back to the mechanism set forth in Art. 33 of the Hague Child Protection Convention of 1996.18 In the same spirit of shared responsibility of several States for a measure to be taken, Art. 17 of the Hague Adoption Convention of 1993 provides for a procedure of obligatory consultation in respect of intercountry adoption.19 What is more, Art. 82 is closely related to Art. 33 of the Hague Protection of Adults Convention of 2000,20 dealing with the placement of an adult in an establishment or other place where protection can be provided, if such placement is to take place in another Contracting State.

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II. Scope of Application (Art. 82 (2)) Art. 82 applies to the placement of a child “in another Member State”, which is why in turn (argu- 4 mentum e contrario) a placement of a child in a Third State (including Denmark21) cannot be covered

7 Fucik, (2016) IFL 169, 173. 8 COM (2016) 411 final, p. 14; see also Garber in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 145; Schlauß, JAmt 2019, 494, 496; Schlauß, ZKJ 2019, 255, 260; Schlauß, ZKJ 2022, 206, 209; Brosch, GPR 2020, 179, 188 et seq.; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 146. 9 Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016); available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/IPOL_ STU(2016)556945_EN.pdf (last visited 4 February 2022). 10 Fucik, (2016) IFL 169, 173. 11 Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 70, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/IPOL_ STU(2016)556945_EN.pdf (last visited 4 February 2022); see also M.-P. Weller, IPRax 2017, 222, 228; de Sousa Gonçalves in Portela (dir.), Os novos horizontes do constitucionalismo global (2017), p. 389 et seq.; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 146 et seq.; Flindt, NZFam 2022, 669, 681. 12 Frohn/Sumner, NIPR 2020, 391, 411. 13 Fucik, (2016) IFL 169, 173. 14 COM (2016) 411 final, p. 4; see also Fucik, (2016) IFL 169, 173; Schlauß, ZKJ 2019, 255, 260; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 146, 148; Schlauß/Fucik in Garber/Lugani, note 16/122; see also Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 202. 15 González Beilfuss in Liber Amicorum in Honour of Wolfgang Heusel (2021), 349, 353. 16 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 16; see Mansel/Thorn/R. Wagner, IPRax 2015, 1, 9; M.-P. Weller, IPRax 2017, 222, 228; see also (from a Swedish perspective) Ökad rättssäkerhet och snabbare verkställighet i internationella familjemål, Ds 2020:18, p. 133 et seq. 17 See Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 9; Althammer/Großerichter, Art. 56 Brussels IIa note 1. 18 See on Art. 33 of the Hague Child Protection Convention of 1996 comprehensively Krah, Das Haager Kinderschutzübereinkommen (2004), p. 279 f. 19 Krah, Das Haager Kinderschutzübereinkommen (2004), p. 280. 20 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 10. 21 Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Stärkung von Kindern und Jugendlichen, (Kinder- und Jugendstärkungsgesetz – KJSG), BT-Drucks 19/26107, p. 92.

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Art. 82 Brussels IIter Placement of a child in another Member State by Art. 82.22 If the receiving (Third) State is a Contracting State of the Hague Child Protection Convention, Art. 33 of the Convention applies.23 But Art. 82 covers scenarios involving three Member States, i.e. cases where an authority seated in Member State A ist entitled to care for a child habitually resident in Member State B, but contemplates a placement of the child in Member State C.24 In those cases, consent to placement must be sought from and given by Member State C.25 5

Art. 82 mentions explicitly “a court or a competent authority” contemplating the transborder placement, so the provision does not apply to a placement contemplated or put into place by the holders of parental responsibility without any court or authority being involved.26 Unlike Art. 56 (1) Brussels IIbis Regulation, which explicitly mentioned and distinguished between “the placement of a child in institutional care or with a foster family”,27 Art. 82 (1) neither defines the notion of “placement” expressly, nor distinguishes between different types of placements at all,28 but prescribes a uniform procedure covering all kinds of placement.29 Under Art. 82, the term “placement” should be interpreted autonomously30 and given a broad meaning.31 The concept of “placement” covers all measures taken, irrespective of a voluntary act of the child,32 seeking to relocate the child, i.e. to establish a habitual residence of the child in another Member State.33 Thus, Art. 82 also applies when a child welfare authority arranges, in consultation with the holders of parental responsibility, for the relocation of a child across borders.34 Due to the broad meaning of “placement”, Art. 82 also covers the situation of a child living with a foster family already, but moving with this family to another Member State.35 In parallel with Art. 33 (1) of the Hague Child Protection Convention, Art. 82 applies also, at least by way of analogy, to care by kafala (Art. 20 (3) of the UN Convention on the Rights of the Child (UNCRC36))37 or by an analogous institution, provided that a court of a Member State con22 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 7; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 6; see implicitly Wicke/Reinhardt, JAmt 2007, 453, 457; see also on the scope of application of Art. 33 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 593: “where such placement or provision of care is to take place in another Contracting State” (emphasis added). 23 Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Stärkung von Kindern und Jugendlichen, (Kinder- und Jugendstärkungsgesetz – KJSG), BT-Drucks 19/26107, p. 92. 24 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 29. 25 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 29. 26 Staudinger/Pirrung (2018) note C 198; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 17. 27 See on the former differences between placement in institutional care (consultation pursuant to Art. 56 (1)(3)) and placement with a foster family (information pursuant to Art. 56 (4) if public authority intervention is not required, otherwise consultation pursuant to Art. 56 (1)-(3)) Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO notes 18–20; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 10–11; Althammer/Großerichter, Art. 56 Brussels IIa notes 2–5. 28 Erroneously to the contrary Lortie, NIPR 2021, 670, 691. 29 Althammer/Großerichter, Art. 56 Brussels IIa note 5; Frohn/Sumner, NIPR 2020, 391, 411. 30 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 12; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 3. 31 MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO note 2; Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459; A. Schulz, FamRZ 2020, 1141, 1149 (fn. 9). 32 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 16; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 9; A. Schulz, FamRZ 2020, 1141, 1149. 33 Wicke/Reinhardt, JAmt 2007, 453, 456; Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 15. 34 A. Schulz, FamRZ 2020, 1141, 1149. 35 Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion SN_2020_0589 Boe (7 July 2020), JAmt 2020, 641 (with a tendency to seek the consent of the receiving State in such a case). 36 Convention on the Rights of the Child, November 20, 1989, 1577 UNTS 3. 37 Art. 20 UNCRC reads as follows: “(1) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. (2) States Parties shall in accordance with their national laws ensure alternative care for such a child. (3) Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.

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templates to arrange for such a measure of care to be taken in another Member State on the basis of the applicable law.38 Under Art. 82, the notion of “placement” also includes measures taken to seek accommodation for a child associated with deprivation of liberty,39 because any other result would conflict with the principle of equality for all children,40 which the Regulation intends to warrant for.41 Accordingly, Recital (11) cl. 1 settles that the Brussels IIter Regulation, including Art. 82, applies to “(a)ny type of placement of a child in foster care, that is, according to national law and procedure, with one or more individuals, or institutional care, for example in an orphanage or a children’s home, in another Member State”. Such institutional care also comprises placement in a secure care institution, to which Art. 82 applies, in order to secure “the benefit of the Regulation (…) to the particularly vulnerable children who need such a placement”.42 As Recital (11) cl. 2 indicates, also “‘educational placements’ ordered by a court or arranged by a competent authority with the agreement of the parents or the child or upon their request following deviant behaviour of the child should be included”.43 For instance, from a German point of view, educational assistance (Hilfe zur Erziehung, secs. 27–40 SGB VIII) can occasionally be rendered abroad (sec. 38 SGB VIII44), so that Art. 82 must be observed45 if a placement in another Member State takes place in the course of such assistance.46 Art. 82 applies neither to a short stay abroad (e.g. holidays, experiential education programmes47 on 6 a temporary basis)48 nor to a case in which an authority orders the return of the child who has been removed in breach of custody rights, because a return order does not aim at a “placement”.49 According to Art. 1 (4), measures preparatory to adoption (Art. 1 (4) (b)) and measures taken as a result of criminal law offences committed by a child (Art. 1 (4) (d)) are excluded from the meaning of “placement” under Art. 82.50 The latter is illustrated by Recital (11) cl. 3, according to which any educational or punitive placement is excluded if it follows “an act of the child which, if committed by an adult, could amount to a punishable act under national criminal law, regardless of whether in the particular case this could lead to a conviction.”

38 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 22. See on the possibility of a Member State Court to make use of kafala Rauscher/Rauscher, Art. 1 Brüssel IIa-VO note 32. 39 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 435 para. 64 note Pirrung 404; see Kroll-Ludwigs, GPR 2013, 46, 47; see also MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO note 2 with reference to sec. 1631b of the German Civil Code. 40 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 435 para. 64 note Pirrung 404; Kroll-Ludwigs, GPR 2013, 46, 47. 41 C., (Case C-435/06), IPRax 2008, 509, 512 para 47 note Gruber 490; Kroll-Ludwigs, GPR 2013, 46, 47. 42 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 435 para. 64 note Pirrung 404. 43 Emphasis in the original; see also Schlauß, ZKJ 2019, 255, 260; Schlauß, ZKJ 2022, 206, 209; Schlauß/Fucik in Garber/Lugani, note 16/127. 44 Sec. 38 SGB VIII as introduced by Art. 1 no 30 Gesetz zur Stärkung von Kindern und Jugendlichen (Kinderund Jugendstärkungsgesetz – KJSG) of 3 June 2021, BGBl. 2021 I 1444; version applicable from 10.6.2021. 45 This is demanded explicitly by sec. 38 (1) no 1, (5) no 4a SGB VIII. 46 See in detail Eschelbach/Rölke, JAmt 2014, 494; Wendelin, ZKJ 2019, 338, 339 et seq.; Gallep/Rölke, NDV 2020, 103 et seq., J. Beckmann/Lohse, JAmt 2021, 178 et seq.; BeckOK Sozialrecht/J. Winkler, § 38 SGB VIII note 5 (1.12.2021); Schlauß, ZKJ 2022, 206, 209; Schlauß/Fucik in Garber/Lugani, notes 16/142-16/148; see also Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion SN_2020_0090 Bn (25 February 2020), JAmt 2020, 446; Deutsches Institut für Jugendhilfe und Familienrecht e. V. (DIJuF), Opinion SN_2020_0589 Boe (7 July 2020), JAmt 2020, 641 and Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Stärkung von Kindern und Jugendlichen (Kinder- und Jugendstärkungsgesetz – KJSG), BT-Drucks 19/26107, p. 92 et seq. 47 Contra Erb-Klünemann/Niethammer-Jürgens, FamRB 2019, 454, 459. 48 Wicke/Reinhardt, JAmt 2007, 453, 456; Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 15; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 9. 49 VG Augsburg BeckRS 2015, 47315; see MünchKommBGB/Heiderhoff, Art. 54 Brüssel IIa-VO note 2. 50 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 6 and note 21; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 4.

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Art. 82 Brussels IIter Placement of a child in another Member State 7

As Art. 82 (2) makes clear, the consent procedure does not at all apply to placements with a parent,51 and does not necessarily apply to placements with other close relatives, as the Member States are free to declare that their consent pursuant to Art. 82 (1) is not required for placements within their own territory with certain categories of close relatives in addition to parents. The Member States may decide autonomously whether or not placement with close relatives shall be subject to consent, and define the categories of close relatives to which the consent procedure does not apply.52 The Member States are not obliged to provide for such exceptions to the consent procedure at all. But the Member States may not independently define other exceptions to the uniform consent procedure which do not relate to placements with relatives.53 The wording of Art. 82 (2) makes clear that the only issue on which the Member States may decide freely is the question as to which placements with close relatives (if any) do not demand consent when placement within their territory is contemplated. Pursuant to Art. 103, the Member States shall communicate to the Commission the categories of close relatives to which the consent procedure does not apply.

III. Consent Procedure 1. Request for Consent of the Competent Authority (Art. 82 (1), (7)) 8

Art. 56 (1) Brussels IIbis Regulation obliged the court concerned to merely “consult” the receiving Member State, whereas Art. 82 (1) now demands to “obtain the consent of the competent authority in that other Member State”, and to issue and transmit a request for such consent via the Central Authorities. The provision was re-edited in order to codify the case-law of the ECJ. In 2012, the ECJ held that the consent of the requested State to a placement of a child in another Member State (Art. 56 (2) Brussels IIbis Regulation) must be given prior to the making of the judgment on the placement, and that such prior consent must by given by an authority governed by public law, whereas consent given by the institution where the child is to be placed does not suffice.54 Legal certainty with respect to the placement of children is not ensured sufficiently by a mere consultation, but asks for a mandatory consent procedure, which Art. 82 (1) now introduces.55 What is more, the newly introduced consent requirement also safeguards legitimate interests of the Member States, as Member States do not wish to have children placed in their territory or virtually imposed upon them without prior consent to the placement, to the legal conditions of the placement (including conditions defined by immigration law), and especially to its costs.56 Unlike under Art. 56 (1)Brussels IIbis Regulation, but in parallel with Art. 33 (1) of the Hague Child Protection Convention,57 under Art. 82 (1) the consent requirement no longer depends on the law of the receiving State. Art. 56 (1) Brussels IIbis Regulation demanded consultation only when the law of the receiving State provided for public authority intervention in comparable domestic cases (“where public authority intervention in that Member State is required for domestic cases of child placement”). As the Recast intends to strengthen and to formalize the consent procedure, no such reference to national law is contained in Art. 82 (1) any more, so that the consultation requirement as such is now an entirely autonomous one.58 Nevertheless, the procedure for obtaining consent in the receiving State remains to be governed by the national law of the receiving Member State only. This follows from Art. 82 (7),59 but can also be derived

51 Mansel/Thorn/R. Wagner, IPRax 2020, 97, 103; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196; see also Lortie, NIPR 2021, 670, 691: “should go without saying”. 52 Schlauß, JAmt 2019, 494, 496; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 53 Erroneously to the contrary Lortie, NIPR 2021, 670, 691. 54 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 437 para 95 note Pirrung 404. 55 COM (2016) 411 final, p. 14; see also Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 195 et seq. 56 Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 4; Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 1; see also Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 33 KSÜ note 4. 57 Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 33 KSÜ note 3. 58 Mansel/Thorn/R. Wagner, IPRax 2020, 97, 103; Schlauß/Fucik in Garber/Lugani, note 16/124; see also Schlauß, ZKJ 2022, 206, 209, pointing to the fact that Art. 82 (1) does not introduce an entitlement to consent. 59 See on the predecessor of Art. 82 (7), Art. 56 (3) Brussels IIbis Regulation, Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 paras 78, 87 note Pirrung 404.

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from the Member States’ competence in the field of procedural law, with which the Brussels IIter Regulation does not interfere.60 Under Art. 56 (1) Brussels IIbis Regulation, the court could either turn directly to the Central Author- 9 ity or to any other competent authority of the receiving State.61 Now Art. 82 (1) newly establishes “CA to CA”62 (Central Authority to Central Authority) communication, as the request for consent is to be transmitted mandatorily by the Central Authority of the forum State to the Central Authority of the receiving State. Such “chanelling (of) all requests through Central Authorities”63 has proved its worth in legal practice,64 so that Art. 82 (1) strengthens the position of Central Authorities in and their responsibility for the cross-border consent procedure considerably.65 Art. 82 (1) introduces “uniform requirements for documents to be submitted with the request for 10 consent”.66 According to Art. 82 (1), the request for consent must be accompanied by a report on the child which must set out the reasons for the proposed placement or provision of care, give information on any contemplated funding, and provide any other information which the Central Authority considers relevant, such as the expected duration of the placement. Art. 82 (1) particularly demands to indicate the duration of the placement because the ECJ held that a judgment on placement as well as the consent to placement given by the receiving State is valid only for the period which the judgment or the act of consent refers to, so that a new request for consent must be made if the duration of the placement shall be extended.67 Further, Recital (83) cl. 6 elaborates on relevant information which is to be given in a request for consent,68 mentioning “any envisaged supervision of the measure, arrangements for contact with the parents, other relatives or other persons with whom the child has a close relationship, or the reasons why such contact is not contemplated in light of Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Pursuant to Art. 82 (7), the procedure to obtain consent within the requested Member State remains 11 to be governed by the national law of that State (supra Art. 82 note 8 [Knöfel]). Hence, the Member States are free to define legal requirements to be observed before such consent is given. For instance, Germany has done so by virtue of some newly fashioned provisions (secs. 45–47 IntFamRVG69). Pursuant to sec. 45 IntFamRVG, “for the grant of consent to placement of a child pursuant to Art. 82 of Regulation (EU) No. 1111/2019 or to Art. 33 of the Hague Child Protection Convention in Germany, competence shall lie with the supra-local agency responsible for the public youth welfare service in the area where, as proposed by the requesting agency, the child is to be placed, or otherwise with the supra-local agency with whose area the Central Authority has found the closest link. Alternatively, competence shall lie with the Land of Berlin.”70 Under sec. 46 IntFamRVG, “consent to the request

60 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 61 Rauscher/Rauscher, Art. 56 Brüssel IIa-VO note 1; Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 28. 62 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 190. 63 COM (2016) 411 final, p. 14. 64 Schlauß, JAmt 2019, 494, 496. 65 Schlauß, ZKJ 2019, 255, 260; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147; Schlauß/Fucik in Garber/Lugani, note 16/135. 66 COM (2016) 411 final, p. 14. 67 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 440 para 146 note Pirrung 404; see also Recital (83) cl. 7–8; Magnus/Mankowski/De Lima Pinheiro, Art. 56 Brussels IIbis Regulation note 6. 68 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 69 IntFamRVG as amended by Art. 1 No 33–34 Gesetz zur Durchführung der Verordnung (EU) 2019/1111 über die Zuständigkeit, die Anerkennung und Vollstreckung von Entscheidungen in Ehesachen und in Verfahren betreffend die elterliche Verantwortung und über internationale Kindesentführungen sowie zur Änderung sonstiger Vorschriften of 10 August 2021, BGBl. 2021 I 3424. See also in Swedish law Sec. 13 Lag med kompletterande bestämmelser till Bryssel II-förordningen (16 June 2022), SFS 2022:959 (23 June 2022), requiring consent of a local authority (socialnämden) to a placement under Art. 82. 70 See the translation of sec. 45 provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_in tfamrvg.pdf (last visited 23 March 2022).

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Art. 82 Brussels IIter Placement of a child in another Member State should as a rule be granted”(171), if a number of prerequistes is met,72 whereas the request shall be refused in the case of a placement associated with deprivation of liberty (2), provided that the placement has not been ordered by a court (no. 1) or that such a placement would not be compatible with national law (no. 2).73 The supra-local agency responsible for the public youth welfare service must seek the approval of the Family Court, jurisdiction for which lies with the Family Court at the seat of the Higher Regional Court (Oberlandesgericht) in whose area of jurisdiction the child is to be placed.74 2. Information on a Close Connection of a Child with a Member State (Art. 82 (3)) 12

Art. 82 (3) is new to the Brussels regime, allowing the Central Authority of a Member State to “inform a court or competent authority which contemplates a placement of a child of a close connection of the child with that Member State.” The provision obviously intends to widen the spectre of facts to be considered when deciding upon the placement of a child. As Recital (84) cl. 1 indicates, Art. 82 (3) shall enable the court to take appropriate measures to ensure respect of the rights of the child, i.e. the right of the child to preserve his or her identity and to maintain contact with parents or other relatives, arising from Arts. 8, 9 and 20 UNCRC, and raise awareness of relevant facts by information provided by the Central Authority of another Member State (Recital (84) cl. 3).

13

Art. 82 (3) is subject to criticism, as the provision seems to interfere with the principle of habitual residence as a dominating factor under the Brussels IIter Regulation.75 The Central Authority of an interested Member State may point out a “close” connection of the child with the respective Member State. The concept of a “close” connection of a child with a Member State seems to be in line with the concepts of a “substantial” connection under Art. 10 (1) (a) (choice of court) and of a “particular” connection under Art. 12 (4) (transfer of jurisdiction).76 But in legal practice, a “close” connection boils down to the nationality of the child which the Central Authority may indicate.77 This remarkable shift of focus from habitual residence to nationality is indeed hardly compatible with the overall structure of the Brussels IIter Regulation.78

14

An interested Member State is by no means allowed to interfere with family law procedures pending in another Member State,79 as the rights granted under Art. 82 (3) cl. 1 “shall not affect the national law and procedure of the Member State contemplating the placement” (Art. 82 (3) cl. 2). 71 Sec. 46 (1) IntFamRVG reads as follows (see the translation of sec. 46 (1) provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet. de/englisch_intfamrvg/englisch_intfamrvg.pdf (last visited 23 March 2022): “Consent to the request should as a rule be granted where 1. carrying out the intended placement in Germany is in the best interests of the child, in particular because he or she has a particular connection with the country, 2. the foreign agency has submitted a report and, to the extent necessary, medical certificates or reports setting out the reasons for the intended placement, 3. the child has been heard in the proceedings abroad, unless this appeared inappropriate on the ground of the child’s age or degree of maturity, 4. the consent of the appropriate institution or foster family has been given and there are no reasons telling against such placement, 5. any approval required by the law governing aliens has been given or promised, 6. the issue of assumption of costs has been dealt with.” 72 See in detail Wicke/Reinhardt, JAmt 2007, 453, 456; U. Schwarz, JAmt 2011, 438, 442; Heiderhoff in Dutta/Jacoby/D. Schwab (eds.), FamFG, 4th ed. 2022, § 46 IntFamRVG note 2; Schlauß/Fucik in Garber/Lugani, note 16/150. 73 See the translation of sec. 46 (2) provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_in tfamrvg.pdf (last visited 23 March 2022); see also Schlauß/Fucik in Garber/Lugani, note 16/151. 74 See the translation of sec. 47 provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_in tfamrvg.pdf (last visited 23 March 2022). Sec. 47 was amended in 2021 without material changes, see supra fn. 69. 75 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. But see for a positive evaluation of Art. 82 (3) Schlauß, ZKJ 2022, 206, 210; Schlauß/Fucik in Garber/Lugani, note 16/141. 76 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 77 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 78 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 79 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196 (fn. 63).

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After the Central Authority of a Member State has sucessfully transmitted information on a close connection pursuant to Art. 82 (3), the court’s measures to ensure respect of the rights of the child may include a notification to the consular body of the Member State with which the child has a close connection, at least if Art. 37 (b) of the Vienna Convention on Consular Relations80 applies (Recital (84) cl. 2). But there is nothing in Art. 82 (3) or in Recital (84) that confers consular functions upon the Central Authorities,81 so that Art. 82 (3) saddles the Central Authorities with an additional workload only insofar as the Authorities may transmit information on a close connection, but does not compel them to “perform a sort of consular role”82 themselves.

15

Information on a close connection of a child given by a Member State pursuant to Art. 82 (3) must not delay placement proceedings.83

16

3. Translations (Art. 82 (4)) It was doubtful whether Art. 56 Brussels IIbis Regulation demanded a translation of documents sub- 17 mitted to obtain consent to a placement.84 The question is now beyond doubt,85 as Art. 82 (4) is a direct equivalent of Art. 80 (3) and of Art. 81 (2), requiring the request for consent under Art. 82 (1) and any additional documents to be translated into the official language of the requested State (supra Art. 80 note 10 [Knöfel] and Art. 81 note 8 [Knöfel]).86 The Member States can accept any other language, which they have to notify to the Commission (Art. 103). In legal practice, the translation requirement will prove its worth and come in handy.87 4. Refusal of Recognition in Absence of Prior Consent (Art. 82 (5)) Art. 82 (5) is a direct equivalent of Art. 33 (2) of the Hague Child Protection Convention. The provi- 18 sion “avoids placing the State, in which the measure of placement is to be carried out, before a fait accompli”88 by making clear that a placement shall only be ordered or arranged by the requesting Member State after the competent authority of the requested Member State has consented.89 If prior 80 Art. 37 (b) of the Vienna Convention on Consular Relations (April 24, 1963, 596 UNTS 261) reads as follows: “Art. 37 Information in cases of deaths, guardianship or trusteeship, wrecks and air accidents. If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: (…) (b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments; (…)”. 81 See Bergquist/Fayad/Hovmöller, Bryssel II ter-förordningen, Rom III-förordningen, internationella äktenskapslagen och nordiska äktenskapsförordningen (2021), p. 203, describing Art. 82 (3) as a mere possibility (as opposed to a consular duty) to convey information on a close connection. To the contrary Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196: “As the reference to the Vienna Convention in Recital 84 underlines, this may result in a whole new workload for Central Authorities, which are to some extent explicitly asked henceforth to perform a sort of consular role.” 82 Contra Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 83 Mansel/Thorn/R. Wagner, IPRax 2020, 97, 104. 84 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 85 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147; Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 86 COM (2016) 411 final, p. 14. 87 Illustratively A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 406: “Other Central Authorities just transmit the request by a cover letter which says no more than ‘Please find attached a request under Article X of the Brussels IIa Regulation’ and attach the untranslated original request – which then obviously leaves the receiving Central Authority somewhat helpless” (emphasis in the original). 88 See on Art. 23 (2) (f) of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 587; see also de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 89 See on Art. 56 (2) Brussels IIbis Regulation Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 80 note Pirrung 404.

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Art. 82 Brussels IIter Placement of a child in another Member State consent is not given, perhaps not even sought, the decision on placement remains valid as such,90 but “failure to follow this procedure for consultation in advance is sanctioned by refusal or recognition of the placement measure”91 (Art. 39 (1) (f)).92 Further, Art. 82 (5) enables the authorities of the State of placement to monitor the situation of the child properly,93 which serves the child’s best interests, as the child’s situation is taken into account by the authority that is “closest to the child and to the social environment in which he/she will live and can intervene in its defence more quickly, if necessary.”94 19

The ECJ held in 2012 that under the Brussels IIbis Regulation, a judgment ordering a placement abroad must, before its enforcement in the requested Member State, be declared enforceable in that Member State.95 Obviously, this is obsolete under the Brussels IIter Regulation, because pursuant to Art. 34, any decision in a matter of parental responsibility given in a Member State which is enforceable in that Member State is enforceable in another Member State without prior declaration of enforceability. This also applies to placement orders, which is to be approved of, as “the application of the exequatur procedure to placement decisions has been reported by experts to be very cumbersome in view of the child’s needs”.96 5. Timing (Art. 82 (6))

20

Under the Brussels IIbis Regulation, a “dragging of the consent”97 was observed quite often, with the consequence that children to be placed abroad were sent “to the receiving State while the consultation procedure (was) still pending or even at the moment it (was) initiated”,98 particulary when the court or authority involved considered “the placement as urgent and (was) aware of the length of proceedings”.99 Hence, expeditious action is vital to proceedings on the placement of a child.100 Acceptance of this is now shown in Art. 82 (6), an equivalent of Art. 80 (4). The provision obliges the Central Authority of the receiving State to transmit the decision granting or refusing consent no later than three months101 following the receipt of the request. Neither Art. 33 of the Hague Child Protection Convention nor Art. 56 Brussels IIbis Regulation provide for such a time limit,102 so that Art. 82 (6)

90 Gitschthaler/Prisching, Art. 56 Brüssel IIa-VO note 14; contra Fasching/Konecny/Pesendorfer, Art. 56 EuEheKindVO note 31: “unzulässig”. 91 See on Art. 33 of the Hague Child Protection Convention Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 593; see on Art. 56 Brussels IIbis Regulation Gitschthaler/ Prisching, Art. 56 Brüssel IIa-VO note 2. 92 See on Art. 23 (g) Brussels IIbis Regulation Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 436 para. 81 note Pirrung 404. The Commission Proposal of 2016 (Art. 38 (1), COM (2016) 411 final) intended to abolish this ground of non-recognition, which remained unclear, see Magnus/ Mankowski/De Lima Pinheiro, Art. 56 Brussels IIbis Regulation note 9. 93 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 147. 94 See on Art. 82 (6) de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 148. 95 Health Service Executive v. S. C., A. C., (Case C-92/12 PPU), IPRax 2013, 431, 439 et seq. para. 133 note Pirrung 404; see in detail Kroll-Ludwigs, GPR 2013, 46, 47 et seq. 96 Report on the Application of Council Regulation (EC) No 2201/2003, COM (2014), 225 final, p. 16 (emphasis in the original). 97 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 148. 98 COM (2016) 411 final, p. 4. 99 COM (2016) 411 final, p. 4. 100 Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 43, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/ IPOL_STU(2016)556945_EN.pdf (last visited 4 February 2022). 101 According to the Commission Proposal of 2016 (Art. 65 (4), COM (2016) 411 final), the timeframe was even narrower, as the decision granting or refusing consent was to be transmitted no later than two months following the receipt of the request; see Magnus/Mankowski/De Lima Pinheiro, Art. 56 Brussels IIbis Regulation note 9. Elsewhere, the Commission Proposal mentions “a time limit of eight weeks” (COM (2016) 411 final, p. 14), leaving it unclear whether “two months” (Art. 65 (4), COM (2016) 411 final) and “eight weeks” are considered as equivalents. 102 COM (2016) 411 final, p. 4.

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Chapter V: Cooperation in Matters of Parental Responsibility

Art. 82 Brussels IIter

clearly contains an innovation.103 Nevertheless, the three-month period is still considered as being too long.104 The mere absence of a reply within three months, i.e. silence from the Central Authority, does not constitute consent of the receiving State.105 As under Art. 80 (4), the time limit may be exceeded only if “exceptional cirumstances” make it impossible to comply with the request within three months (supra Art. 80 note 12 [Knöfel]). Paralleling scholarly discourse on Art. 80 (4) (supra Art. 80 note 11 [Knöfel]), concerns have been raised about the feasibility of the time limit established by Art. 82 (6),106 referring to the fact that Art. 82 (6) only addresses the Central Authorities, whereas in legal practice, requests for consent are administered by national authorities, the procedure of which is not unified at all, but entirely left to national law (Art. 82 (7), supra Art. 82 note 8 [Knöfel]).107 Hence, it is for national law and thus for the Member States to provide for a timeframe addressing national authorities.108 Recital (83) recommends that rules and procedures provided by the Member States for the purposes of consent should be drafted clearly (cl. 3) and “enable the competent authority to grant or refuse its consent promptly” (cl. 4), but is not binding. 6. Agreements or Arrangements on the Consultation Procedure (Art. 82 (8)) The Member States remain free to further simplify the consultation procedure for obtaining consent in their mutual relations beyond Art. 82. This is because Art. 82 (8) declares that the autonomous consent procedure does not hinder Central Authorities or competent authorities from entering into or maintaining existing agreements or arrangements on such further simplification with Central Authorities or competent authorities of one or more other Member States. Such an agreement or arrangement between Member States may provide that no consent at all is required for placements within the territory of the Member States concerned.109 The opening clause contained in Art. 82 (8) is regarded as a major novelty and even as a step towards minimum harmonisation.110

21

IV. Information of and Assistance to Courts Applying Art. 82 Pursuant to Art. 79 (f), the Central Authorities must provide such information and assistance as is 22 needed by courts to apply Art. 82,111 i.e. as is required to deal with requests for consent in the placement of the child in another Member State (supra Art. 79 note 13) [Knöfel].

V. Further Law Reform The European Parliament Legislative Resolution of 2018 proposed to amend Art. 82 by adding an ex- 23 plicit obligation of the Member States to “ensure that parents and relatives of the child, regardless of their place of residence, can have regular access, except where this would jeopardise the well-being of the child”,112 but did not succeed. Proposals to oblige the Central Authorities to “provide the necessary assistance in the periodical control of long-term cross-border placements”113 or to hold them re103 Schlauß, ZKJ 2019, 255, 260; Schlauß, ZKJ 2022, 206, 209; de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 148; Flindt, NZFam 2022, 669, 681. 104 de Sousa Gonçalves in FS Andreas Schwartze (2021), p. 133, 148. 105 Recital (83) cl. 5; see also Lortie, NIPR 2021, 670, 692; Schlauß, ZKJ 2022, 206, 209. Art. 33 of the Hague Child Protection Convention does not set forth a time limit, but it is understood that a Contracting State remaining silent does not agree to the placement, see Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 33 KSÜ note 5. 106 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 107 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 108 Zˇupan/Hoehn/Kluth, (2020/2021) 22 Yb. P.I.L. 183, 196. 109 Mansel/Thorn/R. Wagner, IPRax 2020, 97, 103 et seq. 110 Frohn/Sumner, NIPR 2020, 391, 412. 111 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 403. 112 Amendment 63 of the European Parliament Legislative Resolution of 18 January 2018 (P8_TA(2018)0017). 113 Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 61, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/

Knöfel

593

Art. 83 Brussels IIter Costs of Central Authorities sponsible for the creation and maintenance of a national register concerning children placed under Art. 82114 did not succeed, either.

Article 83 Costs of Central Authorities 1. The assistance provided by the Central Authorities pursuant to this Regulation shall be free of charge. 2. Each Central Authority shall bear its own costs in applying this Regulation. 1

(1) corresponds to Art. 57 (3) Brussels IIbis Regulation, whereas (2) is the equivalent of Art. 57 (4) Brussels IIbis Regulation. Today, many instruments of cross-border legal assistance follow the general principle that mutual claims for reimbursement of taxes or costs are partially or entirely excluded (e.g. Art. 12 of the Hague Service Convention,1 Art. 14 of the Hague Evidence Convention,2 Art. 26 of the Hague Child Abduction Convention,3 Art. 38 of the Hague Child Protection Convention4). Accordingly, under Art. 83, a Central Authority cannot seek reimbursement of costs of any nature for providing assistance to applicants (1). What is more, a Central Authority may not recover from another Central Authority any costs occasioned by the application of the Regulation (2).

2

The notions “free of charge” (1) and “costs” (2) bear an autonomous meaning independent from any respective notions contained in the national legal orders of the Member States.5 The material scope of application of (1) and (2) can be established by adopting the meaning already developed under Art. 38 of the Hague Child Protection Convention, thus covering “the fixed costs of the functioning of the authorities, the costs of correspondence and transmissions, of seeking out diverse information and of localising a child, of the organisation of mediation or settlement agreements, as well as the costs of implementation of the measures taken in another State, in particular placement measures.”6 To sum up, (1) and (2) mean that the Central Authority may not claim reimbursement of taxes or fees “for carrying out its functions”,7 and that “sums paid (…) to third parties in the course of proceedings”8 are not reimbursable, either.

3

It is submitted that notwithstanding Art. 83, applicants must bear, and are liable for, translation costs,9 at least insofar as the general provision of the Brussels IIter Regulation on languages (Art. 91) has not been complied with.10 In Germany,11 sec. 4 IntFamRVG reserves the right of the Central

114 1 2 3 4 5 6 7 8 9 10

594

IPOL_STU(2016)556945_EN.pdf (last visited 4 February 2022); see in detail Garber in König/Mayr (eds.), Europäisches Zivilverfahrensrecht in Österreich V (2018), p. 109, 145. Carpaneto, Study on the Cross-Border Placement of Children in the European Union (Committee on Legal Affairs) (2016), p. 63, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2016/556945/ IPOL_STU(2016)556945_EN.pdf (last visited 4 February 2022). McClean, p. 51. McClean, p. 99 et seq. Kruger, International Child Abduction (2011), p. 118. Rauscher/Hilbig-Lugani, 4th ed. 2016, Art. 38 KSÜ note 2; see also Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595. See on Art. 18 (today Art. 22) European Evidence Regulation Artur Weryn´ski v. Mediatel 4B spółka z o. o., (Case C-283/09), NJW 2011, 2493, 2495 para 58. Report Lagarde in Proceedings of the Eighteenth Session, II: Protection of Children (1998), p. 535, 595. See on Art. 18 (today Art. 22) European Evidence Regulation Artur Weryn´ski v. Mediatel 4B spółka z o. o., (Case C-283/09), NJW 2011, 2493, 2495 para 59. See on Art. 18 (today Art. 22) European Evidence Regulation Artur Weryn´ski v. Mediatel 4B spółka z o. o., (Case C-283/09), NJW 2011, 2493, 2495 para 59. MünchKommBGB/Heiderhoff, Art. 57 Brüssel IIa-VO note 5. Seemingly to the contrary (on Art. 26 of the Hague Abduction Convention) Kruger, International Child Abduction (2011), p. 118, submitting that translation costs form part of the “operational costs” which the Central Authority has to bear. Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U note 27; Staudinger/Pirrung (2018) note D 146.

Knöfel

Chapter VI: General Provisions

Art. 85 Brussels IIter

Authority to “refuse to take action so long as communications or documents that have to be enclosed are not drawn up in German or accompanied by a translation into German”,12 whereas sec. 5 IntFamRVG confers a duty of reimbursement on an applicant who does not himself procure translations in the case of outgoing applications.13

Article 84 Meetings of Central Authorities 1. In order to facilitate the application of this Regulation, Central Authorities shall meet regularly. 2. The meetings of Central Authorities shall be convened, in particular, by the Commission within the framework of the European Judicial Network in civil and commercial matters in compliance with Decision 2001/470/EC. The provision is explicit and suffices to itself. The importance of Central Authorities meeting regularly, with the purposes of sharing experiences and discussing possible solutions to practical problems arising under the Regulation, is self-evident. In the context of the EJN-civil, the Central Authorities of the Member Stats meet once a year.1 In addition to the annual multilateral meetings, there are bilateral meetings of Central Authorities dedicated to the discussion of issues which have arisen in bilateral cases, and facilitated by the Commission.2

1

Chapter VI General Provisions (Art. 85–Art. 91)

Article 85 Scope This Chapter shall apply to the processing of requests and applications under Chapters III to V. Following the practice of every European Procedural Regulation, Chapter VI of Brussels IIter con- 1 tains “General Provisions”. Art. 85 Brussels IIter stipulates that the rules contained in Chapter VI concern the processing of requests and applications under Chapters III to V. Chapter III refers to “International Child Abduction” (Arts. 22 to 29 Brussels IIter), Chapter IV to “Recognition and Enforcement” (Arts. 30 to 75 Brussels IIter) and Chapter V to “Cooperation in Matters of Parental Responsibility” (Art. 76 to 84 Brussels IIter). Nevertheless, Chapter VI contains rules referring to provisions of Chapter II as well (see e.g. Art. 86 para 2 a Brussels IIter). As a general rule, “requests pursuant to Brussels IIter Regulation concerning cooperation in matters of parental responsibility are to be made by courts and competent authorities and should be sub11 See in detail Hausmann, Internationales und Europäisches Familienrecht, 2nd ed. 2018, U notes 305–308. 12 See the translation of sec. 4 IntFamRVG provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_in tfamrvg.pdf (last visited 23 March 2022). 13 See the translation of sec. 5 IntFamRVG provided by Brian Duffett on behalf of the Federal Ministry of Justice and the Federal Office of Justice, available at https://www.gesetze-im-internet.de/englisch_intfamrvg/englisch_in tfamrvg.pdf (last visited 23 March 2022). 1 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 409. 2 A. Schulz in Viarengo/Villata (eds.), Planning the Future of Cross-Border Families (2020), p. 399, 410.

Knöfel and Stamatiadis/Tsantinis

595

2

Art. 86 Brussels IIter Cooperation and communication between courts mitted to the Central Authority of the Member State of the requesting court or competent authority”1. By contrast, Art. 86 Brussels IIter contains rules on the direct and informal communication and cooperation between courts. 3

Arts. 87, 88 and 89 Brussels IIter set out the general provisions on collecting and transmitting of information in accordance with Regulation (EU) 2016/679 (GRPR).

4

Art. 90 facilitates the free circulation of documents in the frame of the Regulation and Art. 91 Brussels IIter provides the legal frame for the translations needed and the languages accepted.

Article 86 Cooperation and communication between courts 1. For the purposes of this Regulation, the courts may cooperate and communicate directly with, or request information directly from, each other provided that such communication respects the procedural rights of the parties to the proceedings and the confidentiality of information. 2. The cooperation referred to in paragraph 1 may be implemented by any means that the court considers appropriate. It may, in particular, concern: (a) communication for the purposes of Articles 12 and 13; (b) information in accordance with Article 15; (c) information on pending proceedings for the purposes of Article 20; (d) communication for the purposes of Chapters III to V.

I. Introductory remark 1

More than any other procedural Regulation, the implementation of the Brussels IIter Regulation depends on the communication and cooperation between the courts of the member states. Paras. 1 and 2 of Art. 86 Brussels IIter could (and should) be read combined as follows: “For the purposes of this Regulation, the courts may cooperate and communicate directly with, or request information directly from, each other by any means that the court considers appropriate, provided that such communication respects the procedural rights of the parties to the proceedings and the confidentiality of information”.

II. Direct and Informal communication between the courts 2

The communication between the courts is direct and no national authority is interfering1.

3

If any procedural law system can be broken down to rules concerning “forms, delays and evidence”, the rule stipulated in paras 1 and especially 2 (“by any means”) of Art. 86 Brussels IIter seems to break with any conception of form. The courts are allowed to choose the means of communication they consider appropriate: e-mail, fax, post or even telephone are acceptable means. The only condition stipulated is “that such communication (per se) respects the procedural rights of the parties to the proceedings and the confidentiality of information”. Art. 86 Brussels IIter provides no further explanation or indication on how a communication (e.g. a request according to Art. 12.1.b. Brussels IIter to a court of another Member State so that the latter assumes jurisdiction) should respect the procedural rights of the parties or the confidentiality of information2.

1 Recital Nr. 75. 1 See, by contrast, Recital Nr. 75. 2 In the example of Art. 12.1, this respect refers primarily to the procedural stage before the staying of the proceedings.

596

Stamatiadis/Tsantinis

Chapter VI: General Provisions

Art. 87 Brussels IIter

The cooperation between the courts may be informal as ascertained in the second paragraph. Thus, an informal communication shall not per se be deemed to be disrespecting neither the procedural rights of the parties to the proceedings nor the confidentiality of information. Certain procedural acts of the courts though, especially those moving forward the proceedings could only be formal3.

4

III. Indicative cases As explicitly referred to in Art. 86.2. Brussels IIter the communication may pertain to the purposes of Arts. 12 and 13 Brussels IIter.

5

According to Art. 12.1.b. Brussels IIter a court of a Member State having jurisdiction as to the substance of the matter in cases concerning parental responsibility, if it considers that a court of another Member State (with which the child has a particular connection) would be a forum conveniens4 for the best interests of the child may upon staying of the proceedings request this latter court to assume jurisdiction. This request consists a procedural act of the court and may be direct, but obviously5 not informal. The same can be said on the act of the court requested to inform (without delay) the court first seized on its response (acceptance or rejection) to the request (Art. 12.2. Brussels IIter, last para).

6

Art. 13 Brussels IIter provides for a similar request and information in the reverse case, namely if a court of a Member State not having jurisdiction requests for transfer of jurisdiction. Both request and information could be communicated directly but not informally.

7

Art. 15 Brussels IIter stipulates that in case a court of a Member State, other that the court having jurisdiction as to the substance of the matter, takes provisional measures it shall, without delay, inform the court or competent authority having jurisdiction. Art. 15.2 Brussels IIter explicitly stipulates that this can be implemented either directly (and obviously formally) in accordance with Art. 86 Brussels IIter or through the Central Authorities designated pursuant to Art. 76 Brussels IIter.

8

The direct communication between courts may also pertain to information concerning lis pendens and dependent actions in another member state (Art. 20 Brussels IIter). According to Art. 20 Brussels IIter, the court second seised shall of its own motion either stay its proceedings or decline jurisdiction, depending on the facts of the specific case. This does not mean that the court second seised will informally request any other court of any other Member State whether there is already a lis pendens. But if a party alleges the lis pendens, then the court second seised can directly and even informally communicate with the court first seised and request information (e.g. on the scope of the object of the process brought before the first court).

9

Article 87 Collection and transmission of information 1. The requested Central Authority shall transmit any application, request or the information contained therein in matters of parental responsibility or international child abduction, as appropriate, pursuant to this Regulation to the court, competent authority within its Member State or any intermediary as appropriate under national law and procedure. 2. Any intermediary, court or competent authority to which the information referred to in paragraph 1 has been transmitted under this Regulation may only use it for the purposes of this Regulation. 3. The intermediary, court or competent authority which holds or is competent to collect, within the requested State, information required to carry out a request or an application pursuant to

3 Examples infra Art. 86 notes 5 et. seq. (Stamatiadis/Tsantinis). 4 The term is here applied in a broader sense and not necessarily as the terminus technicus of the common law. 5 Considering for instance the possibility for the party concerned to attack both the order for staying the proceedings and the request to the court of the other Member State.

Stamatiadis/Tsantinis

597

Art. 88 Brussels IIter Notification of the data subject this Regulation, shall provide that information to the requested Central Authority at its request in cases where the requested Central Authority does not have direct access to the information. 4. The requested Central Authority shall, as necessary, transmit the information obtained pursuant to this Article to the requesting Central Authority in accordance with national law and procedure. 1

The implementation of the Brussels IIter Regulation requires that the Central Authorities cooperate with the courts, other authorities, and intermediaries in order to transmit applications, requests1 and any relevant information. In this frame it is imperative to set safeguards concerning the transmission2 particularly safeguards pertaining to data protection.

2

Art. 55 Brussels IIbis Regulation ruled that the Central Authorities exchange information in matters of parental responsibility (namely on the situation of the child, on any procedures under way, or on decisions taken concerning the child) in accordance with the law of the respective Member State in matters of personal data protection. The German delegation has been already critical vis à vis this rather general rule and has expressed concerns as to the compatibility of such rules with data protection laws3, even if the concern was taken explicitly into account in the wording of Art. 55 Brussels IIter4.

3

In Art. 87 Brussels IIter Regulation the specific reference to “the law of that Member State in matters of personal data protection” is suppressed5. Data protection having already been the object of a special and coherent EU Regulation (Reg. 2016/679 of the European Parliament and the Council – GDPR)6, Art. 87 Brussels IIter needs only to clarify the outline of the transmission of information. The requested Central Authorities are expected to take all appropriate steps to facilitate communication between courts7.

4

In this frame, Art. 87. 2 Brussels IIter stipulates that any intermediary, court or competent authority may only use information transmitted to it under the Regulation for the purposes of the Regulation. No other use of the information transmitted and collected is allowed.

5

Transmission of information is subject to national law and procedure especially to the GDPR Regulation. A significant exception is stipulated in the very next Art. 88 Brussels IIter.

Article 88 Notification of the data subject Where there is a risk that it may prejudice the effective carrying out of the request or application under this Regulation for which the information was transmitted, the obligation to notify the data subject pursuant to Article 14(1) to (4) of Regulation (EU) 2016/679 may be deferred until the request or application has been carried out. 1

Art. 87 Brussels IIter sets out the general frame for the collecting and transmitting of information concerning the implementation of the Regulation between Central Authorities and courts with no particular reference to Regulation (EU) 2016/679 of the European Parliament and of the Council of 1 See Recitals (81). 2 See also Art. 62 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. 3 Rauscher/Rauscher, Europäisches Zivilprozeßrecht Kommentar (2023) Art. 55 Brüssel IIb-VO note 1. 4 Reading: “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”; see also Althammer/Großerichter, Art. 55 Brüssel IIa Rn. 1. 5 See Magnus/Mankowski/Luis de Lima Pinheiro, Art. 55 Brussels IIbis Regulation (2017) nr. 13. 6 Art. 88 Brussels IIter makes a special reference to the GDPR. 7 Recitals (79).

598

Stamatiadis/Tsantinis

Chapter VI: General Provisions

Art. 88 Brussels IIter

27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The implementation of the GDPR is nevertheless implied. Art. 88 Brussels IIter explicitly coordinates the Brussels IIter Regulation with the GDPR. The coordi- 2 nation falls in favor of Brussels IIter Regulation. Its effective implementation can be in specific cases endangered by the notification of the data subject concerning the collection, transfer, and processing of personal data pursuant to Art. 14 (1) to (4) of the GDPR. The “effective carrying out of the request or application” under the Brussels IIter Regulation could be prejudiced namely by the data subject’s right to object “to processing of personal data concerning him or her” (Art. 21 GDPR). That is why, Art. 88 Brussels IIter stipulates that the obligation to notify the data subject may be deferred until the request or application has been carried out. Brussels IIter thus introduces a significant exception from the strict provisions of the General Data Protection Regulation1. Art. 142 concerns data collected from other persons than the data subject3. Art. 14 paras (1) to (4) of Regulation (EU) 2016/ 679 reads as follows: “1. Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information: (a) the identity and the contact details of the controller and, where applicable, of the controller’s representative; (b) the contact details of the data protection officer, where applicable; (c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing; (d) the categories of personal data concerned; (e) the recipients or categories of recipients of the personal data, if any; (f) where applicable, that the controller intends to transfer personal data to a recipient in a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Art. 46 or 47, or the second subparagraph of Art. 49(1), reference to the appropriate or suitable safeguards and the means to obtain a copy of them or where they have been made available. 2. In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following information necessary to ensure fair and transparent processing in respect of the data subject: (a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period; (b) where the processing is based on point (f) of Art. 6(1), the legitimate interests pursued by the controller or by a third party; (c) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject and to object to processing as well as the right to data portability; (d) where processing is based on point (a) of Art. 6(1) or point (a) of Art. 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal; (e) the right to lodge a complaint with a supervisory authority; (f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources; (g) the existence of automated decision-making, including profiling, referred to in Art. 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject. 3. The controller shall provide the information referred to in paragraphs 1 and 2: (a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed; (b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or (c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed. 4. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were obtained, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2”.

1 And thus an exception from the otherwise immanent principle of transparency (Art. 5.1.a. GDPR). 2 “Information to be provided where personal data have not been obtained from the data subject”. 3 Art. 13 GDPR.

Stamatiadis/Tsantinis

599

Art. 89 Brussels IIter Non-disclosure of information 3

The exception introduced by Art. 88 Brussels IIter refers obviously (an argument from the use of the word “until”) to the time periods of Art. 14.3 GDPR and to the obligation of prior notice of the data subject according to Art. 14.4 GDPR.

Article 89 Non-disclosure of information 1. A Central Authority, court or competent authority shall not disclose or confirm information gathered or transmitted for the purposes of Chapters III to VI if it determines that to do so could jeopardise the health, safety or liberty of the child or another person. 2. A determination to that effect made in one Member State shall be taken into account by the Central Authorities, courts and competent authorities of the other Member States, in particular in cases of domestic violence. 3. Nothing in this Article shall impede the gathering and transmitting of information by and between Central Authorities, courts and competent authorities in so far as necessary to carry out the obligations under Chapters III to VI.

I. Legislative history 1

A provision like that of Art. 89 Brussels IIter is not contained in the repealed Regulation Brussels IIbis nor in the Council’s Proposal for the present Regulation.1 The specific provision was introduced into the text of the Regulation in the frame of the discussions within the Council or its preparatory bodies as Art. 67c Brussels IIter2, and in essence comprises the transfer of Art. 40 of the 2007 Hague Convention.3 In the frame of the same discussions it was proposed that Recital (88) of the Preamble of the Regulation be added.

II. Ratio legis 2

As Recital (88) of the Preamble of the Regulation Brussels IIter makes clear, the European legislator by means of this provision seeks to maintain a delicate balance, i.e. to ensure the ability of Central Authorities, courts or other competent authorities not to disclose any information collected for the purposes of the present Regulation when this could jeopardize the health, safety or liberty of the child or other person, and at the same time ensure the gathering and transmitting of information by, and among, the same authorities which is needed for the fulfillment of the obligations under this Regulation.

III. Content of the norm 3

In particular, par. (1) regarding each Central Authority, court or competent authority carrying out tasks as specified in the Regulation in the frame of international child abduction or regarding recognition or enforcement of decisions, or finally in cases related to disputes about parental responsibility, provides the option, when such authorities decide accordingly, not to disclose or confirm to the applicant or to any third party any information gathered when this could jeopardize the health, safety or liberty of the child or another person. Thus, for example, in the case of domestic violence, the court may decide not to disclose the new address of the child to the applicant or, more generally, not reveal any information concerning the situation of the child when this could jeopardize the said legal 1 COM(2016) 411 final. 2 Council of the European Union, Document ST 12717/17 INIT (13 October 2017). 3 Convention of the international recovery of child support and other forms of family maintenance (23 November 2007).

600

Stamatiadis/Tsantinis

Chapter VI: General Provisions

Art. 90 Brussels IIter

rights of the child or another person, although the said provision does not specify the precise range of meaning of the term “another person”. In other words, it is a rule that protects fundamental rights of the child and every natural person in general, as is the case with the national constitutions in toto of the various Member States of the EU. Nevertheless, to achieve the aforesaid “balance”, the European legislator has explicitly stated that the jeopardizing of the health, safety or liberty of the child or another person should not impede the gathering and transmitting of information by and between the Central Authorities, courts and other competent authorities when this is necessary in order to carry out the obligations arising from Chapters III to VI of the present Regulation. This means, in particular, that when possible and expedient, an application should be processed in the frame of the present Regulation without providing to the applicant all the information gathered during its processing. For instance, when national law provides for such, the Central Authority can expedite the process in the name of the applicant without however disclosing to the applicant information about the child’s whereabouts.4

4

As also was pointed out in the discussions in the Council, it should be made clear in the preamble of the Regulation that the same non-disclosure rule will apply even in cases where the mere submission of a request could jeopardize the interests of a child, or the health, safety or liberty of another person.5 As we can see, finally the European legislator states that in such a case there should not be an obligation under this Regulation to make such a request.6

5

The same provision of Art. 89 Brussels IIter stipulates that the decision taken by the Central Authorities, courts or central authorities of a Member State not to disclose information shall be taken into account, particularly in cases of domestic violence, by the relevant authorities of the other Member States (Art. 89 (2) Brussels IIter). Accordingly, this decision not to disclose information clearly has an impact on the authorities of the other Member States, while the wording of the provision, and especially the term “in particular”, implies that the decision is not exclusively about domestic violence, but may include a wider spectrum of cases.

6

Article 90 Legalisation or other similar formality No legalisation or other similar formality shall be required in the context of this Regulation. I. Legislative history . . . . . . . . . . . . . . . . . II. Scope of Application . . . . . . . . . . . . . . .

1 2

III. Rationale and content of the norm . . . . . . . IV. Transitional regulation . . . . . . . . . . . . . .

3 6

I. Legislative history In the Council’s Proposal for the present Regulation1 and specifically in Art. 68 thereof, a different 1 formula was proposed which provided for non-obligation of legalisation or other similar formality in respect of the documents referred to in specific Articles or in respect of a document appointing a representative for the proceedings. In the process of revising the Proposal in the frame of the Council,2 the specific norm was reformulated, and the current wording, based on Art. 65 of the Maintenance Regulation,3 was adopted.

4 5 6 1 2 3

Council of the European Union, Document ST 12717/17 INIT (13 October 2017). Council of the European Union, Document ST 12717/17 INIT (13 October 2017), Art. 67c note 37. Recital (88) of the Preamble. COM(2016) 411 final. Council of the European Union, Document ST 12717/17/INIT (13 October 2017), Art. 68. Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

Stamatiadis/Tsantinis

601

Art. 90 Brussels IIter Legalisation or other similar formality

II. Scope of Application 2

The norm in question concerns public documents published with a view to serving the aims of the Regulation. Art. 2 Brussels IIter gives a definition of “public document” that is submitted for autonomous interpretation. It is also given to understand that a public document must have been formally drawn up or registered in one Member State of the present Regulation, while public documents originating from third states do not fall within the scope of Art. 90 Brussels IIter.

III. Rationale and content of the norm 3

The present norm doesn’t generate especially dogmatic concerns, despite its undoubtedly high practical significance. It amounts to an established rule of European procedural law, which aims at ending legalisations or other similar formalities so as to do away with all formal obstacles and thus facilitate the circulation of legal documents within the European Union.4 Accordingly, provision of similar content can be found in other European Regulations (e.g., Art. 61 of Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Art. 74 EU Succession Regulation No 650/2012) while it already existed, though in a narrower sense, in the previous Regulation 2201/2003 (Art. 52). The waiver includes every kind of legalisation,5 including Apostille of the Hague Convention of 5 October 1961 abolishing the requirement for legalisation of foreign public documents.

4

In contrast with the previously applicable norm of Art. 52 of Regulation 2201/2003, which restricted the waiver from the obligation of legalisation only for documents (or equivalent to these documents) that were necessary for invoking or contesting a recognition of a judgment or a declaration of enforceability (Art. 37 and 38), or enforcement of a judgment (Art. 45), the present norm sets out a general waiver from the obligation of legalisation or other similar formality for all documents published in a member state pursuant to implementation of the Regulation. This means that a public document drafted in one member state is treated in another member state in the same way as public documents published in that state.

5

It is the case, however, that Art. 90 Brussels IIter does not preclude authenticity control per se of the foreign document in the country where it is to be used. But the issue of to what extent it’s possible to contest the proof of authenticity of a public document, the conditions for allowing such contestation, and the outcomes of contestation all fall within the scope of national procedural law.

IV. Transitional regulation 6

Note that Art. 90 Brussels IIter applies to authentic documents formally drawn up or registered in a member state on or after 1 August 2022 (Art. 100 (1) and Art. 104 (1) Brussels IIter), whereas for documents drawn up or registered in a member state before the above date, Regulation No 2201/ 2003 shall continue to apply (Art. 100 (2) Brussels IIter).

4 Regarding Art. 56 of Regulation 2201/2003, see Gebauer in Gebauer/Wiedmann, Zivilrecht unter europäischem Einfluss, (2nd ed. 2010), Art. 56 note 246, while regarding Art. 74 of Regulation 650/2012, see Magnus in Hüßtege/Mansel, BGB, (Bd. 6, 3d ed. 2019) note 2. 5 On the concept of legalisation, see Staudinger in Rauscher, Europäisches Zivilprozessrecht (5th ed. 2021), Art. 56 Brussels IIbis note 1.

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Chapter VI: General Provisions

Art. 91 Brussels IIter

Article 91 Languages 1. Without prejudice to point (a) of Art. 55(2), where a translation or a transliteration is required under this Regulation, such translation or transliteration shall be into the official language of the Member State concerned or, where there are several official languages in that Member State, into the official language or one of the official languages of court proceedings of the place where a decision given in another Member State is invoked or an application is made, in accordance with the law of that Member State. 2. The translations or transliterations of the translatable content of the free text fields of the certificates referred to in Articles 29, 36, 47, 49 and 66 may be into other official language or languages of the institutions of the European Union that the Member State concerned has communicated in accordance with Article 103 it can accept. 3. Member States shall communicate to the Commission the official language or languages of the institutions of the European Union other than their own in which communications to the Central Authorities can be accepted. 4. Any translation required for the purposes of Chapters III and IV shall be done by a person qualified to do translations in one of the Member States. I. Ratio legis . . . . . . . . . . . . . . . . . . . . .

1

IV. Responsibility for translations . . . . . . . . .

5

II. Content of the Norm . . . . . . . . . . . . . . . III. Obligation to disclose language . . . . . . . . .

2 4

V. Legalisation of the translation . . . . . . . . . .

6

I. Ratio legis The Regulation provides potentially for the translation of specific kinds of documents in order to fa- 1 cilitate their cross-border circulation, while a norm of similar intention is contained in Art. 57 of the Brussels Ibis Regulation. Accordingly, all translations covered by the Regulation are made in line with this article. The non-obligatory nature of translation conforms with the general principle of private law regarding freedom of choice of language in which private statements are made,1 and the favorable stance of the European legislator vis-à-vis the inherent multi-lingualism of the European Union and the desire to preserve the use of the various individual languages spoken within it.

II. Content of the Norm According to the rule of Art. 91 Brussels IIter, without prejudice to point (a) of Art. 55 (2) Brussels IIter, the translation or transliteration is made into the official language of the Member State where the document is invoked, and if in this Member State there are several official languages, into the official language or one of the official languages of court proceedings of the place where the foreign decision is invoked or an application is made, in accordance with the law of that Member State. In the case of standardized documents, i.e. certificates as listed in Art. 29, 36, 47, 49 and 66 Brussels IIter, it is allowed to translate or transliterate the translatable context of the free text fields into the official language or languages of the institutions of the European Union, which language(s) the state concerned has formally recognized in accordance with point (i) of Art. 103 (1) Brussels IIter, without of course precluding translation into the official language or one of the official languages of the Member State where the foreign decision is invoked or an application is made.

2

Furthermore, Art. 91 Brussels IIter states a proviso according to which in the procedure of enforcement of foreign decisions where the service has to be effected in a foreign country, the person against whom enforcement is sought may request a translation of the decision, in order to contest the enforcement, in one of the languages explicitly provided in Art. 55 (2) Brussels IIter. A provision of

3

1 See Kling, Sprachrisiken im Privatrechtsverkehr (2008), p. 247.

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Intro to Arts. 92–93 Brussels IIter Introduction to Articles 92–93 similar intention is contained in Art. 43(2) of the Brussels Ibis Regulation. In essence, it is a procedural guarantee for the right of defense of the recipient vis-à-vis a legal act drafted in a language he doesn’t understand.

III. Obligation to disclose language 4

Provision is also made for the obligation of the Member States to communicate to the Commission the official language or languages of the institutions of the European Union other than their own in which communications to the Central Authorities can be accepted (point (h) of Art. 103 (1) Brussels IIter).

IV. Responsibility for translations 5

Responsibility for making translations for the purposes of Chapters III and IV is provided, under the present norm, to persons qualified to do translations in any Member State. In other words, the translator is not required to have the respective qualification in the Member State where the foreign decision is invoked or an application is submitted; rather, it is sufficient that the translator has this qualification in one of the Member States (e.g., a duly qualified translator of Greek, versed in German law, can do a Greek translation of the relevant documents). This article, however, does not specify who has authority to carry out a transliteration. The matter is thus left to the national law of the Member States, while it may be noted that by its very nature transliteration does not require specialist linguistic knowledge, and it can therefore be accepted that it may be carried out by anyone, even the party invoking the foreign judgment to be recognized and enforced, and of course his or her attorney. The latter, after all, under many jurisdictions can carry out the main task, i.e. the translation, so it would be somewhat bizarre if her or she were not entitled to carry out transliteration.

V. Legalisation of the translation 6

Legalisation of the translation is not required (Art. 90 Brussels IIter), while the cost of the translation is calculated in line with the national law of the Member State where the foreign decision is invoked or the application is made.

Chapter VII Delegated Acts (Art. 92–Art. 93)

Introduction to Articles 92–93 Bibliography: Barcz, ‘Akty delegowane i akty wykonawcze – poje˛cie i kryteria rozróz˙nienia’ [Delegated and Implementing Acts: Concept and Criteria of Differentiation], Europejski Przegla˛d Sa˛dowy 3/2012, p. 6–16; Calvo Caravaca/Carrascosa González, Tratado de Derecho internacional privado (2021); Calvo Caravaca/Carrascosa González, Derecho de familia internacional (2003); Chappelart, Information report on better regulation: implementing acts and delegated acts, EESC, INT/656, 2013; Craig, Delegated Acts, Implementing Acts and the New Comitology Regulation, 2011, EL Rev. October, p. 671; Driessen, Delegated legislation after the Treaty of Lisbon: An analysis of Article 290 TFEU, European law review, n.6, 2010, p. 837–848; Gellermann, Article 290 TFEU, in: Steinz (ed.), EUV/AEUV (3rd ed. 2018); Hess, The integrating effect of European Civil Procedure Law, European Journal of Law Reform, 2002, 4(1), p. 3, 17; Mankowski, Chapter VII: Final Provisions, in: Magnus/Mankowski, Brussels IIbis – Commentary (2017), p. 457; Mankowski, Chapter VIII: Final Provisions, Articles 77 and 78, in: Magnus/ Mankowski, Brussels Ibis – Commentary, (2016), p. 1106; Schütze, Delegated Legislation in the (new) European Union: A Constitutional Analysis, The Modern Law Review, Volume 74, n. 5, 2011, p. 661–693.

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Chapter VII: Delegated Acts

Intro to Arts. 92–93 Brussels IIter

I. Content of the chapter Chapter VII sets out the conditions of the delegation of powers made by the EU law-maker to the 1 Commission in order to alter, modify or adapt the Annexes of the Regulation. As a consequence, and as it is usual in EPIL regulations, the amendment of the Annexes can be achieved without opening the Pandora box of negotiating the whole Regulation and without the so-difficult-to-reach unanimity of the Council, needed for the approval of a legislative act in family matters. These are technical and bureaucratic issues. Altering them does not require full-scale EU legislation with its immense and time-consuming effort. The Parliament and the Council need not to be bothered with such nitty-gritty. The Commission is the institution of the EU which is best equipped for an appropriately swift reaction if an amendment is required.1 As the Annexes are an integral part of the Regulation, it is though necessary to expressly empower the Commission according to art. 290 TFEU.

II. Legislative history Chapter VII is a new inclusion in the Regulation. Brussels IIbis also had rules on the amendments of Annexes, but they were not the object of a specific chapter. These rules were Art. 69 and 70. The reasons underlying this significant change is the complete renewal of the system of adoption of delegated acts enacted by the Treaty of Lisbon in art. 290 TFEU. The regulation of Brussels IIbis was obsolete and based in the defunct institution of “comitology” and therefore has been adapted to Art. 290 TFEU. As a consequence of this adaptation, the term “delegated acts” has been included and the conditions and limitations of the power of the Commission have also been modified accordingly.

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The delegation procedure set out by the Treaty of Lisbon appears to give the Commission more sub- 3 stantial discretion in comparison to the situation under the former procedure. The old procedure was set out in 1999/468/EC: Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (also applicable to what we now call “delegated acts”). The new procedure has no formal regulation beyond art. 290 TFEU. Its main guidelines have been laid down in the Inter-institutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 20162 (hereinafter, “Agreement on Better Law Making”). Under the old regulatory procedure, the Commission’s exercise of its delegated powers was scrutinized by an advisory committee formed by national experts. This committee’s opinion should be taken the utmost account. National experts do not have this privilege under the new regime. In contrast, the old rules only gave the Council and the Parliament a right of scrutiny that allowed them to indicate to the Commission that in their view a draft-implementing act exceeded the implementing powers provided for in the basic act. Under the new delegation procedure, the Parliament and the Council have greater power to scrutinise the Commission as a result of their ability to revoke or object to a delegated act adopted by the Commission.3 Moreover, this significant change in the regulation of the Annex amendment procedure is a conse- 4 quence of the EU commitment with a high quality legislative technique reflected in the mentioned Agreement on Better Law-Making. The aim of this agreement is to improve the way the EU makes laws by ensuring that the European Parliament, the Council and the European Commission are committed to sincere and transparent cooperation throughout the entire legislative cycle. Among other rules, the 2016 Agreement sets rules to clarify and facilitate the use of delegated acts in accordance with Art. 290 of the TFEU and contains an annex with standard clauses to this effect. Arts. 92 and 93 of the Regulation aims to reflect this transparency and clarity.

1 Mankowski in Magnus/Mankowski, Brussels Ibis (2011), Art. 77 note 1, p. 1106. 2 OJ L 123, 12 May 2016, p. 1–14. 3 Chappelart, note 2.2.

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Art. 92 Brussels IIter Amendments to the Annexes

Article 92 Amendments to the Annexes The Commission is empowered to adopt delegated acts in accordance with Article 93 concerning the amendment of Annexes I to IX in order to update or to make technical changes to those Annexes.

I. Content of the provision 1

Art. 92 permits the Commission to alter, modify and adapt Annexes I to IX according to the consultation proceeding set out in Art. 93. It also includes some of the “ex ante” requirements set out in Art. 290 TFEU for the delegation to be valid. The rest of these requirements are foreseen in Art. 93.

2

The Annexes in relation to which the Commission can make amendments are those containing the models of the forms that shall be used by the legal operators when applying the Regulation. These Annexes are the following: – Annex I: Certificate to be issued by the court following a decision refusing the return of a child to another Member State based solely on point (b) of article 13(1), or on article 13(2), or both, of the 1980 Hague Convention. – Annex II: Certificates concerning judgments in matrimonial matters. – Annex III: Certificates concerning judgments on parental responsibility. – Annex IV: Certificates concerning judgments on return of a child to another Member State pursuant to the 1980 Hague Convention and any provisional, including protective, measures taken in accordance with article 27(5) of the Regulation accompanying them. – Annex V: Certificates concerning certain decisions granting rights of access. – Annex VI: Certificate concerning certain decisions on the substance of rights of custody given pursuant to article 29(6) of the Regulation and entailing the return of the child. – Annex VII: Certificate concerning the lack or limitation of enforceability of certain decisions granting rights of access or entailing the return of the child which have been certified in accordance with article 47 of the Regulation. – Annex VIII: Certificate concerning an authentic instrument or an agreement on divorce or legal separation. – Annex IX: Certificate concerning an authentic instrument or agreement in matters of parental responsibility.

3

Only these annexes are referred to and mentioned. The exclusion of Annex X is purposeful and not fortuitous or accidental.1 This Annex is not concerned for evident reasons: it contains the correlation table between Brussels IIbis and this Regulation. This is a permanent feature and not subject to changes.

4

Yet the Commission is only entitled to actualise the Regulation and to implement rather technical changes, not to execute fundamental changes.2 Otherwise it would act ultra vires and invade into an area which is preserved for the Council.3 Democratic deficits and shortages inherent in the consultation process under Art. 93 on one hand and the Commission as the delegated institution on the other hand should be kept as far at bay as possible.4 It must be borne in mind that every alteration of the standard forms has direct implications for practical purposes and can alleviate or widen the burden of information necessary to be proven in the enforcement procedure. The importance of the role

1 Mankowski in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 69, note 1. 2 Mankowski in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 69, note 3; Staudinger in Rauscher, Art. 74 Brüssel I-VO note 2; Mankowski in Magnus/Mankowski, Art. 74 Brussels I Regulation note 1. 3 Mankowski in Magnus/Mankowski, Art. 74 Brussels I Regulation note 3; Mankowski in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 69, note 3. 4 Rauscher in Rauscher, Art. 69 note 2.

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Chapter VII: Delegated Acts

Art. 92 Brussels IIter

played by delegated acts in Union law must be underlined. Used in an efficient, transparent manner, they contributing to simple, up-to-date legislation and its efficient, swift implementation.5 The instrument through which the Commission shall comply with the mandate of the EU legislator 5 is the “delegated act”. Under Art. 290 TFEU, the EU legislator may grant powers to the Commission through specific rules inscribed into a legislative act (the ‘basic act’) to adopt delegated acts. According to Art. 290.1 para. (1), delegated acts are non-legislative acts adopted by the Commission that serve to amend or supplement the non-essential elements of the legislation. Their most common use is precisely the adaptation of the Annexes of Regulations or Directives in order to take account of technical and scientific progress.6 In relation to their nature, Art. 290 states that delegated acts are “non-legislative” acts. This does not mean that they don’t have legal binding force. It only makes reference to the procedure under which they have been adopted. They are not adopted by the legislative procedure (ordinary or special) and, as a consequence, they are not the product of public sessions and of the exchange of views with the national parliaments.7 The empowerment of the Commission in Art. 92 of the Regulation is constitutive: it is the competence of the EU law-maker to decide whether and to what extent use delegated acts, within the limits of the Treaties. Delegated acts shall not be confused with “implementing” acts. Under the Rome Treaty, comitology was the defining characteristic of executive legislation. The Lisbon Treaty represented a revolutionary restructuring of the regulatory process. The old regime for implementation was split into two halves. Art. 290 TFEU henceforth governs delegations of legislative power (“delegated acts”), while Art. 291 TFEU established the regime for delegations of executive power (“implementing acts”). Unlike the situation with implementing acts,8 there is no specific formal rule for the preparation of delegated acts. As a consequence, various informal instruments have been adopted by EU institutions and a series of practices have been agreed upon between them for this purpose, as well as for the scrutiny and monitoring thereof. The main source is the Agreement on Better Law-Making, mentioned in Art. 93 of the Regulation.9 The following shall also be taken into account: – Communication from the Commission to the European Parliament and the council on Implementation of Art. 290 of the TFEU.10 – Common understanding on delegated acts agreed between the Parliament, the Council and the Commission and approved by the Conference of Presidents of the Parliament on 3 March 2011.11 – Amendment to Rules 87 (a) and 88 of the European Parliament’s Rules of Procedure in 2012.12

6

The delegation of powers on the Commission is subject to strict “ex ante” requirements under 7 Art. 290 paragraph (1) TFEU. These requirements shall be interpreted accordingly to the Agreement on Better Law-Making mentioned and to the rest of informal instruments listed above. The first requirement is that the basic act (here, Brussels IIter Regulation) must define the objectives, content, scope and duration of the delegation of power. Secondly, the essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power. The differentiation between essential and non-essential elements of the legislative act could seem a difficult task. However, the concept is very familiar from case law and the comitology system, as well as being a principle that is at the heart of the delegation mechanism.13 Finally, the empowerment shall refer to non-legislative acts of general application (i.e. cannot address individual situations). The three conditions are met in Chapter VII of the Regulation. To begin with, Art. 92 determines the object (amend5 Mankowski in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 69 note 3; Rauscher in Rauscher, Art. 69 note 2. 6 EU Glossary of summaries, online. 7 Craig, p. 671. 8 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011. 9 OJ L 123, 12 May 2016, p. 1–14. 10 COM (2009) 673 final, 9 December 2009. 11 Ref. 8460/11. 12 Doc. A7-0072/2012. 13 Chappelart, note 2.1.6.

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Art. 92 Brussels IIter Amendments to the Annexes ing a legislative act), the content (Annexes I to IX, which are non-essential elements) and the scope of the delegation (“in order to update or to make technical changes”). Art. 93 (2) establishes the duration of the delegation of power (“for an indeterminate period of time from 22 July 2019”). It would be legitimate to question whether “an indeterminate period of time” is a valid “duration”. This kind of time limit is foreseen in the April 2011 Common Understanding. This is the solution preferred by the Commission and the rule for the delegations adopted most recently. Secondly, the delegation only refers to the Annexes, thus, all essential elements of the Regulation have been kept for the legislative act. Finally, all the Annexes referred to are of general application, they are the same for all the MS party to the Regulation. 8

In addition, Art. 290 paragraph (2) TFEU sets out “ex post” controls to which the delegated act shall be subject. These control mechanisms shall also explicitly lay down in the legislative act. They are the following: (a) the European Parliament or the Council may decide to revoke the delegation and (b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.14 Both control mechanisms have also been included in the Regulation. The period for the entry into force if no objection of the Council is made is two months. It may be striking that the Regulation only grants these control rights to the Council and not to the Parliament, whose only prerogative in relation to ex-post control is to be informed, as Art. 93 paragraph (7) sets out. However, the explanation for the exclusion of the Parliament is simple: as the best doctrine underlines, the possible ex-post controls operate not by virtue of the Treaty provisions, but by virtue of their explicit inclusion in the basic act; their inclusion is not obligatory, and they need not be included cumulatively.15 In addition, if the basic act is adopted in a special legislative procedure, as is the case here, the instruments of ex-post control may be vested in the Council alone, not in Parliament, as the latter did not act as a co-deciding co-legislator in this instance.16 The exercise of the ex-post control instruments by each of the two institutions is not in any way mutually dependent.17 For this purpose, the Council shall act by a qualified majority.

9

Finally, and according to Art. 290 paragraph (3), the adjective “delegated” shall be inserted in the title of delegated acts. In this case, the formal instrument to be used for concrete alterations is the Commission Regulation, so the title of the delegated act would be, for example, Commission Delegated Regulation (EU) 2022/[…] of [… date …] amending Annexes I to IX to Regulation (EU) No 1111/ 2019. No delegated act has been adopted yet or is in process of adoption according to the Register of delegated and implementing acts created in 2017.18

10

Regarding the process of adoption of a delegated act, as it will be developed in the analysis of Art. 93 below, no formal rules exist either. The Interinstitutional Agreement of 13 April 2016 on Better LawMaking foresees some steps. Before it is formulated, the main one is the consultation to an expert group (which, for delegated acts, have replaced the comitology committees). Art. 93 of the Regulation makes reference to this step in paragraph (4). These experts, who will represent the EU MS, will have voice, but no vote: the decision on the adoption of the amendments is entirely on the Commission.

II. Legislative history 11

Art. 69 Brussels IIbis did not include an explicit mention to the fact that the empowerment for the amendment of the Annexes was being made to the Commission. Art. 92 of the new version has changed that. This change is not of much significance, because the competence of this institution was implicitly derived from Art. 70 paragraph (1) and paragraph (2) Brussels IIbis. In contrast, what is highly relevant is the inclusion of the mentions that Art. 290 TFEU requires for a delegation to be valid, which have been analysed above.

14 15 16 17 18

Chappelart, note 2.2. Barcz, p. 8. Barcz, p. 8 and EP Briefing, Understanding delegated and implementing acts, p. 6. Gellermann in R. Steinz, Article 290 TFEU, note 10. https://webgate.ec.europa.eu/regdel/#/home.

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Chapter VII: Delegated Acts

Art. 93 Brussels IIter

It shall also be noted that the number of Annexes in relation to which the delegation has been constituted has increased regarding Brussels IIbis. This is only a consequence of the inclusion of new Annexes devoted to forms in the new version (from four to nine). Specific forms on particular aspects of decisions on child abduction were included.

12

Article 93 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 92 shall be conferred on the Commission for an indeterminate period of time from 22 July 2019. 3. The delegation of power referred to in Article 92 may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it to the Council. 6. A delegated act adopted pursuant to Article 92 shall enter into force only if no objection has been expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council. 7. The European Parliament shall be informed of the adoption of delegated acts by the Commission, of any objection formulated to them, or of the revocation of the delegation of powers by the Council. I. Content of the provision . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . .

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III. The procedure for the amendment of the Annexes . . . . . . . . . . . . . . . . . . . . . .

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1. Conditions for the delegation of power on the Commission . . . . . . . . . . . . . . . . . . . . 2. The steps of the procedure . . . . . . . . . . . 3. Role of the Council . . . . . . . . . . . . . . . . 4. Role of the EP . . . . . . . . . . . . . . . . . . .

6 7 8 9

I. Content of the provision The “consultative procedure” for the amendment of the Annexes set out in old Brussels IIbis has be- 1 come an empowerment to the Commission to adopt delegated acts in the new Regulation. This is a clear improvement in legislative technique that responds to criticism of the previous version.1 Art. 93 defines the conditions and limits within which the power to adopt delegated acts is conferred upon the Commission. Thereby, it defines the relationship between the Commission as the empowered institution to adopt the delegated acts and the legislative powers of the EU, the Parliament and the Council.2 The structure and dictum of the Article is very similar to Art. 78 of Brussels I Regulation. Paragraph (1) repeats what Art. 92 already stated. Without this paragraph, the outcome would be exactly the same: The Commission would be empowered to adopt delegated acts, but only within the limits of Art. 93. Paragraph (2) includes the period for which the delegation is made, complying with the 1 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 1. 2 Mankowski in Magnus/Mankowski, Brussels I Regulation (2011), Art. 78 note 2.

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Art. 93 Brussels IIter Exercise of the delegation mandate of Art. 290. The Commission has been vested with the power for a preliminary unrestricted time. Paragraph (3) includes one of the general principles of delegated acts. According to it, the Council can wrestle away the power from the Commission at any time unless it is bound otherwise.3 This paragraph makes it clear that the delegator in this Regulation, and thus, the lawmaker of the Regulation, is the Council and not both the Council and the Parliament, as it was explained above. This is because the Regulation was adopted in accordance with a special legislative procedure, where the European Parliament has only a consultative role. Paragraph (4) is the only point that was not addressed in Art. 78 Brussels Ibis Regulation. According to it, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Agreement on Better Law-Making.4 One may wonder if the consultation of stakeholders might also be carried out even if it is not expressly mentioned in the Article. According to the referred Agreement, note 28, the Commission commits to gathering, prior to the adoption of delegated acts, all necessary expertise, including through the consultation of Member States’ experts and through public consultations. So the answer is a yes. Paragraphs (5) and (7) of Art. 93 enshrine the obligation of the Commission to maintain the Council and the Parliament informed about the adoption of a delegated act. In the case of the Council, and according with paragraph (6) this institution has also the veto right on the delegated Regulation, whose exercise is limited to a period of two months (extendable for other two) since it receives the adoption notification. As the same paragraph states, if no objection has been expressed by the Council within that period or if, before the expiry of that period, the Council has informed the Commission that it will not object, the delegated act shall entry into force.

II. Legislative history 3

The procedure for the adoption of the amendment of the Annexes finds a new formulation in this Regulation that differs from the one in Brussels IIbis, at least in appearance. As it was stated in the general comment on the Chapter above, the change in this field is quite significant. The rules of procedure of the Commission in order to adopt an amendment of an Annex to the Regulation are much more informal right now than they were when the former version was in force. In fact, Brussels IIbis did not set the procedural rules for the amendment, because they were clearly set in the Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (Decision 1999/468/EC, now repealed).5 Therefore, Art. 70 of Brussels IIbis only stated that the Commission should be assisted by a committee and submitted to Arts. 3 and 7 of the said Decision for the rules of procedure.

4

Decision 1999/468/EC drafted different kinds of committees that shall assist the Commission for the exercise of its delegated powers. The one chosen for Brussels IIbis by the reference to Art. 3 of the Decision was the advisory committee. According to said Art. 3, the advisory committee should be composed by the representatives of the Member States and chaired by the representative of the Commission. As prescribed in the following paragraphs of such Art., the representative of the Commission should submit to the Committee a draft of the measures to be taken. The committee should then deliver its opinion on the draft, within a time limit which the chairman may have laid down according to the urgency of the matter, if necessary by taking a vote. The opinion should be recorded in the minutes and the representative of each Member State had the right to ask to have its position recorded in the minutes. Even if the opinion of the advisory committee was not binding, the Commission should take the utmost account of it and should inform the committee of the manner in which the opinion had been taken into account. According to Art. 7 Decision 1999/468/EC, the advisory committee should adopt its own rules of procedure on the proposal of its chairman, on the basis of the Standard rules of procedure for committees, published in the OJ.6 Art. 7 also imposed some duties to the Commission in order to grant the principles of transparency and legality in the activity of the committee 3 4 5 6

Mankowski in Magnus/Mankowski, Brussels I Regulation (2011), Art. 78 note 3. The omission in Brussels Ibis is therefore understandable, given that the Agreement dates from 2016. Council Decision 1999/468/EC, OJ L 184, 17.7.1999, p. 23–26. Standard rules of procedure for committees – Rules of procedure for the [name of the committee] committee, OJ C 206, 12.7.2011, p. 11–13.

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(public access to documents, duty of the Commission to inform the EP on a regular basis and publication in the OJ of an annual report of the working of the committees). As it will be seen in the next section, this procedure has been replaced by a simpler and more informal 5 one in what relates to the role of national experts. In contrast, the control power of the EU lawmaker (in this case, only the Council) is higher than in the defunct comitology system.

III. The procedure for the amendment of the Annexes 1. Conditions for the delegation of power on the Commission The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article (Art. 93 (1)). The power to adopt delegated acts referred to in Art. 92 shall be conferred on the Commission for an indeterminate period of time from 22 July 2019 (Art. 93 (2)). The delegation of power referred to in Art. 92 may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force (Art. 93 (3)).

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2. The steps of the procedure The former version made a clearer reference to a committee. Instead of that, Art. 93 (4) states that the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Agreement on Better Law-Making.

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3. Role of the Council As soon as it adopts a delegated act, the Commission shall notify it to the Council (Art. 93 (5)). A delegated act adopted pursuant to Art. 92 shall enter into force only if no objection has been expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council (Art. 93 (6)).

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4. Role of the EP The European Parliament shall be informed of the adoption of delegated acts by the Commission, of any objection formulated to them, or of the revocation of the delegation of powers by the Council (Art. 93 (7)).

Chapter VIII Relations with other instruments (Art. 94–Art. 99)

Introduction to Articles 94–99 I. The EU as external actor in private international law . . . . . . . . . . . . . . . . . . . . .

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V. The relations with future instruments: EU external competence . . . . . . . . . . . . . . . 16

II. Content of the chapter . . . . . . . . . . . . . . 7 III. Legislative history . . . . . . . . . . . . . . . . . 12

VI. The conflict between international conventions of private law . . . . . . . . . . . . . . . . 21

IV. General principle underneath Chapter VIII: primacy of EU law . . . . . . . . . . . . . . . . 14

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Intro to Arts. 94–99 Brussels IIter Introduction to Articles 94–99 Bibliography: Andrae, Zur Abgrenzung des räumlichen Anwendungsbereichs von EheVO, MSA, KSÜ und autonomen IZPR/IPR, in: Praxis des internationals Privat- und Verfahrenrechts (IPRax) 2006, p. 82; Paz Andrés Sáenz de Santa María, La Unión Europea y el Derecho de los Tratados: una relación compleja, in: Revista Española de Derecho Internacional (REDI) 2016, p. 51, 102; Bellet/Goldman, Explanatory Report of the Convention on the Recognition of Divorces and Legal Separations, Hague Conference on Private international law (1971); Benicke, Haager Kinderschutzübereinkommen, in: Praxis des internationals Privat- und Verfahrenrechts (IPRax) 2013, p. 44, 51; Bogdan, Les aperçus de l’évolution des règles de conflits de lois dans les pays nordiques, Travaux du Comité français de droit international privé (2004), pp. 195–220; Calvo Caravaca/Javier Carrascosa González, Tratado de Derecho internacional privado (2021); Calvo Caravaca/Javier Carrascosa González, Derecho de familia internacional (2003); Campuzano Díaz, El nuevo Reglamento (UE) 2019/1111: análisis de las mejoras en las relaciones con el Convenio de La Haya de 19 de octubre de 1996 sobre responsabilidad parental, in: Cuadernos de Derecho Transnacional (CDT), 2020, 12(2), p. 97, 117; Campuzano Díaz, La política legislativa de la UE en Dipr. de familia. Una valoración de conjunto, in: Cuadernos de Derecho Transnacional (CDT) 2013, 5(2), p. 234, 264; CIEC, Explanatory Report on the Convention n.11 on the recognition of decisions relating to the matrimonial bond signed at Luxembourg on 8 September 1967; Coester-Waltjen, „Brüssel II“ und das „Haager Kindesentführungübereinkommen“, in: Thomas Raucher/Heinz-Peter Mansel (eds.), in: FS für Werner Lorenz zum 80 Geburstag (2001), p. 305; Crawford/Carruthers, Connection and coherence between and among European instruments in the private international law of obligations, in: International and Comparative Law Quarterly (ICLQ), 63 (1) (2014), p. 1, 30; Cremona, Opinions 1/13 and 2/13 and EU External Relations Law, in: Franzina (ed.), the external dimension of EU Private international law after Opinion 1/13 (2017), p. 3–20; Dawar, Disconnection clauses: an inevitable symptom of regionalism?, in: Working Papers of the Society of International Economic Law (2010), p. 11; Franzina (ed.), The external dimension of EU private international law after opinion 1/13 (2016); García-Corrochano Moyano, Sucesión de Estados en Materia de Tratados, in: Agenda Internacional (1996), p. 121; González 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; 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; Hess, Back to the Past: BREXIT und das Europäische internationale Privat-und Verfahrensrecht, in: Praxis des internationals Privat- und Verfahrenrechts (IPRax) 2016, p. 409; Hess, The integrating effect of European Civil Procedure Law, European Journal of Law Reform 2002, 4(1), p. 3, 17; Licková, European Exceptionalism in International Law, in: The European Journal of International Law 2008, 19 (3), p. 463, 490; Majoros, Les conventions internationales en matière de droit privé, tome I et tome II (1976); Malatesta/Bariatti/Pocar, The external dimensión of EC private international law in family and succession matters (2008), CEDAM; Martiny, Kindesentziehung – „Brüssel II“ und die Staatsverträge, in: ERA-Forum I/2003, p. 97, 101; 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; De Miguel Asensio, Convenios internacionales y unificación del Derecho internacional privado de la Unión Europea, in: Nuevas fronteras del Derecho de la Unión Europea (Liber amicorum José Luis Iglesias Buhigues), p. 57; Mostowik/Niedzwiedz, International conventions concluded by the European union after the ECJ “Lugano II opinion” of 2006. An alternative or complementary to EU Regulations path to unification of private international law?, in: Polish Review of International and European Law (2012), 1(1–2), p. 9, 52; Pirrung, Chapter V: Relations with Other Instruments, in: Luís de Lima Pinheiro et al. (eds.), Brussels IIbis – Commentary (2017) p. 457, 471; Pryles, The time factor in private international law, Monash University Law Review 1980, 6(3), p. 225, 243; Schulz, Die EU und die Haager Konferenz für Internationales Privatrecht, in: von Hein/ Rühl (eds.), Kohärenz im Internationalen Privat- und Verfahrensrecht der Europäischen Union (2016), p. 110; Wagner/Janzen, Die Anwendung des Haager Kinderschutzübereinkommens in Deutschland, in: Familie, Partnerschaft und Recht (2011), p. 110.

I. The EU as external actor in private international law 1

The EU’s constant action in the field of private international law raises certain difficulties of interaction with the Conventions promoted by other international organisations, and in particular by The Hague Conference on Private International Law. The EU does not intend to limit its action to private international law relations within this area of integration, but has its sights set further afield.1 It is in this context, it has even become a full member of the Hague Conference, which required the international organization to amend its Statute.2 It can therefore be said that regional unification at the European level is carried out without losing sight of the intended universal unification of private inter1 Campuzano, El Nuevo Reglamento …, note 6.

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national law, which requires building bridges that are not always easy to design. One of the objectives of Regulation 2019/1111 was precisely to improve these relations with other instruments, and this is the object of Chapter VIII. Chapter VIII deals with the relations between this Regulation and other conventional private interna- 2 tional law instruments on the dissolution of marriage or child protection. The underlying principle of the whole chapter is the principle of primacy of EU law. This principle is applied in a different way depending on the type of convention in question. Two different kinds find a reference in the chapter. In the first place, the conventions originating within the EU.3 The term “EU” shall be understood the Member States with the exception of Denmark and, of course the United Kingdom.4 Secondly, the conventions that exceed the territorial limits of the EU. This Regulation provides a different treatment to each of these kinds of instruments. As for the conventions within the EU (conventions between two or more MS), all of them are “super- 3 seded” by the Regulation with regard to matters governed by it, as they were by its former version. Concerning the conventions to which MS and third States are a party, the Regulation shall “take precedence” over them when the situation falls inside its scope of application. However, in relation to this second kind of instruments, some exceptions to the EU law primacy principle have been explicitly included: the first one is the reference in recital 91 to Art. 351 TFEU as for the agreements concluded by a MS before the date of its accession to the Union. As it will be explained later, this exception is only applicable to the relations of a MS and a third State, and not to the mutual relations between MS. The second exception is the so-called “Nordic Convention” on marriage, adoption and guardianship.5 According to Art. 94 (2) it will apply, in whole or in part, in the mutual relations of Finland and Sweden, in place of the rules of Brussels IIter. The third exception is the 1980 Hague Convention on Child Abduction. According to Art. 96, it shall apply to relations between MS, even if it shall be complemented by the provisions of the Regulation. In fourth and last place, the 1996 Hague Convention on the protection of children shall also apply under certain circumstances laid down in Art. 97.6 The chapter only makes reference to already existing conventions and is silent as for the external competence to conclude future agreements on the matters governed by the Regulation. As it will be discussed later at this introduction, the external competence has exclusively belonged to the EU since the entry into force of Brussels IIbis.7 As a consequence, MS have not concluded agreements neither between them neither with third States that might affect the above-mentioned matters. There is a unique reference to this question in the Regulation and it is to make an exception. Art. 94 (3) implicitly allows Nordic MS to conclude future amendments to the 1931 Nordic Convention. The Regulation only sets a condition: the rules of jurisdiction of these new treaties shall “be in line” with those laid down in the Regulation.

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The chapter does not address relations with other EU instruments, like Regulation 1259/2010 of 20 De- 5 cember 2010 on enhanced cooperation in the area of the law applicable to divorce and legal separation8 or Regulation 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforce2 Accession to The Hague Conference on Private International Law was formally requested by Decision of 5 October 2006 (2006/719/EC), OJ L 297, 26 October 2006. The accession was formalised at the Council of Policy and General Affairs of the Conference of 3 April 2007. Amendments to the Statute of The Hague Conference on Private International Law, done at The Hague on 31 October 2005, adopted by the Hague Conference on Private International Law at its 20th meeting in The Hague on 30 June 2005, and consolidated text of the said Statute, BOE n. 77 of 30 March 2012. 3 Magnus/Mankowski/Pirrung, Brussels IIbis Regulation (2017), Chapter V note 1. 4 Hess, IPRax 2016, 409, 416. 5 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. 6 Art. 99 on the Treaties between a MS and the Holy See shall not be considered as an exception to the EU primacy principle. The purpose of this Article is to put decisions of ecclesiastical courts on an equal footing with decisions given by the civil authorities of the MS for the purpose of their recognition in another MS. 7 Article 94 (1) reads as follows: “Subject to the provisions of paragraph 2 of this Article and Articles 95 to 100, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of Regulation (EC) No 2201/2003”. 8 OJ L 343, 29.12.2010, p. 10–16.

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Intro to Arts. 94–99 Brussels IIter Introduction to Articles 94–99 ment of decisions in matters relating to maintenance obligations (mentioned in Recital n. 13).9 In that context, the ordinary rules of lex specialis and lex posterior apply, since former Brussels IIbis is expressly repealed by Art. 104 of the new Regulation.10 Nor does this chapter deal with questions of intertemporal law, as treated in Art. 100 on transitional provisions (former Art. 64). 6

Scholars that have previously commented on corresponding Chapter V of Brussels IIbis did not considered it to be a good example of legislative technique.11 Some of grounds for their critics are still present in the new version. For example, the reference to Art. 100 on transitional provisions in Art. 94 (1) (former Art. 59) is without purpose and misleading. Art. 98 on the scope of effect of the Agreements referred to in the chapter (former Art. 62) is still obscure and incomprehensible and Art. 99 on the Treaties with the Holy See (former Art. 63) uses an unnecessarily complicated technique.12 However, the Chapter as a whole has been considerably improved. Firstly, because technical and temporal adaptations have been made. Secondly, and most important, because clearer rules on the relations between the Regulation and the 1996 and 1980 Hague Conventions have been successfully implemented.13

II. Content of the chapter 7

Art. 94 (1) provides that the Regulation will replace conventions concluded between two or more Member States on the matters covered by the Regulation. Art. 94 (2) is the first provision concerning conventions between MS and third States. It deals with the relations of the Regulation and the 1931 Nordic Convention, signed by Finland, Sweden, Denmark, Norway and Iceland. The subsequent paragraphs of Art. 94 also deal with the effects of the Nordic Convention.

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Art. 95 mentions certain multilateral conventions, including a number of agreements promoted by The Hague Conference on Private International Law, reiterating that in relations between the Member States the Regulation will take precedence. This is the same list as that contained in Art. 60 Brussels IIbis, except that the new Regulation devotes a specific article to regulating relations with The Hague Convention of 25 October on 1980 the Civil Aspects of International Child Abduction. In particular, Art. 96 provides that where a child is retained in or wrongfully removed to 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, as supplemented by Chapters III and IV of the Regulation, shall continue to apply. It is then added that where a judgment ordering the return of a child under the 1980 Hague Convention has been given in one Member State and is to be recognised and enforced in another Member State following the wrongful removal or retention of the child, Chapter IV will apply.

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Art. 97 of the Regulation is dedicated to the relations with the 1996 Hague Convention This article has been reformed with respect to Brussels IIbis, with the addition of a new paragraph in order to improve the interpretative problems that had arisen with the coordination of international jurisdiction rules. This provision is complemented by Art. 98, which establishes in its paragraph 1 that the Conventions mentioned in the preceding articles will continue to have effect in matters that are not regulated by the Regulation, referring then in its paragraph 2 to the 1996 Hague Convention, to indicate that it will continue to have effect between the Member States in accordance with the provisions of Art. 97.

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Art. 98 (1) deals with the scope of effect of the agreements and conventions referred in the Chapter, once that they have been declared superseded by the Regulation. These agreements will continue to apply in relation to matters not governed by the Regulation. Paragraph (2) reiterates that the 1996 and 1980 Hague Conventions will continue to apply, not only in the matters outside the scope of the Regulation but also in the matters within such scope, in compliance with Art. 96 and 97.

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The last provision of the Chapter, Art. 99, deals with the relations of the Regulation and the Treaties between the Holy See and some MS. According to these agreements, decisions as to the invalidity of 9 10 11 12 13

OJ L 7, 10.1.2009, p. 1–79. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 1. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 1. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 1. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 3.

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marriage taken by religious authorities under these Treaties are recognized in such MS party to the Treaty. Art. 98 of the Regulation extends that recognition to other MS on the conditions laid down in Chapter IV of the Regulation, that is, on the same conditions as civil decisions on marriage annulment.

III. Legislative history Chapter VIII of the new Regulation (Arts. 94–99) replaces Chapter V of Brussels IIbis (Arts. 59–63), which came from Chapter IVof Brussels II (Arts. 36–40) and Title V of the Convention of 28 May 1998 on Jurisdiction, Recognition and Enforcement of Judgements in Matrimonial Matters, drawn up on the basis of Art. K.3 of the Treaty of the European Union14 (Arts. 38–42). In substance, Art. 94 of the new Regulation replaces former Art. 59 Brussels IIbis; Arts. 95 and 96 correspond to former Art. 60; Art. 97 replaces former Art. 61; Art. 98 replaces former Art. 62 and Art. 99 corresponds to former Art. 63.

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The text of the Commission Proposal of 30 June 201615 has not suffered significant changes during the negotiations inside the Council. The most relevant one is that what has been called “Nordic exception” was going to be abolished in the proposal, but finally appeared again in the adopted text.

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IV. General principle underneath Chapter VIII: primacy of EU law The underlying principle of the present chapter is the principle of priority of EU law.16 This principle 14 is also enshrined in Brussels Ibis Regulation (Art. 60) but is subject to significant exceptions: the rules contained in Art. 71 Brussels Ibis give priority to certain multilateral conventions on particular matters. According to this provision, the Regulation shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Neither Brussels IIbis nor Brussels IIter have counterpart to this rule. Two or more States cannot establish specific rules to be applied in the relations between such States in addition to the provisions of the Regulation. Brussels II allowed the application of such bilateral rules in Art. 39, but that possibility was abolished before it was used by any MS.17 It can therefore be said that the principle of the primacy of European law is even stronger in Brussels IIbis and ter than in Brussels Ibis. Aside the Regulation, other conventions relating to matters governed by its scope of application cannot be applied, even if they would be more favourable as regards the recognition of a foreign decision in a concrete case18 or if the Regulation is less precise.19 Thus, this Regulation, as its precedent, has among EU States in principle exclusive character, with the only exceptions expressly set out in the rest of provisions of the Chapter. Notwithstanding this principle of priority of EU law, MS are not hindered to establish internal additional provisions, as, for example, Germany did with the Gesetz zum internationalen Familienrecht (Code on international family law),20 with executory provisions on this Regulation, on The Hague Convention of 25 October 1980 and on The Luxembourg Convention of 20 May 1980 and now also the Hague Convention of 19 October 1996.21 Another example is Art. 778 sexies of the Spanish Ley de Enjuiciamiento Civil (Civil Procedure Act), inserted by additional provision number 3 of Law 15/2015.22 This Article sets out a particular civil procedure for the 14 15 16 17 18 19 20 21 22

OJ 1998 C 221/1. COM[2016] 411 final. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 4. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 4. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 4 and Spellenberg in Staudinger, Kommentar zum BGB, IntVerfREhe (2015), Art. 59 note 4. Mankowski in Magnus/Mankowski, Brussels I Regulation (2011), Art. 69 note 3. 26 January 2005, BGBl. 2005 I, 162. Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Chapter V note 4. BOE n. 158, 3 July 2015.

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Intro to Arts. 94–99 Brussels IIter Introduction to Articles 94–99 return of a child illegally abducted or retained, when a claim is filed on the basis of the Regulation, The 1980 Hague Convention or The 1980 Luxembourg Convention.

V. The relations with future instruments: EU external competence 16

The systematisation of the provisions dealing with EU external relations in the Lisbon Treaty did not include the express conferral of external powers in each policy field.23 Instead, the Lisbon Treaty inserted a new provision in the TFEU which was intended to reflect the doctrine of implied powers as developed by the CJEU since the famous cases AETR24 and Kramer.25 Art. 216(1) TFEU states: “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope”.

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This was expressed in more specific terms by the CJUE in Opinion 2/94,26 paragraph (24) and paragraph (25): “the principle of conferred powers must be respected in both the internal action and the international action of the Community. The Community acts ordinarily on the basis of specific powers which, as the Court held, are not necessarily the express consequence of specific provisions of the Treaty but may also be implied from them”.

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Both express and implied powers shall be derived from a specific provision of the Treaty, as distinct from the unspecific or residual power contained in what is now Art. 352 TFEU. External powers in the field of private international law shall therefore derive from Art. 81 TFEU, e on judicial cooperation in civil matters. Given that this article neither expressly mentions external action, nor contains references to EU-treaty making, the EU’s external powers in this policy field are based on implied powers. This was what the CJEU stated in Opinion 1/03 on the competence of the EC to conclude the new Lugano Convention.27 The Court stated that the EU’s external competence was based on Art. 65 TEC (the equivalent to Art. 81 TFEU) and in the existence of European internal legislation in respect of jurisdiction and enforcement of judgments in civil and commercial matters (Brussels I Regulation).28

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Opinion 1/13 of the CJEU concerned the 1980 Hague Convention.29 Therefore, it explicitly referred to the external competence of the EU in a subject matter covered by this Regulation: child abduction. The question answered by the Court was not whether the EU should access the Convention and since then act in name of the MS that were party to it, because it was only open to accession by States. The request concerned the acceptance of the accession of third States to the Convention: should this acceptance be a matter decided by the EU or by each MS? Before answering that question, the Court stated that the external competence on this subject exclusively corresponded to the EU. The Court separated the issue of the holder of the external competences from the issue of their exclusivity. Regarding whether competence lied with MS or with the EU, the Court ruled for the EU. The basis was Art. 81 TFEU, as expected. Regarding its exclusivity, the core of the Opinion, it has to be taken into account that the Convention does not fall within a field that is defined as exclusive a priori. However, EU competence shall be exclusive when its conclusion is provided for in a legislative act of the Union or is necessary to enable the UE to exercise its internal competence, or in so far as its conclusion may 23 24 25 26

Cremona in Pietro Franzina, p. 5. CJEU 31 March 1971, AETR, EU:C:1971:32. CJEU 14 July 1976, Kramer, ECLI:EU:C:1976:114. Opinion 2/94 of the Court of 28 March 1996, on the Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:1996:140. 27 Opinion 1/03 of the Court of 7 February 2006, on the Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, ECLI:EU:C:2006:81. 28 Cremona in Pietro Franzina, p. 7. 29 Opinion 1/13 of the Court of 14 October 2014, on the Convention on the civil aspects of international child abduction – Accession of third States – Regulation (EC) No 2201/2003 – Exclusive external competence of the European Union – Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish, ECLI:EU:C:2014:2303.

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affect common rules or alter their scope (Art. 3(2) TFEU). The CJEU considered that the conclusion of the international agreement “may affect EU rules or alter their scope” (paragraph 70). The Court proceeded firstly by looking at the degree to which the Convention and Brussels IIbis covered the same matters. The Court determined that it is not necessary for every element of the Convention to be reflected in the EU legislation as long as the Convention commitments are covered “to a large extent” by such EU legislation. As prof. Cremona underlines, the fact that the Regulation expressly refers to the Convention is important.30 The Regulation provides that it shall take precedence over The Hague Convention; however, in matters not governed by the Regulation, the Convention shall continue to apply between MS. As AG Jääskinen states, “the legislature has therefore chosen to refer to the provisions of an existing instrument of public international law rather than adopt provisions of European Union Law concerning the same matters”.31 The Court held that for the MS the two instruments form a “unitary body of rules” on the return of wrongfully removed children that has to be applied together. Secondly, the Court turned to the issue of the acceptance of new parties to the Convention. This part of the Opinion will be addressed below, in the commentary of Art. 96. Following the reasoning of the Court in this last opinion, it can be safely said that the external com- 20 petence in relation to the conclusion of future conventions on the matters covered by the Regulation belongs exclusively to the EU. For that, it doesn’t matter if not every element of the future convention has a reflection in the EU legislation, as long as the Convention commitments are covered “to a large extent” by such EU legislation.32

VI. The conflict between international conventions of private law During the XXth century, international-privatists developed high quality rules to deal with conflicts 21 between international conventions on private law. These rules aimed to achieve a systematic interpretation of the conventions in potential conflict and to build an “integrated system”. These scholars argued that the principles of the Law of Treaties contained in Art. 30 VCLT 1969 were exclusively intended to resolve conflicts of treaties which entailed obligations for States and which regulated relations between those States. Therefore, they should not be applied in relation to international conventions containing rules of private law, which were directly applicable for legal operators. When a conflict between two or more conventions on private law arises, other remedies shall be ap- 22 plied (F. Marjoros, B. Dutoit)33: (a) In the first place, the provisions of the Treaties in conflict shall be taken into account (special attention must be paid to disconnection clauses); (b) In the event that the Treaties are silent or contain simple clauses of compatibility, the “rule of maximum effectiveness” (“efficacité maximale”) shall apply. According to it, the international convention that best satisfies the common inspiring principle of the conflicting conventions must prevail (for example, in matters of child abduction, the convention that best satisfies the early return of the child to the State of their habitual residence); (c) If it is not possible to detect a “common inspiring principle”, the convention that regulates a more specific matter must prevail (lex specialis); (d) In the absence of the previous criterion, the most recent international treaty prevails (lex posterior). These rules must be corrected in the event that one of the “conflicting treaties” is a “strong treaty”, i.e. a treaty that includes fundamental human rights. Such treaties prevail, in any case, over other international treaties (C. Brière).34 For example, art. 6 of the 1950 European Convention on Human Rights shall prevail over other conventions regulating the effects of foreign judgments and shall permit the requested court to deny the recognition or enforcement of the foreign judgment if the right to a fair trial of the convict was not respected in the process of origin.35 30 31 32 33

Cremona in Pietro Franzina, p. 11. AG Opinion in case C-400/10 PPU, EU:C:2010:544 para. 40. Paragraphs 73 and 83 of the Opinion 1/13 of the Court of 14 October 2014, ECLI:EU:C:2014:2303. Majoros, tome I, p. 223 and seq., B. Dutoit/F. Majoros, Le lacis des conflits de conventions en droit privé et leurs solutions possibles, RCDIP, 1984, pp. 565–596. 34 Brière, Les conflits des conventions internationales en droit privé, LGDJ (2001) p. 169–202. 35 B. Dutoit/F. Majoros, Le lacis des conflits de conventions en droit privé et leurs solutions possibles, RCDIP (1984) pp. 565–596; Majoros, tome I, p. 223 and seq.

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Art. 94 Brussels IIter Relations with other instruments 23

One may wonder if these rules could not be applied to solve the problems of coordination between the EU Regulations and international conventions. The answer is no, at least from the point of view of the EU legal operators and EU law. Their actions shall be inspired by the principle of primacy of EU law and by how this principle is developed or excepted in the Regulation concerned. Neither Treaty law nor these rules on the coordination of private law conventions shall be taken into consideration because EU Regulations are not international conventions.36 They are rules coming from different systems. However, one shall not forget that every coin has two sides. What could be according to EU law, could be against Treaty law, and could lead to State responsibility if, by applying the Regulation, the obligations assumed by a MS under a Treaty are disregarded. But this is not the business of the European legislator and therefore should not be ours in this commentary either.

Article 94 Relations with other instruments 1. Subject to the provisions of paragraph 2 of this Article and Articles 95 to 100, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of Regulation (EC) No 2201/2003 which have been concluded between two or more Member States and relate to matters governed by this Regulation. 2. Finland and Sweden were provided with the option of declaring in accordance with Article 59(2) of Regulation (EC) No 2201/2003 and subject to the conditions set out in points (b) and (c) of that provision 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 that Regulation. Their respective declarations have been published in the Official Journal of the European Union as an annex to Regulation (EC) No 2201/2003. They may be withdrawn, in whole or in part, at any moment by the said Member States. 3. The rules of jurisdiction in any future agreement to be concluded between the Member States referred to in paragraph 2 which relate to matters governed by this Regulation shall be in line with those laid down in this Regulation. 4. The principle of non-discrimination on the grounds of nationality between citizens of the Union shall be respected. 5. Decisions handed down in any of the Nordic States which have made the declaration provided for in paragraph 2 under a forum of jurisdiction corresponding to one of those laid down in Chapter II, shall be recognised and enforced in the other Member States under the rules laid down in Section 1 of Chapter IV. 6. Member States shall send to the Commission: (a) a copy of the agreements and uniform laws implementing these agreements referred to in paragraph 3; (b) any denunciations of, or amendments to, the agreements and uniform laws referred to in paragraphs 2 and 3. Such information shall be published in the Official Journal of the European Union. I. Content of the provision . . . . . . . . . . . . .

1

II. Legislative history . . . . . . . . . . . . . . . . . III. General rule: the principle of supremacy of EU law . . . . . . . . . . . . . . . . . . . . . . .

2 4

V. The other exceptions provided by the Regulation . . . . . . . . . . . . . . . . . . . . . 24 VI. The “reactivation” of the conventions signed with the United Kingdom . . . . . . . . . . . . 26

IV. The Nordic exception . . . . . . . . . . . . . . 10

36 At least not from the point of view of EU law. From the point of view of Treaty law, a Regulation could be considered either as a domestic law of the MS or as an interregional convention between those MS.

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I. Content of the provision According to Art. 94, this Regulation supersedes all multilateral and bilateral conventions existing between MS at the time of entry into force of Brussels IIbis, relating to matters to which the Regulation applies, in so far as they cover such matters. The only exception is the Convention of 6 February 1931 on marriage, adoption and guardianship that will remain applicable to the mutual relations of Finland and Sweden under certain conditions.

1

II. Legislative history This provision corresponds to Art. 59 Brussels IIbis. Even if paragraph 1 of the provisions remains almost the same (there are only some technical adaptations), there are meaningful changes in relation to what was called “the Nordic option”. Finland and Sweden made use of the possibility provided by Regulation Brussels IIbis and declared that their mutual relations on the subject matter of the Regulation would be governed by the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden, together with the Final Protocol thereto. The new version of the Regulation states this fact and enables these States to withdraw their declarations at any moment.

2

In relation to the information regarding the agreements referred to in this article that shall be sent by 3 MS to the Commission (now in paragraph 6, corresponding to paragraph 3 of the former version), the obligation of its publication in the OJ has been included.

III. General rule: the principle of supremacy of EU law Paragraph (1) contains the general rule that this Regulation shall supersede bilateral or multilateral 4 conventions existing between MS. This provision enshrines the principle of supremacy of European Law.1 This principle obliges the authorities and courts of the MS to disapply domestic law which conflicts with EU law.2 It would be otherwise only if the relevant provisions of EU law expressly permit derogations by the Member States. Art. 94 only contains one relevant enabling provision as regards national laws: the 1931 Nordic Convention. To this extent, the situation is different from that under The Hague 1996 Child Protection Convention, whose Art. 52 expressly permits the retention or enactment of uniform laws of a regional nature.3 This provision does not list the Conventions concluded between MS superseded by the Regulation. 5 The present Article follows in this Art. 38 of the Draft Convention of 28 May 1998.4 In this regard, the Explanatory Report explained that the reason was that this Convention was the basic Convention in the matters covered by it.5 This statement cannot be made so emphatically today, because of the weight of The Hague Conventions in parental responsibility. However, the non-inclusion of a list of treaties affected by the Regulation has a main advantage: its avoids the necessity of adapting the provision on the occasion of each new adhesion to (or separation from) the EU. In fact, this trend has been followed by the EU law maker in Regulation Brussels I Recast, which does not use the list system anymore (used in Art. 69 Brussels I). Nevertheless, a list could be useful to illustrate that the number of bilateral treaties that are potentially applicable in this context is remarkable. These treaties can be divided into two different categories:

1 Case 6/64 Costa v ENEL [1964] ECR 585, at p. 593 et seq. 2 Case 106/77 Simmenthal [1978] ECR 629, at paragraphs 21 to 23. 3 Opinion Advocate General Kokott of 20 September 2007 (C-435/06), ECLI:EU:C:2007:543 footnote 30 in para. 57. 4 Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 112. 5 Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 112.

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Art. 94 Brussels IIter Relations with other instruments 6

a. Treaties between MS. All the treaties between MS whose material scope of application coincides with that of the Regulation shall be superseded by such Regulation. This principle finds no exception. This means that the Regulation does not only have priority over such conventions, but replaces them, in so far, completely, does not leave them any kind of subsidiarity. Paragraph (1) expresses this with regard to conventions existing at the time of entry into force of the previous version of the Regulation, that is, 1 August 2004. Because of the priority of EU law and the legislative history, later treaties between MS have not been concluded at all, not even containing additional provisions – this was permitted in former Art. 39 Brussels II.6

7

As a consequence of this strict formulation of the principle of authority, the list of conventions between MS no longer applicable is long. Most bilateral treaties between MS on recognition and enforcement of decisions do not exclude family matters from their scope of application. As a sample, treaties of Germany with Austria (6 June 1959), Belgium (30 June 1958), Greece (4 November 1961), Italy (9 March 1936), the Netherlands (30 August 1962) and Spain (14 November 1983) were potentially applicable to decisions on dissolution of marriage and parental responsibility and, as a consequence, have been superseded by the Regulation in regard to these matters.7 As another sample, agreement of Spain with Germany (14 November 1983), Austria (17 February 1984), France (28 May 1969) and Italy (22 May 1973) have also been superseded.8 Ireland’s and Malta’s lack of treaty policy on this matter is remarkable. Belgium and Poland had signed a bilateral agreement on the recognition and enforcement of decisions in relation to divorce (17 December 1986) that has also been superseded by the Regulation. There are also two multilateral treaties between MS on civil and commercial matters that has been superseded by the Regulation: the Agreement on Legal Assistance and Legal Relations between the Republic of Lithuania, the Republic of Estonia and the Republic of Latvia (11 November 1992) and the Convention between Belgium, the Netherlands and Luxembourg concerning judicial competence, concerning bankruptcy, and concerning the authority and enforcement of judicial decisions, arbitration awards and authentic deeds (24 November 1961). Even if this Convention was used as the starting document to draft the 1968 Brussels Convention, which excludes family matters from its material scope of application, these matters fell under the 1961 Convention.

6 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 1. 7 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 2. 8 There is also a bilateral convention between Spain and Romania (17 November 1997) on both international jurisdiction and extraterritorial validity of decisions, but its material scope of application excludes family relations.

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*

* *

*

* * *

* * *

*

* *

*

BE *

* * * *

* * *

AT

* * * *

*

* * *

*

* *

*

* * * * * *

* *

*

* * *

CZ

* * *

* *

*

*

CY

*

*

*

HR *

*

* * * *

BG *

*

*

* * *

*

*

EE

FI *

* * * *

* *

* *

FR * * * *

*

*

*

*

DE * *

* * *

*

*

*

* * * * *

EL

* * *

*

*

*

* * * * *

HU

* * * *

* *

* *

*

IT * * * *

*

*

*

LV

*

*

*

LT

*

LU * *

*

*

*

NL * *

* * *

*

*

*

PL * *9 * * * * *

*

PT

* *

*

* *

*

* *

* *

RO *

* *

* * *

* * *

*

*

* * *

SK

* *

*

* * *

*

* * * * *

SI *

*

*

* *

*

ES *

SE *

9 Convention between the Kingdom of Belgium and the People’s Republic of Poland on the Recognition of Decisions Relating to Divorce (17 December 1986). 10 The information from the existing treaties have been obtained from that most recently provided by MS in relation to Regulation Brussels Ibis: “First update of the information referring to Article 76 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”, OJ C 390, 24.11.2015, p. 10–23. Treaties whose text is accessible that are not applicable to family matters have not been included in the table.

Table 1. Treaties between MS superseded by Art. 94 in relation to matters governed by the Regulation.10

AT BE BG HR CY CZ EE FI FR DE EL HU IT LV LT LU NL PL PT RO SK SI ES SE

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b. Treaties between MS and third States. The general rule is also the supersession of these Treaties by the Regulation in the mutual relations between MS. The main treaties over which the Regulation takes precedence are mentioned in Art. 95: (i) The Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors; (ii) the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages; (iii) the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations and (iv) the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. This list is not exhaustive. The Regulation takes also precedence over other multilateral conventions on family matters such as The Hague Conventions of 1958, 2000 and 2007.

9

From the aforementioned, it is clear that the priority of EU law is still the rule. However, unlike what happened in relation to treaties between MS, this principle finds here some exceptions. These exceptions are detailed in the rest of this Chapter VIII of the Regulation.11 Strong and soft exceptions to the priority of EU law principle can be distinguished. Regarding what can be named “strong exceptions”, and according to Art. 94 (2), the “Nordic Convention” fully applies instead of the Regulation in mutual relations between Finland and Sweden. According to Art. 99, the treaties between MS and the Holy See are also fully applicable notwithstanding the Regulation. Other exceptions to the principle of priority of EU law are “softer”. According to Arts. 96 and 97, The Hague 1996 and 1980 Conventions are superseded by the Regulation, except for certain dispositions in very exceptional circumstances were both instruments have to come together into play. All these exceptions will be addressed in the subsequent notes of the Chapter.

IV. The Nordic exception 10

Art. 94 (2) permits an important exception to the principle of priority of EU law laid down in paragraph (1). According to the option given to them in Art. 59 of the former version, and supposedly, after having complied with the requirements set in paragraph (3) of that version, Finland and Sweden had declared, in the form required, that they would continue to apply the Agreement of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden which contains rules of international private law concerning marriage, adoption and custody (“the Nordic Agreement”) in the relations between each other and in place of the Regulation.12 As this paragraph states, the respective declarations of Finland and Sweden were published in the Official Journal of the European Union as an annex to Regulation (EC) No 2201/2003. The Regulation still leaves the door open to a future application of its rules over the Convention. Paragraph (2) ends by underlining that these declarations may be withdrawn, in whole or in part, at any moment by the said Member States. They are reproduced here:

11

Declaration of Sweden and Finland pursuant to Art. 36(2)(a) of Council Regulation (EC) No 1347/ 2000 of 29 May 2000 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses13 (a) Declaration of Sweden Pursuant to Article 36(2)(a) of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, 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, from the date on which the agreement of 6 February 2001 between the Nordic countries on the amendment of that Convention enters into force between Sweden and Finland. 11 In fact, dictum of Art. 94 refers to Arts. 95 to 100, but it should have referred to Arts. 96 to 99, given that Art. 100 regulates intertemporal conflicts, which nothing has to be with the kind of conflict dealt with in Chapter VIII and Art. 95 refers to conventions which are totally superseded by the Regulation when the case falls under the scope of the Regulation. 12 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 3. 13 OJ L 58, 28 February 2001, p. 22.

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(b) Declaration of Finland Finland exercises its right, under Article 36(2) of Regulation (EC) No 1347/2000 (Brussels II Regulation) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, to apply the Convention of 6 February 1931 between Finland, Iceland, Norway, Sweden and Denmark comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto (Nordic Convention on Marriage), in full in mutual relations between Finland and Sweden in place of the Brussels II Regulation, once the agreement signed on 6 February 2001 on amending the Nordic Convention on Marriage has entered into force between Finland and Sweden. According to the 1998 Explanatory Report on the Draft Convention, this privilege was already granted 12 in the Draft Convention on the basis of a political agreement reached in December 1997 with the European Union.14 This agreement was reached during the Council session under the Presidency of Luxembourg of 12–13 December 1997.15 The “Nordic States” considered that the application of the 1931 Nordic Agreement in their mutual relations was in line with Art. K.7 of the Treaty on European Union, which did not prevent the establishment of closer cooperation between two or more Member States in so far as such cooperation does not conflict with, or impede, that provided for in the Convention.16 However, that was not the opinion of the Council and the acceptance of the exception came conditioned to its alignment with EU law. As a consequence, the Nordic MS, when declaring their will to apply such Nordic Convention, had to undertake to no longer apply Art. 7(2) of the Agreement in their mutual relations and to review at an early date the rules of jurisdiction applicable in the framework of that Agreement in the light of the principle of non-discrimination on the grounds of nationality between citizens of the Union, promise that they have accomplished. This “Nordic exception” was going to be abolished in the new Regulation. In fact, it does not appear 13 in the Commission proposal.17 Finally, it was reintroduced during the negotiations within the Council18 and approved in the final text. The reason for its reintroduction is not clear from the documents available. A little hint is that this reintroduction came together with the proposal of a new recital whose text was: “It is recalled that for agreements with one or more third States concluded by a Member State before the date of its accession to the Union, Art. 351 of the Treaty on the Functioning of the European Union applies”, which has been finally included as Recital (91) of the Regulation. Art. 351 TFEU reads as follows: “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of

14 Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 113. 15 Presidency conclusions, note 60: “The European Council also welcomes the political agreement reached on the basic principles of the draft Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters (Brussels II Convention); this Convention is likely to play an important part in the lives of the citizens of the Union. It asks that work on this draft should be completed under the United Kingdom Presidency”. Available at: https://www.consilium.europa.eu/media/21114/luxembourg-european-council.pdf. 16 Declaration, to be annexed by any of the Nordic Member States entitled to make a Declaration within the meaning of Article 38(2) of the Nordic Convention. 17 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/ 2016/0411 final – 2016/0190 (CNS). 18 JHA Council Decision of 7 December 2018, published in the Note from the General Secretariat of the Council to the Delegations of 12 December 2018, doc. N. 15401/18 JUSTCIV 130.

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Art. 94 Brussels IIter Relations with other instruments common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States”. 14

To better understand the reasons why the EU accepted to first include and then maintain this strong exception to the principle of supersession, it shall be taken into account that Nordic legislative cooperation in civil and commercial matters has a long history. It started in the 19th century and intensified after a large meeting of jurists in 1872 in Copenhagen. It has led to the adoption of a large number of treaties on international jurisdiction and extraterritorial effectiveness of decisions in various matters (in addition to marriage, adoption and guardianship, which are covered by the 1931 Nordic Convention, there are also treaties on maintenance, bankruptcy, succession, service and taking of evidence, and recognition and enforcement of decisions in civil matters). On the question of applicable law, the path of substantive harmonisation was preferred (e.g. there are uniform laws on matters such as contracts in general, contracts of sale, marriage, agency or commission and on some issues relating to maritime law and copyright). As a consequence, conflict of laws rules are of little importance (the law of the forum is usually applied).19 The Nordic conventions are limited to relations between Nordic citizens domiciled in the Nordic countries, a term that shall be understood as the place of habitual residence of a person.20

15

Regarding the relation of these Nordic conventions and EU law, their scope has diminished since the assumption of competence by the EU in the private international law domain after the entry into force of the Amsterdam Treaty on 1 May 1999. The rules of these Nordic conventions must be coordinated with those of European law, since the States party to them which are also parties to the EU, i.e. Finland and Sweden (Denmark, in accordance with the special protocol annexed to the TEC at the time and now to the TEU, is not bound by European legislation in this area), are obliged to respect European law. To “save” these conventions, the other Nordic countries have agreed with Finland and Sweden to change their texts and adapt them to European rules, with the EU agreeing that these conventions, once they have been adapted, will continue to apply to their mutual relations.21

16

This Art. 94 (2) of the Regulation and its predecessors are the first typical example of such necessary coordination between European private international law and its “Nordic” correspondence. The Brussels II Regulation, in its first version, as well as the “Draft Convention” that never entered into force, introduced some rules that were incompatible with the Nordic Convention. Along with this, Brussels II explicitly stipulated in its Art. 36 (1) the principle of supremacy, which meant replacing the application of conventions existing at the time of their entry into force by the rules of the Regulation in relations between Member States. In principle, this would prevent the application of the Convention between Finland and Sweden. The desire of these two countries to save the Nordic system was translated by the special derogation stipulated in Art. 36 (2) Brussels IIbis, which allowed them to declare that the 1931 Nordic Convention will continue to apply, in their mutual relations, instead of the Regulation. As the CJUE stated in relation to Brussels IIbis, the scope of application of this exception shall be interpreted narrowly: the 1931 Nordic Convention is the one and only instrument covered by the Nordic exception. The CJUE ruling was made in the context of an appeal brought by Ms C, the mother of two children, against the decision of the Administrative Court of Oulu (Finland) confirming the decision of the Finnish police ordering the handing over of her children to the Swedish authorities for them to be taken into care and placed in a foster family.22 The national court asked essentially whether another legal instrument derived from Nordic cooperation on the recognition and enforcement of taking into care decisions could be applied, given that the Regulation takes account of the Nordic cooperation in the matters falling under the scope of application of the Regulation. The CJEU answered negatively: the 1931 Convention is the only provision derogating from the rule of primacy of the Regulation set out in paragraph (1) of the provision. It is, as such, to be interpreted strictly.23 No other instrument derived from Nordic Cooperation appears amongst the exceptions listed ex-

19 20 21 22 23

M. Bogdan, p. 197. M. Bogdan, p. 198. M. Bogdan, p. 199. ECJ Case C-435/06 C, Judgement of 27 November 2007 [2007] ECR I-10141, ECLI:EU:C:2007:714. ECJ Case C-435/06 C, Judgement of 27 November 2007 [2007] ECR I-10141, ECLI:EU:C:2007:714 para. 60.

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haustively in the Regulation. Applying the exception by analogy to other instruments of cooperation between Nordic countries would run counter to the principle of supremacy of European Law.24 In the same vein of its strict interpretation, and in accordance with the aforementioned political 17 agreement of December 1997, this exception to the general application of the Regulation shall apply only when both spouses are nationals of a Nordic Member State and their habitual place of residence is situated within one of those States.25 These connecting factors shall be present by the time of the marriage and by the time of separation and divorce.26 For that reason, the Nordic Member States which make use of the option to continue applying the Nordic Agreement undertook in a statement annexed to the Draft Convention to cease applying Art. 7(2) of that Agreement in as much as the rule is based on the nationality of only one spouse and also undertake to revise the grounds of jurisdiction applicable under that Agreement in the near future in the light of the principle of non-discrimination on grounds of nationality (see Art. 8, paragraph 47).27 Also, the material scope of application of the Nordic Convention shall be interpreted strictly: it ap- 18 plies to matters related to marriage, adoption and guardianship.28 As Finnish authorities underlined in case C-435/06 mentioned above, this Convention does not apply to protective measures taken by the State or other administrative bodies on taking into care and placement of children. This derogation from the principle of primacy of EU law comes at a price: the same article requires 19 that the principle of non-discrimination on grounds of nationality between EU citizens shall be respected by the Nordic Convention and also that, in any future agreement between these MS, the rules of international jurisdiction shall be aligned with the rules provided for in the Regulation. An agreement between the five Nordic countries of 6 February 2001 has already amended the Nordic Convention to adapt its grounds of jurisdiction to the Regulation. The problem with these rules was that they were based on the nationality of only one spouse (Art. 7(2) Nordic Agreement). However, scholars have underlined that, in fact, this agreement does not make the Convention to fully respect the principle of non-discrimination on grounds of nationality. To do so, it should either disappear, or extend its personal scope of application to all residents of the Nordic countries, irrespective of their nationality, or have exactly the same content as the Regulation. Since the Convention only applies to citizens of Nordic countries, it is clear that Finnish and Swedish citizens are not subject to the same rules as other EU citizens.29 No change was necessary in relation to recognition and enforcement rules, given that both Sweden and Finland declared that the grounds for refusal of recognition contained in the Nordic Agreement were applied in practice in a manner consistent with the Regulation. Moreover, the Regulation and its predecessors establish another rule to assure that jurisdiction rules 20 of the Nordic Convention were in line with EU law: according to paragraph (5) of this Art. 94, Finnish and Swedish decisions will not be recognised and enforced in the other Member States using the system of laid down in Chapter II of the Regulation unless they have been handed down in a forum of jurisdiction corresponding to one of those provided for in the Regulation. This rule introduces a control with regard to decisions handed down by the courts of other Member States that has been considered as inadmissible in a scenario of mutual trust such as the European one.30 It is a virtually useless control (unless the court of origin “misapplies” the rules of jurisdiction of the Nordic Convention). In such a case of misapplication, will the decision be recognized under another applicable instrument or will recognition be rejected? The literal interpretation of the provision does not throw any light on this legal question. Neither does the rest of the Regulation, or the history of the rule, because its wording is the same since Art. 38 (2) (d) of the Draft convention. According to the case law of the CJEU, this exception shall be interpreted strictly.31 24 Opinion Advocate General Kokott of 20 September 2007 (C-435/06), ECLI:EU:C:2007:543 para. 56. 25 Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 113. 26 Frantzen, Party Autonomy in Norwegian Law – Matrimonial Property and Succession, Yearbook of PIL, vol. 12 (2010), p. 484. 27 Borrás, Explanatory Report on the draft Convention of 28 May 1998, note 113. 28 “Tutelle” in the french version the instrument. 29 M. Bogdan, p. 199. 30 M. Bogdan, p. 199. 31 ECJ Case C-435/06 C, Judgement of 27 November 2007 [2007] ECR I-10141, ECLI:EU:C:2007:714 para. 60.

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The Nordic countries’ only advantage has come in the area of extraterritorial validity of decisions in the matters covered by the 1931 Nordic Convention. The adaptation to European rules has not meant a step backwards in terms of private international law in these countries. For example, the Brussels I system of enforcement of judgments provided for the requirement of exequatur, which did not exist in the corresponding Nordic convention, whereby judgments of a Nordic country were enforced directly, without any further proceedings, by the authorities of the requested state. If the Nordic exception had not been included, and, provided that the Regulation was temporally and substantively applicable, Finland and Sweden must have applied the Regulation as regards the recognition and enforcement of decisions relating to parental responsibility and must have disapplied any domestic provisions which derogate from them. This conclusion would have been regrettable as regards the obviously well-developed administrative cooperation between Finland and Sweden which supports the welfare of children.32 The exception in Art. 94 (2) has allowed the exequatur requirement not to be introduced between the Nordic countries in respect of judgments on parental responsibility for joint children, since Art. 94 only required the adaptation of the rules of international jurisdiction, and not those of recognition and enforcement. This has very important consequences. The Swedish Supreme Court, for example, ruled that the public policy exception cannot be used against the recognition in Sweden of a judgment of another Nordic country on the basis of the 1931 Nordic Convention. The case concerned an Icelandic decision on the adoption of a Nordic citizen by another Nordic citizen. The court’s decision was based on the fact that the Nordic Convention of 1931 stipulates that the decision is to be recognised “without examining whether they are just or right”.33

22

According to J. Pirrung, the disadvantage of this exception does not principally concern the relations between Finland and Sweden, but the other MS and it lies in the consequence of paragraph (5). According to it, that judgments originating from these two Member States, when presented for recognition in other MS, 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, have been indicated in the judgment) with the provisions of Chapter II of the Regulation. In substance, according to the adaptation of the Nordic Convention dating 6 February 2001, 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, these agreements could not include rules on the administrative decisions regarding the taking into care and placement of children in a foster family, not included in the scope of application of 1931 Nordic Convention.34

23

Finally, the EU law-maker, contrary to the spirit of Art. 351 TFEU, let these countries sign future agreements on the matters governed by the Regulation. This right it subject to the condition that the rules of such future agreements shall be in the line with those laid down in the Regulation. This waive to the EU external competence hides a very powerful reason: this will make EU rules to apply even in the Nordic States that are not a MS.

V. The other exceptions provided by the Regulation 24

In addition to the Nordic exception, which, of course, prevails upon the general rule of paragraph (1), the principle is applicable “subject to the provisions of Arts. 95, 96, 97 and 99”. This is a pure clarification following from the principle of lex specialis.35

25

Regarding Art. 95, the conventions mentioned in such provision do not apply at all when the provisions of the Regulation are applicable in a concrete case. As regards Art. 96, 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 such Art. 96, paragraph (a) and, eventually, (b) are fulfilled. This is a special rule that, in any event, prevails in relation to Art. 94 (1), as in this case there is no general necessity 32 Opinion Advocate General Kokott of 20 September 2007 (C-435/06), ECLI:EU:C:2007:543 para. 60 and 61. 33 Nytt Juridiskt Arkiv, 1978 C 480. 34 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 4; ECJ Case C-435/06 C, Judgement of 27 November 2007 [2007] ECR I-10141, ECLI:EU:C:2007:714 para. 60. 35 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 6.

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for the Regulation to supersede in this relationship.36 As regards Art. 97, its inclusion is highly relevant and brand new. Art. 98 describes the limits of the superseding effect according to Art. 94 (1): there is no real use of mentioning this Art. In Art. 94 (1). Art. 94 (2) is somewhat incomprehensible and, in any case, covered by the reference to Art. 95 in Art. 94 (1). Art. 99 clearly prevails upon Art. 94 (1). The reference to Art. 100 as an intertemporal rule is of no use in this context. The reference, if at all, might have been “subject to the other provisions of this chapter”, which is self-evident.37

VI. The “reactivation” of the conventions signed with the United Kingdom After Brexit, the conventions between MS and the United Kingdom containing provisions on interna- 26 tional jurisdiction and/or recognition and enforcement of decisions have come again into play. Given that the Trade Agreements between the EU and the UK has no provisions on civil judicial cooperation, the relations in this area remain to be ruled by the “Exit Agreement” of 2020. According to it, Brussels II bis (and ter) is not applicable in the UK since the 30 January 2020. From that date, earlier treaties to which a MS and the United Kingdom are a party have revived completely in the relations between the United Kingdom and that EU MS. These treaties include The Hague Conventions mentioned in Arts. 95, 96 and 97, but also bilateral agreements. Regarding bilateral conventions, many MS had signed bilateral conventions with the United King- 27 dom on recognition and enforcement of decisions. If no other conventional instrument is applicable, the bilateral treaty will govern again the mutual relations between that MS and the UK. This happens in relation to the dissolution of marriage, where no multilateral convention is applicable. Regarding parental responsibility, the scope of application of these bilateral conventions might collide with that of the 1996 and 1980 Hague Conventions and 1980 Luxembourg Convention. The applicable instrument shall be determined case by case after the study of the disconnection clauses of the agreements in collision. Those bilateral conventions are the following: – Austria (14 July 1961): Convention between Her Majesty in respect of the United Kingdom of Great Britain and Northern Ireland and the Federal President of the Republic of Austria for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters. – Belgium (2 May 1934): Convention between His Majesty the King of Great Britain and His Majesty the King of the Belgians for the reciprocal enforcement of judgements. APPLICABLE to family matters including divorces (Art. 4 (3) contains particular rules for the control of international jurisdiction on these matters). – Germany (14 July 1960): Convention between Her Majesty in respect of the United Kingdom of Great Britain and Northern Ireland and the President of the Federal Republic of Germany for the Reciprocal Recognition and Enforcement of Judgements in Civil and Commercial Matters. – Italy (7 February 1964): Convention between the United Kingdom of Great Britain and Northern Ireland and the Republic of Italy for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters. The UK is also a party to other two general conventions on international cooperation in civil and commercial matters but they are not applicable to family matters: the Convention of 18 January 1934 between the United Kingdom and the French Republic providing for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters38 and the Convention of 17 November 1967 between the United Kingdom and the Netherlands providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters.39 36 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 8. 37 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 59 note 10. 38 Family matters are excluded of the material scope of application of the Convention by its Art. 2 (3) (b): “Nevertheless, the provisions of the present convention do not apply: (…) to judgments given in matters of status or family law (including judgements in matrimonial causes or concerning the pecuniary relations between the spouses as such)”. 39 Family matters are excluded of the material scope of application of the Convention by its Art. 2 (2) with a very similar dictum to the Convention with France.

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Art. 95 Brussels IIter Relations with certain multilateral conventions 29

As regards the multilateral conventions included in Art. 95, 96 and 97 and any others not mentioned in the Regulation to which the UK and a MS is a party, the UK is a third State. The UK is a party to the 1996 and 1980 Hague Conventions and to the 1980 Luxembourg Convention. The rules on international jurisdiction of the 1996 Hague Convention will apply to the mutual relations between a MS and the UK after Brexit, because there are no bilateral treaties on this sector between a MS and the UK. Regarding the rules on recognition and enforcement of this Convention, their applicability depends on their priority over the aforementioned bilateral conventions. The 1980 Hague Convention on child abduction and the exchange of notes between MS and the UK in the frame of such Convention also apply, given that no bilateral instruments on the same matter are in force. The 1980 Luxembourg Convention has almost no relevance in practice. Its applicability shall be checked in a case-bycase basis in view of disconnection clauses of such Convention and potentially applicable bilateral treaties. When the quaestio iuris is international jurisdiction, these agreements will apply directly if the situation falls under their scope of application, given that none of the bilateral agreements mentioned contains rules on this sector of private international law. The following table summarizes the present panorama of agreements between the United Kingdom and MS on the matters of dissolution of marriage, parental responsibility and child abduction. International Jurisdiction

Recognition and enforcement

Substantive rules

Dissolution of Marriage

NONE

Bilateral agreements between the UK and Austria (1961), Belgium (1934), Germany (1960), Italy (1964). 1970 HCCH Convention

NONE

Parental responsibility

1996 HCCH Convention 1980 HCCH Convention

1996 HCCH Convention 1980 Luxembourg Conv.

1980 HCCH Convention

Table 2. Conventions between the United Kingdom and MS on the matters covered by the Regulation. 30

The UK is also a party to the 1980 Luxembourg Convention (European Convention n. 105 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (ETS No. 105).40 As a consequence, it can be invoked again in the relations between the UK and a MS. As it was mentioned before, all MS are a party to this Convention. However, the application of this convention in these relations is expected to be anecdotic: the 1996 and 1980 HCCH Conventions have de facto superseded the 1980 Luxembourg Convention.

31

The UK also ratified in 1975 the Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations.41 It has become applicable to the mutual relations of the UK with the MS that are a party to this Convention (Cyprus, Czech Republic, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia and Sweden).

Article 95 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;

40 https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=105. 41 https://www.hcch.net/en/instruments/conventions/status-table/?cid=80.

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(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. I. Introductory remarks . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

1 5

III. Problems of application . . . . . . . . . . . . 1. The Hague Convention of 1961 on the protection of minors . . . . . . . . . . . . . . . 2. The Luxembourg Convention of 1967 on the validity of marriages . . . . . . . . . . . . . . .

7 7

3. The Hague Convention of 1970 on the recognition of divorces and legal separations . . . . 11 4. The Luxembourg Convention of 1980 on the recognition and enforcement of custody decisions . . . . . . . . . . . . . . . . . . . . . . 12

9

I. Introductory remarks Among MS, the Regulation takes precedence over four multilateral conventions, specifically listed in 1 Art. 95, insofar as the case deals with matters identical to those governed by the Regulation.1 Given that the Article comes directly from Art. 60 Brussels IIbis, the mentioned conventions are in fact completely inapplicable between MS since 1 March 2005. It is necessary to underline that the conventions are not affected, as far as they concern other matters beyond the scope of application of the Regulation (Art. 98). 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. This Article is a clarification, for the sake of clarity, of the EU law primacy principle. It could have been 2 omitted with no consequences. Even if some of these Conventions were signed by MS before their entry into the EU, Art. 351 TFEU does not allow MS to apply these Conventions in their mutual relations but only in relation to third States.2 They are considered as a part of national law and as such they are superseded by EU law unless an explicit rule derogates this general principle. In addition, these Conventions had no relevance anyway, not even in the mutual relations between a MS and a third State that are both parties to one of these Conventions. Sometimes, it is hard for a MS to pay tribute to EU law and to disregard the application of interna- 3 tional treaties. This attitude could be considered as a breach of the treaty by the rest of States party to it and could even lead to international responsibility for the MS. However, the priority of EU law over the Conventions listed in Art. 95 does not seem to be contrary to the own rules on relations with other instruments of these Conventions. All of these Conventions contain provisions that permit signatory States to institute more favourable solutions in their mutual relations. If the Regulation is considered, as it is, as a way of narrower cooperation, its preceding character is, in substance, in conformity with those provisions. Particularly, these provisions are contained in Art. 13 of 1967 Luxembourg Convention on the Validity of Marriages, Art. 18 of 1970 Hague Convention on the Recognition of Divorces and Legal Separations, Art. 19 and 20 (2) of 1980 Luxembourg Convention on Recognition and Enforcement of Decisions concerning custody of children and its restoration. Art. 18 (2) of the 1961 Hague Convention on the protection of minors declares the convention to be without prejudice to former conventions, is no real obstacle, as nowadays it is to be interpreted taking into account Art. 51 of the new 1996 Hague convention on the same matters. This provision states that, in relations between the Contracting States, the 1996 Convention shall replace the 1961 Convention (and also the Convention governing the guardianship of minors, signed at The Hague 12 June 1902), without prejudice to the recognition of measures taken under the Convention of 1961 mentioned above. There is only a region in the world were this 1961 Convention has not been superseded by the 1996 Hague Convention because it is a part of a state that is not a contracting party: the Chinese region of Macao. The 1961 Convention applies to the Special Administrative Region of Macao only, as a result of an 1 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 60 note 1. 2 Rosas, The Status in EU Law of International Agreements Concluded by EU Member States, 34 Fordham Int’l L.J. 1304 (2011).

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Art. 95 Brussels IIter Relations with certain multilateral conventions extension made by Portugal. When Macao was restored to the People’s Republic of China on 20 December 1999, China declared that the Convention will continue to apply for Macao. 4

Finally, Art. 95 does not impede the application of these Conventions in the relations between a MS and a third State when both are a party to that Treaty and the case does not fall under the scope of application of the Regulation. In that event, the Convention is regarded simply as a rule of the national law of that MS, and therefore as a rule that can be applicable given its subsidiary character in relation to European law.

II. Legislative history 5

Art. 95 remains almost identical to Art. 60 of Brussels IIbis. The only difference is that the new version does not include the letter (e) of precedent Art. 60. Such letter referred to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The elimination of this reference is complemented by the inclusion of Art. 96, devoted to the relations between the 1980 Hague Convention and the Regulation and that will be analysed below.

6

The elimination of the 1980 Hague Convention from the list of instruments completely superseded by the Regulation is pertinent. It is coherent with the system of coordination between both instruments that was already applied with Brussels IIbis. According to recital 17 Brussels IIbis, in cases of wrongful removal or retention of a child, The Hague Convention of 1980 would continue to apply as complemented by the provisions of the Regulation. The whole system of child abduction of the Regulation was, in its precedent version, and is, in the new one, based on the foundations of the 1980 Hague Convention.

III. Problems of application 1. The Hague Convention of 1961 on the protection of minors 7

The Hague Convention of 1961 on the protection of minors (letter a) was ratified by eleven Member States (Austria, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal and Spain) and also by Switzerland and Turkey. The Convention also applies to the Chinese region of Macao, as it was stated above. Right now, this Convention has very little importance.3 In the relations between contracting MS, the Regulation prevails. In the relations between contracting MS and Switzerland, Turkey and Macao, this Convention could still be of application under art. 351 TFEU. It was signed by some of the contracting MS before the date of their accession to the EU: Austria signed in 1966 and acceded to the EU in 1995, Latvia signed in 2001 and acceded to the EU in 2004, Lithuania signed in 2001 and acceded to the EU in 2004, Poland signed in 1993 and acceded to the EU in 2004 and Portugal signed in 1967 and acceded to the EU in 1986. However, regarding Turkey and Switzerland, The Hague Convention of 1996 on the protection of children takes precedence (Art. 51 of the 1996 Convention mentioned above).

8

The 1961 Convention only remains applicable to the mutual relations between a contracting MS and the region of Macao. For example, a child with habitual residence in Portugal who holds a Macau passport, the jurisdiction of Portuguese courts is to be based on Art. 1 of the 1961 Hague Convention, and not in Art. 7.1 of the Regulation.4 This case needs to be distinguished from a quite different one. As regards a child with Portuguese nationality and whose habitual residence is in the city of Macao, Portuguese courts may have jurisdiction to take measures for the protection of the infant according to Art. 4 of 1961 Hague Convention, but this is not a prerogative of Portugal under art. 351 TFEU. This is just a consequence of the fact that this case falls outside the personal scope of the Regulation (only applicable in matters of parental responsibility to children habitually resident in another Member State). In the same vein, a Spanish court would have jurisdiction to take measures over a 3 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 60 note 2. 4 Andrae, IPRax 2006, 82, 84, Benicke, IPRax 2013, 51, against Hau in Brütting/Helms (eds.), FamFG (3. ed.), § 99 note 20.

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Spanish resident in Macao according to Art. 4 of the 1961 Convention, even if Spain does not have the right to apply the Convention over the Regulation under art. 351 TFEU.5 The Regulation would not be applicable to this case, so Spain would apply the 1961 Convention as a part of its national law. 2. The Luxembourg Convention of 1967 on the validity of marriages The Luxembourg Convention of 8 September 1967 on the recognition of decisions concerning the 9 validity of marriages (letter b) was concluded by the International Commission on Civil Status (“Commission Internationale de l’État Civil” or “CIEC”). Under the Convention, a decision given in a Contracting State that fulfils the conditions laid down in Art. 1 is to be recognised in the other Contracting States as carrying the same authority as in the State where it was given. Under Art. 7, recognition applies only to the main provisions of the decision relating to the matrimonial bond itself, especially to those granting divorce, nullity and legal separation, and not to accessory or interim provisions relating, for example, to questions of family property. The term “recognition” also includes the recording of the decision in civil status registers.6 The territorial scope of the 1967 Convention was very limited for MS even before the inclusion in the list of Art. 95 and earlier in Art. 60 Brussels II. In fact, it has been only ratified by Austria and the Netherlands, and The Netherlands denounced with effect of 13 September 2001.7 As a consequence, there was no need to include the Convention in the list, given that no “relations between Member States” were possible. The inclusion in Art. 95 is therefore preventive, to be activated only if another MS enters into the Convention, what is highly unlikely because MS have the Regulation and there is only another State (Turkey) that is a party. Regardless of Art. 95, the 1967 Convention can still be applicable to the relations between Austria and Turkey. As a consequence, Austrian judges might apply the 1967 Convention to recognize a divorce judgment given in Turkey. The 1967 Convention applies because the scope of the Regulation is limited to judgments given in a MS. The Convention is also limited to decisions issued in a contracting State. As a consequence, there is no possible conflict between the scope of application of the Regulation and the 1967 Convention and makes unnecessary to bring up art. 351 TFEU.

10

3. The Hague Convention of 1970 on the recognition of divorces and legal separations The same result as described above applies to The Hague Convention of 1 June 1970 on the recogni- 11 tion of divorces (letter c). This Convention was ratified by eleven MS (Cyprus, Czech Republic, Estonia, Finland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovakia and Sweden). The Convention is also applicable in Albania, Australia, Denmark, Egypt, Moldova, Norway, Switzerland, United Kingdom and the Chinese region of Macao, for the same historical reasons explained in relation to The Hague Convention of 1961. This Convention deals with the recognition of all decisions in the field of divorces and legal separations, even those emanating from administrative, religious or legislative authorities. In this sense, its scope of application is quite wide. On the other hand, it is concerned only with the recognition of such decisions, leaving to each State the task of deciding whether their enforcement requires proceedings, and if so, of what kind.8 Given that the Regulation does not apply to the recognition of private divorces -unless the agreement has been registered by a public authority (Recital 14)- the Convention could apply, for example, to the recognition in the Netherlands of a private religious divorce issued by a sharia court in Cyprus.9

5 Spain signed the 1961 Convention the 27 May 1986 and had acceded to the EU the 1 January of the same year. 6 CIEC, Explanatory Report on the Convention n.11 on the recognition of decisions relating to the matrimonial bond signed at Luxembourg on 8 September 1967, p. 6. 7 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 60 note 3. 8 Bellet/Goldman, Explanatory Report of the Convention on the Recognition of Divorces and Legal Separations, Hague Conference on Private international law, 1971, note 6. 9 Judgment of the Court (First Chamber) of 20 December 2017, case C-372/16, ECLI:EU:C:2017:988, Soha Sahyouni v Raja Mamisch.

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Art. 96 Brussels IIter Relation with the 1980 Hague Convention 4. The Luxembourg Convention of 1980 on the recognition and enforcement of custody decisions 12

The 1980 Luxembourg Convention (letter d) was drafted to deter international child abduction and to secure the return of children wrongfully removed or retained from their home country. It was born as a relevant instrument that attracted support from both common law and civil law countries. It is in force for all EU MS with the exception of Slovenia and, on the other hand, for the following States: Andorra, Iceland, Liechtenstein, Macedonia, Moldova, Montenegro, Norway, Serbia, Switzerland, Turkey, Ukraine and the United Kingdom.10 However, its success was rapidly undermined by the uptake of far reaching reservations.11 Moreover, the 1980 Hague Convention on child abduction came into play. Both The Hague Convention and the European Convention have the same purpose but different ways of achieving it. The European Convention works on the principle of the mutual recognition and enforcement of orders made in contracting States. Accordingly, it requires the existence of a court order issued in the contracting State of the habitual residence of the child which can be recognized and enforced in the contracting State where the child has been abducted or is retained. The Hague Convention does not need this prior order: the proceedings can take place in the country where the child is located. For this reason, the European Convention was rarely used in abduction cases where a child’s return was sought. Its real application by MS was very limited even before its inclusion in Art. 60 Brussels II and now Art. 95 Brussels IIter. It has more frequent application to the enforcement of access orders and other decisions related to custody: in this field it can still apply to relations with the rest of contracting States, above all in relation to the contracting States which are not a party to the 1996 Hague Convention on the protection of children, i.e. Andorra, Iceland, Liechtenstein, Macedonia12 and Moldova.

Article 96 Relation with the 1980 Hague Convention 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 continue to apply as complemented by the provisions of Chapters III and VI of this Regulation. Where a decision ordering the return of the child pursuant to the 1980 Hague Convention which was given in a Member State has to be recognised and enforced in another Member State following a further wrongful removal or retention of the child, Chapter IV shall apply.

I. Content of the provision 1

The Hague Convention of 25 October 1980 on child abduction is in force for all MS (including Denmark) and 74 other States (Albania, Andorra, Argentina, Armenia, Australia, Bahamas, Barbados, Belarus, Belize, Bolivia, Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Chile, China (Hong Kong and Macao), Colombia, Costa Rica, Croatia, Cuba, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Gabon, Georgia, Guatemala, Guinea, Guyana, Honduras, Iceland, Iraq, Israel, Jamaica, Japan, Kazakhstan, Lesotho, Mauritius, Mexico, Monaco, Montenegro, Morocco, New Zealand, Nicaragua, North Macedonia, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Republic of Korea, Republic of Moldova, Russian Federation, Saint Kitts and Nevis, San Marino, Serbia, Seychelles, Singapore, South Africa, Sri Lanka, Thailand, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Ukraine, United Kingdom of Great Britain and Northern Ireland, Uruguay, Uzbekistan, Venezuela, Zambia and Zimbabwe). 10 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 60 note 5. 11 McEleavy, Luxembourg, Brussels and now The Hague, The International and Comparative Law Quarterly, vol. 59, note 2, 2010, pp. 505–519, p. 508. 12 North Macedonia signed the 1996 Hague Convention the 9 December 2019, but it has not ratified it yet.

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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 between all 101 contracting States. Since according to the Opinion pursuant to Art. 218 (11) TFEU of the CJEU (Grand Chamber, Opinion 1/13 of 14 October 2014),1 the EU 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 MS.2

2

The Convention concerns the prompt return of children wrongfully removed (Art. 1 and 12 of the Convention) in order to re-establish a former parental responsibility relationship after its violation by a person who did not have complete and sole custody. A whole new Chapter (III) of the Regulation has been devoted to Child Abduction.

3

Art. 96 looks like the putting in writing of a new exception to the principle of primacy of EU law. But one shall not be fooled by appearances, the principle of primacy remains untouched. The rule, which was already enshrined in recital 17 of Brussels IIbis Regulation, has more of international comity than of reality. The Brussels IIter rules on international child abduction constitute a coherent normative body that do not only “complement” the 1980 Hague Convention but trace a parallel path to be followed when a child is abducted from a MS to another MS or retained in a MS different of the MS of their habitual residence.

4

II. Legislative history One of the main objectives of Brussels IIbis was to deter child abductions between Member States and to protect the child from their harmful effects by establishing procedures to ensure the child’s prompt return to the Member State of habitual residence immediately before his/her abduction. In this respect, the Regulation complemented the 1980 Hague Convention by clarifying some of its aspects, in particular the hearing of the child, the time period to render a decision after an application for return has been lodged and the grounds for not returning the child. It also introduced provisions governing conflicting return and non-return orders issued in different Member States.

5

The relations between both instruments were governed by letter e) of Art. 60 on “Relations with cer- 6 tain multilateral conventions”. This article stated that the Regulation should take precedence over The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction when the private international relation was only related to Member States and it concerned matters governed by the Regulation. This was completed by Recital 17, which stated that The Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of the Regulation. It continued by explaining that 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 but that 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. In the new version of the Regulation, the EU child abduction regime has been given greater weight. Art. 11 Brussels IIbis has been replaced by a whole new Chapter (Chapter III). Consequently, letter (e) of Art. 60 of Brussels IIbis has also been replaced by a whole Article on the relations between the Convention and the Regulation. This new provision is to be welcomed, as it reflects more closely the complementary relationship established between The 1980 Hague Convention and the Regulation, consisting in the modification of certain aspects of the Convention for its application between Member States, in addition to the complementary use of its rules on recognition and enforcement.

1 EU:C:2014:2303. 2 Pirrung in Magnus/Mankowski, Brussels IIbis(2017), Art. 60, note 6.

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Art. 96 Brussels IIter Relation with the 1980 Hague Convention

III. The Opinion 1/13 of the CJEU on the EU and the 1980 Hague Convention 8

The question answered by the Court in Opinion 1/13 concerned the acceptance of the accession of third States to the 1980 Hague Convention: should this acceptance be a matter decided by the EU or by each MS?3 While providing its opinion on who should hold the external competence on child abduction matters, the court made some interesting remarks on the relation between the Regulation and the Convention. The CJEU considered that the competence to decide on this matter should lie within the EU because it “may affect EU rules or alter their scope” (paragraph 70). To justify this assertion, the Court studied the degree to which the Convention and Brussels IIbis were related.4 As AG Jääskinen states, “the legislature has therefore chosen to refer to the provisions of an existing instrument of public international law rather than adopt provisions of European Union Law concerning the same matters”.5 The Court held that for the MS the two instruments form a “unitary body of rules” on the return of wrongfully removed children that has to be applied together.

9

However, this does not mean that their regimes are exactly the same. In relation to the issue of the acceptance of new parties to the Convention, the Court found that it should rely on the EU. If the MS were to take individual decisions on the acceptance of new State parties, common rules of the EU system would be affected. Namely, cases may arise involving two MS and a third State, and if the EU MS have different positions on the application of the Convention to that third State, there would be a risk of undermining the uniform and consistent application of the Regulation (paragraph 89). As the AG said in its view on the Opinion 1/13, Brussels IIbis (and now Brussels IIter) builds upon the Convention, but it forms closer ties between MS which change the balance between the requested State and the State of origin. It is therefore important that the conditions under which a third State accession is accepted are uniform.6 The 1980 Hague Convention, although not as such a formal source of EU law, because the EU is not a party, has, as a result of the Regulation’s explicit reference, become closely integrated with the EU legal regime and consequently subject to the need for uniform application by the Member States.7

10

This is the dynamic revealed by Opinion 1/13. The Union system operates alongside with a regime established by an international treaty and is to a degree integrated with it. This integration or articulation between EU law and the international regime may itself, as the Opinion shows, form the basis for a finding of exclusive EU competence and so restrict the rights of MS as parties to the Convention, even if the EU cannot become a party to the Convention and its competence must be exercised through MS. The MS act on behalf and in the interests of the EU: they may only act via common action, with positions being determined in advance through Council decisions.8

11

Finally, if there is a possibility of applying Art. 351 TFEU as regards the acceptance of new signatories to those MS that became parties to the 1980 Hague Convention before their accession to the EU shall be addressed. The answer is no. Art. 351 TFEU provides that the rights and obligations under such prior agreements shall not be affected by EU Treaties. However, its scope, as it was stated before, is limited. It does not operate in the relations between MS. And it does not operate either to protect a prior international treaty from the operation of EU law obligations on a MS. The CJEU has interpreted the provision to refer to the rights of third States and the obligations of MS. Thus the purpose of the Article is to protect the rights of third States by allowing MS to fulfil their international obligations, not to allow MS to set aside EU law so as to exercise their rights under a pre-existing treaty regime.9

3 Opinion 1/13 of the Court of 14 October 2014, on the Convention on the civil aspects of international child abduction – Accession of third States – Regulation (EC) No 2201/2003 – Exclusive external competence of the European Union – Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish. 4 Cremona in Pietro Franzina, p. 11. 5 AG Opinion in case C-400/10 PPU, EU:C:2010:544 para. 40. 6 View of AG Jääskinen delivered on 13 may 2014 on the Opinion 1/13, EU:C:2014:2292 para. 96. 7 Cremona in Pietro Franzina, p. 12. 8 Cremona in Pietro Franzina, p. 12. 9 Case C-170/98, EU:C:1999:411, Commission v. Belgium; Case C-62/98, EU:C:2000:358, Commission v. Portugal; Case C-84/98, EU:C:2000:359, Commission v. Portugal; Cremona in Pietro Franzina, p. 12.

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Article 97 Relation with the 1996 Hague Convention 1. As concerns the relation with the 1996 Hague Convention, this Regulation shall apply: (a) subject to paragraph 2 of this Article, 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 a court 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 a court of 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 a court of a Member State and a court of 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 a court of a State Party to the 1996 Hague Convention in which this Regulation does not apply at the time when a court of a Member State is seised of proceedings relating to the same child and involving the same cause of action, Article 13 of that Convention shall apply. I. Content of the provision . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

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III. The accession of MS to the 1996 Hague Convention . . . . . . . . . . . . . . . . . . . . 8 IV. Determination of the overlap between the Regulation and the 1996 Hague Convention 10 V. The relations between both instruments as established in the Regulation . . . . . . . . . 14

1. Art. 97(1): General rule on the preference of applicability of the Regulation . . . . . . . . . 2. Art. 97 (2): Particular solutions . . . . . . . . . a) Derogatio fori . . . . . . . . . . . . . . . . . b) Transfer of jurisdiction . . . . . . . . . . . . c) Lis pendens . . . . . . . . . . . . . . . . . . 3. Problems that should be addressed in further versions of the Regulation . . . . . . . . . . . .

14 23 24 28 29 31

I. Content of the provision Art. 97 deals with the relations between the 1996 Hague Convention and the Regulation in the fields 1 of jurisdiction and extraterritorial validity of decisions in matters of parental responsibility. As regards applicable law, recital 92 sets out that it should be determined in accordance with the provisions of Chapter III of the 1996 Hague Convention. When applying that Convention in proceedings before a court of a Member State in which this Regulation applies, the reference in Art. 15(1) of that Convention to ‘the provisions of Chapter II’ of that Convention should be understood as referring to ‘the provisions of this Regulation. Art. 97 does not include any provision in this regard. Art. 97 paragraph (1) provides that MS courts shall apply the Regulation (i) as regards international jurisdiction, when the child concerned is habitually resident in the territory of a Member State and (ii) as regards the recognition and enforcement of a judgment given in another Member State, even if the child concerned is habitually resident in a third country which is a Contracting Party to the Convention.

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Art. 97 paragraph (2) is a complement, more than an exception, to paragraph (1). This paragraph has the objective of solving the problems of coordination between these two bodies of rules, which arose under Brussels IIbis, particularly in relation to jurisdiction rules. According to this provision, notwithstanding that a child has his habitual residence in a MS, the court of a MS shall apply some articles of the Convention in addition to the Regulation:

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According to paragraph (2), letter (a), the first applicable provision is Art. 10 of the Convention, on the prorogation of jurisdiction of the court seised for the dissolution of the marriage of the parents to take measures on their children. If the parties have agreed upon the jurisdiction of a non-EU State Party to the Convention and that court has decided or is deciding on parental responsibility, a court of a MS in which the Regulation applies shall not decide on the same matter, even if it has jurisdiction according to the Regulation (i.e. because the children have their habitual residence in that MS). The agreement on the prorogation of jurisdiction of the court hearing the case on the divorce, separation or nullity of the marriage of the parents has derogatory effects for MS courts. For example: two Spanish nationals, habitually resident in South Africa, agree that the South African court seised for their divorce shall also decide on parental responsibility issues related to their two children, aged 5 and 6, and habitually resident in Spain with their grandparents. The grandparents file a claim before the Spanish courts asking for the court to declare that the children shall stay under their care in Madrid. The Spanish court shall not decide on the same matter, even if it has jurisdiction under Art. 7 of the Regulation.

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Paragraph (2) letter (b) states that Arts. 8 and 9 of the Convention shall also apply. Art. 8 of the Convention regulates the transfer of jurisdiction to the court of another contracting State if the court seised considers that such court would be better placed in the particular case to assess the best interests of the child. Art. 9 of the Convention covers the request of transfer of jurisdiction by the court that considers itself better placed to assess that child’s interest. These Arts. shall apply with respect to the transfer of jurisdiction between a court of a MS and the court of a contracting State outside the territorial scope of application of the Regulation. For example, a French woman habitually resides in Paris with her three children. After a long illness, she dies and a proceeding is stated before a French court to decide on parental responsibility. The three children’s father lives in Monaco. France shall apply Art. 9 of the Convention if it receives a request of transfer of jurisdiction by the Court of Monaco, that considers itself better placed to assess the children interest.

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Finally, paragraph (2) letter (c) sets out the applicability of Art. 13 of the Convention, on lis pendens. This provision shall apply where proceedings relating to parental responsibility are pending before a court of a contracting State outside the EU at the time when a court of a Member State is seised of proceedings relating to the same child and involving the same cause of action. For example, an Italian court is seised of proceedings relating the custody of a child who is at that moment present in Italy but whose habitual residence is in Ukraine, and this court finds out that the same case is pending before Ukrainian courts, Art. 13 shall apply and the Italian court shall not hear the case.

II. Legislative history 7

Paragraph (1) is directly taken from Art. 61 of Brussels IIbis, except for a last addition at the end of letter b: “and in which this Regulation does not apply”. The goal of the addition is just explanatory. Paragraph (2) is new. Its inclusion puts the record straight on the doubts that in practice where not solved by Art. 61 of Brussels IIbis. This concern of trying to solve all the possible problematic interactions between both instruments can be appreciated in the number of references that the new Regulation makes to the Convention in comparison to Brussels IIbis. They have increased from three to twelve.

III. The accession of MS to the 1996 Hague Convention 8

As it was pointed out at the Introduction to the comment of this Chapter, the EU does not intend to limit its sphere of action to private law relations within its area of integration, but is also concerned with the external dimension and, consequently, with regulatory unification initiatives connected with third states. This concern has given rise to an intense debate on the competence of the EU for this task, of which CJEU Opinion 1/03 of 7 February 2003 on the Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments

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in civil and commercial matters1 can be considered a turning point. The role of European institutions and the Member States in the negotiation of the new Convention was discussed, and the CJEU established an extensive interpretation of the circumstances in which European legislation could be affected by the Convention, which was the determining factor in stating the exclusive competence of the European institutions. As the 1996 Convention was drafted before this Opinion, its articles did not yet provide for the possi- 9 bility that regional economic integration organisations could become a party to it. For this reason, and given that the content of the Convention affected Brussels II and later Brussells IIbis, two decisions had to be adopted authorising the Member States to sign and subsequently ratify or accede to the HC 96 in the interest of the EU. These were the Council Decision of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children2 and the Council Decision of 5 June 2008 authorising certain Member States to ratify or accede to the 1996 Hague Convention and authorising certain Member States to make a declaration on the application of corresponding internal rules of Community law.3 Today all EU Member States are party to the 1996 Hague Convention, although the dates of incorporation into this international instrument have varied.4

IV. Determination of the overlap between the Regulation and the 1996 Hague Convention The Regulation deals with divorce, legal separation and marriage annulment, as well as issues of parental responsibility, with rules governing international jurisdiction, recognition and enforcement of judgments and international cooperation of authorities. It does not regulate questions of applicable law, which are regulated in the 1996 Hague Convention, in addition to the other aspects mentioned. On the other hand, the 1996 Hague Convention is limited to questions of parental responsibility and measures for the protection of children, without dealing with matrimonial matters. As a consequence, the scope of overlap between the two international instruments, once matrimonial matters have been ruled out, is therefore reduced to questions of parental responsibility and child protection measures.

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In this area, an important aspect of the personal scope of both instruments has been harmonized by 11 the inclusion of a new provision in Brussels IIter. Art. 2 of the Convention extends its applicability until the child is eighteen years old. Regulation Brussels IIbis only made a reference to “minors”. This led the decision of determining the come of age to national Laws. Art. 2 (2) (6) of the new version of the Regulation states that a minor is any person under the age of eighteen. Besides, an explanatory recital has been included in the Regulation’s preamble. Recital 17 states: “This Regulation should, like The Hague Convention of 19 October 1996 (…), apply to all children up to the age of 18 years even in cases where they have acquired capacity before that age under the law governing their personal status, for example through emancipation by reason of marriage. This should avoid an overlap with the scope of The Hague Convention of 13 January 2000 on the International Protection of Adults which applies from the age of 18 years onwards and, at the same time, prevent gaps between those two instruments. The 1980 Hague Convention, and consequently also Chapter III of this Regulation, which complements the application of the 1980 Hague Convention in relations between Member States, should continue to apply to children up to the age of 16 years”. As regards the list of matters included in and excluded from the concept of parental responsibility and child protection measures, the list is very similar in both instruments (Art. 1 of the Regulation 1 2 3 4

ECLI:EU:C:2006:81. OJ L 048, 21 February 2003. OJ L 151, 11 June 2008. Armstrong, L’articulation des Règlements communautaires et des Conventions de La Haye, in Hugues Fulchiron/Cyril Nourissat, Le nouveau Droit communautaire du divorce et de la responsabilité parentale (2005), pp. 120–121.

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Art. 97 Brussels IIter Relation with the 1996 Hague Convention and Arts. 3 and 4 of The Hague Convention).5 The Convention refers, among the matters included, to the measures that may be taken by public authorities on the care provided to the child (art. 3.f). This is no different from the Regulation, which also applies to measures that may be taken by public authorities, despite the fact that Art. 1 (1) refers to civil matters, as the CJEU has had occasion to clarify on several occasions.6 This case law has now also been incorporated into the Preamble to the Regulation, when it refers to its scope of application in Recital 4. 13

Finally, as it was stated before, the Regulation does not deal with applicable law, which is dealt with by the Convention in Art. 15 and subsequent. This conclusion is drawn from Art. 98 (1) of the Regulation. To avoid any doubt, an explanatory recital has also been included in the preamble to the Regulation. Recital 92 states that the applicable law in matters of parental responsibility is to be determined in accordance with the provisions of Chapter III of The Hague Convention of 1996 and that when that Convention is applied in proceedings before a court of a Member State to which this Regulation applies, the reference in Art. 15.1 the provisions of its Chapter II – which concerns the rules of jurisdiction – is to be understood as a reference to the provisions of the Regulation. The erga omnes nature of the conflict rules would have made it impossible for two international instruments dealing with the same subject matter to coexist.7

V. The relations between both instruments as established in the Regulation 1. Art. 97(1): General rule on the preference of applicability of the Regulation 14

Art. 97(1) of the Regulation establishes the general rule of the preference of the Regulation over the 1996 Hague Convention when the child is habitually resident in a MS. As regards extraterritorial validity of judgments, the Regulation takes precedence when the judgment has been given by a court of another Member State, even if the child concerned is habitually resident in a State which is a Contracting Party to that Convention and where this Regulation does not apply. At the end, the rule makes a distinction between the two sectors dealt with in the Regulation. Regarding international jurisdiction, the rule is simple. In short, the authorities of the Member States of the European Union will have recourse to the rules of the Regulation when the child is habitually resident in a MS and to those of The Hague Convention in the rest of cases. In the field of recognition and enforcement of judgments, the relationship between the European rules and The Hague Convention is even simpler. The Regulation will apply to the recognition and enforcement of judgments issued in MS and the Convention for the recognition and enforcement of judgments issued in a non-EU State party to the Convention.8

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The Hague Conference on Private International Law collaborated in the inclusion of this provision in the Regulation. The other way round, the EU was taken into account when drafting the 1996 Hague Convention. The Convention predates the first Brussels II, but during the negotiation process it was already known that the EU intended to adopt a regional instrument on the matter. Consequently, the Convention includes a disconnection clause that would allow the EU Member States to participate in this international instrument, without compromising future regulation among themselves. That clause is Art. 52 (2) of the Convention. It provides that the Convention shall not affect the possibility for one or more Contracting States to conclude agreements containing provisions on matters governed by the Convention in respect of children who have their habitual residence in one of the States party to such agreements.

5 Pintens in Magnus/Mankowski, Brussels IIbis Regulation (2017), Article 1: Scope, p. 79. 6 Judgment of 27 November 2007, case C-435/06, ECLI:EU:C:2007:714; Judgment of 2 April 2009, case C-523/ 07, ECLI:EU:C:2009:225; Judgment of 26 April 2012, case C-92/12, ECLI:EU:C:2012:255. In this respect see K. Boele-Woelki/M. Jantera Järeborg, Protecting children against detrimental family environments under the Hague 1996 Convention and the Brussels II bis Regulation, in K. Boele-Woelki/T. Einhorn/D. Girsberger/S. Symeonides (eds.), Convergence and divergence in private international law (2010) p. 140. 7 Benicke, IPRax 2013, 44; Campuzano, El nuevo Reglamento, note 17. 8 Benicke, IPRax 2013, 44.

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In the area of international jurisdiction, Art. 97 (1) (a) of the Regulation is compatible with the Con- 16 vention disconnection clause. The Regulation can be considered an agreement between contracting States and, according to the said Article of the Regulation, its rules will apply when the child has their habitual residence in a MS. However, the wording of Art. 52 (2) of the Convention does not seem to permit that the regime of extraterritorial enforcement established by the Regulation can apply to judgments issued by MS when the child is resident in a non-EU State party to the Convention. In order to avoid any doubt and to preserve the preferential application of the rules on recognition and enforcement of the Regulation over the Convention, irrespective of the child’s habitual residence, the MS made the following declaration at the time of binding themselves by the Convention: “Articles 23, 26 and 52 of the Convention allow Contracting Parties a degree of flexibility in order to apply a simple and rapid regime for the recognition and enforcement of judgments. The Community rules provide for a system of recognition and enforcement which is at least as favourable as the rules laid down in the Convention. Accordingly, a judgment given in a Court of a Member State of the European Union, in respect of a matter relating to the Convention, shall be recognised and enforced in Austria by application of the relevant internal rules of Community law”. With regard to the rules on cooperation of authorities, nothing has been expressly provided for in 17 the Articles under discussion. However, the inter partes application of these rules, referring to the cooperation or assistance provided by the authorities of the States in the best interests of the child, should lead to the same conclusion. It can be said that in the area of cooperation of authorities, unification with a supposedly universal character is well articulated with that of a regional character, as it allows for a deepening of the level of cooperation that can be developed by closer States. The most important problems of coordination appear in the sector of international jurisdiction. There, the habitual place of residence of the child becomes a fundamental element for the articulation of these two instruments. If the child is habitually resident in a MS, the rules of the Regulation will apply, with the exceptions set out in Art. 97 (2). If the child is resident in a non-EU State party to the Convention, the rules of the Convention will apply. Obviously, these rules are only applicable for EU MS courts.

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The choice between the Regulation and the Convention is really of limited significance in this field. 19 The rules of international jurisdiction in these two instruments are very similar: – Art. 7 of the Regulation and Art. 5 of the Convention enshrine the same general rule, based on the habitual residence of the child. When MS courts declare to have jurisdiction on the basis of this connecting factor, they will have to do so by applying Art. 7 of the Regulation, since it is residence in a Member State, as we know, which determines the preference for application of the Regulation. However, the two instruments regulate in different ways the impact that a change of habitual residence of the child may have during the proceedings, which may pose some problems. – Art. 8 of the Regulation provides for a special forum for the modification of a previous decision on rights of access where there is a lawful transfer of the habitual residence of the child between Member States. This provision has no equivalent in the Convention, so that in the case of changes of habitual residence of the child between a MS and a non-EU State party to the Convention, this forum will not be available to the access rights holder. – Art. 9 of the Regulation deals with international jurisdiction in the event of the wrongful removal or retention of a child between MS. It limits the jurisdiction of the courts of the MS of the new habitual residence in order to discourage international child abduction. This is a rule substantially equivalent to that provided for in Art. 7 of the Convention, which would be applicable when the new habitual residence is established in a non-EU State party to the Convention. – Art. 10 of the Regulation presents the most outstanding differences with its correlative in the Convention. Art. 10 allows for a choice of court, while Art. 10 of the Convention only allows that the same courts that are hearing the divorce, separation or annulment of the parents’ marriage can deal with the question of parental responsibility. The first provision applies where the child resides in a MS and the choice is made in favour of the courts of another MS, and the second where the child resides in a non-EU State party to the Convention and the choice is made in favour of the courts of a MS. Which provision applies when the child resides in a MS but the choice is made in favour of a non-EU State party is answered in Art. 97 (2). Calvo Caravaca/Cebrián Salvat

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Art. 97 Brussels IIter Relation with the 1996 Hague Convention – Art. 11 of the Regulation and Art. 6 of the Convention refer to jurisdiction based on the presence of the child when the habitual residence of the child cannot be established, noting that they will also apply to refugee and internationally displaced children. These are two very similar provisions. The application of one or the other in the case of refugee and displaced children will depend on where they were previously habitually resident, as it is explained in Recital 25 of the Regulation: Art. 11 of the Regulation will only apply when the child had their habitual residence in a MS before the displacement. When the child had their habitual residence in a State only party to the Convention, Art. 6 of such instrument shall apply. – Arts. 12 and 13 of the Regulation deal with the transfer of jurisdiction to a court best placed to hear the merits of the case. Similar provisions can be found in Arts. 8 and 9 of the Convention. The Regulation includes additional information with respect to the Convention as to when another court can be considered to be better placed to hear the case. The application of one provision or another will depend on whether this referral mechanism is activated between MS or between a MS and a State party exclusively to the Convention, as Art. 97(2) sets out. – Finally, Art. 55 of the Convention allows a State to reserve the competence to take measures for the protection of the child property that is situated in its territory. Some MS have exercised this right, for example, Spain. The courts of these MS will only have jurisdiction when a child is resident in a State party exclusive to the Convention. When the child resides in a MS, this won’t be possible because there is no equivalent rule in the Regulation. 20

From all the aforementioned, it can be stated that the relations between the Regulation and the Convention when the child is domiciled in a MS or in a non-EU State party to the Convention are clear. What is not so easy is to determine which instrument shall apply when the child resides in a third State which is not a party to the Convention or when the child’s habitual residence is unknown. As Beatriz Campuzano underlines, this is a problem of limited scope, because few of the rules of international jurisdiction in these instruments are likely to apply in such situations.9 Only the international jurisdiction rules based on the child’s presence and on the prorogation of jurisdiction are potentially applicable.

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In relation to the rules based on the presence of the child (Art. 11 of the Regulation and Art. 6 of the Convention), a distinction shall be made between children habitually resident in a third State and children whose habitual residence cannot be determined. According to Recital 25 of the Regulation, regarding children whose habitual residence is undetermined, the courts of the MS where the child is present “should have jurisdiction”, even if no mention is made for the legal basis of that jurisdiction. In fact, it is not important, because both Art. 6 of the Convention and Art. 11 of the Regulation lead to the same solution. When the child is resident in a third State, Recital 25 explicitly states that Art. 6 of the Convention will be applicable in relation to refugees and internationally displaced children. When the child habitually resident in a third State is not a refugee or has not been internationally displaced, neither the Regulation, nor the Convention, declare themselves applicable, unless urgency cases, where Art. 11 of the Convention is applicable. In the event no urgency is appreciated, international jurisdiction rules of each MS shall apply.10

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Regarding the choice of court (Art. 10 of both the Regulation and the Convention), recital 25 of the Regulation implicitly states that Art. 10 of the Regulation will apply to children whose habitual residence cannot be established. Regarding children resident in a third State that is not a party to the Convention, and according to former paragraph (d) of Art. 12 Brussels IIbis, the Regulation should apply. What is more, in these cases, a presumption was set in the sense that jurisdiction under this Art. shall be deemed to be in the child’s interest, in particular if it was found impossible to hold proceedings in the third State in question. In contrast, Art. 10 of Brussels IIter remains silent on this issue. And Art. 10 of the Convention too. Both refer only to inter-party relations. An application of Art. 10 of the Regulation could be defended if it is taken into account that the jurisdiction of the courts of a State party to the Convention would not be undermined.

9 Campuzano, El Nuevo Reglamento, note 34. 10 A.-L. Calvo Caravaca/J. Carrascosa González, Tratado, vol. II, p. 2073.

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2. Art. 97 (2): Particular solutions Art. 97 (2) of the Regulation is an attempt to improve the articulation of the Convention and the Regulation in the field of international jurisdiction. The incorporation of this new paragraph in the Commission’s Proposal, which was retained with some drafting adjustments in the Regulation finally adopted, responded to a problem detected during the preparatory work. Specifically, the question arose as to which international instrument should be applied to transfer the jurisdiction of a case to a third State better placed to hear it, when the child was habitually resident in a MS. The difficulty arose because Art. 15 of Brussels IIbis only allowed for the transfer to another MS, and although Arts. 8 and 9 CH 96 did allow for transfer to a third State party to this international instrument, the Regulation should be applied by virtue of Art. 61, as the child was habitually resident in a MS. A similar problem could arise with regard to giving effect to the agreement by which the parties decided to submit the case to the courts of a third State party to Convention or with regard to the situation of lis pendens which may have arisen with the courts of one of these States. Art. 97 (2) now provides a response to these three situations.

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a) Derogatio fori According to paragraph (2) (a), even if the child has their habitual residence in a MS, where the par- 24 ties have agreed upon the jurisdiction of a court of a State Party to the 1996 Hague Convention in which this Regulation does not apply, Art. 10 of that Convention shall apply. Apparently, this new provision promotes the will of the parties, since Art. 10 of the Convention can apply even if the child is habitually resident in a Member State, thus avoiding the problems arisen in the preparatory work of the Regulation. Art. 10 of the Convention refers to the authorities of a Contracting State, stating that in the exercise of their jurisdiction to hear an application for divorce, separation or annulment of marriage, they may take protective measures in respect of the person or property of a child habitually resident in another Contracting State, if the law of their State so permits, provided that the following circumstances are met: (i) one of the parents is habitually resident in that State at the time when the proceedings are instituted, and the other parent is habitually resident in that State at the time when the proceedings are instituted, (ii) the jurisdiction of these authorities has been accepted by the parents and any other person having parental responsibility for the child and (iii) this jurisdiction is in the best interests of the child. If these requirements are met, the jurisdiction conferred by Art. 10 of the Convention will be recognised in all States Parties to the Convention. As it was stated above, in the Regulation the possibility of choosing the competent court is recognised 25 in broader terms. Art. 12 of Brussels IIbis referred in paragraphs (1) and (2) to the same accumulation of competences of the Convention, but opened the possibility of extending jurisdiction in other cases different from matrimonial causes in paragraph (3). Regulation Brussels IIter has eliminated this differentiation made in the former version. Art. 10 establishes the general possibility of choosing the competent court at least at the time the case is brought before that court, or when it is expressly accepted during the proceedings and unifies the requirements for a valid choice of court: (i) the child shall be closely connected with that MS by one of the factors listed in the provision itself; and (ii) the choice by the parties or any other person with parental responsibility shall be made at the time and in the manner determined in this provision. In addition, the competence must be in the best interests of the child, as stated in Art. 10 (1) (c). When the child has its habitual residence in a MS and the parties have agreed that the court hearing 26 their dissolution of marriage shall decide on parental responsibility, according to Art. 97 (2), shall apply Art. 10 of the Convention. But, what does applying Art. 10 of the Convention mean? Does it mean that it shall declare its lack of jurisdiction if it is seised by another party (for example, the grandparents, or the Ministry Public)? In fact, as the best scholars underline, The Hague Convention does not include a rule which obliges a State to declare its lack of jurisdiction, neither in relation to Art. 10, nor when none the court has no jurisdiction under any of the provisions of the Convention.11 This is a very relevant difference between the Convention and the Regulation, whose Art. 18 compels the judge to control international jurisdiction in its own motion. An express mention to the 11 A.-L. Calvo Caravaca/J. Carrascosa González, Tratado, vol. II, p. 2073.

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Art. 97 Brussels IIter Relation with the 1996 Hague Convention obligation of MS to refrain from hearing the case would have been very welcomed in this Art. 97 (2) (a) and would have ameliorated the relations between the Regulation and the Convention. 27

Anyway, except for this loose end, the question of what a MS court shall do when a case that refers to a child habitually resident in a MS in pending before the non-EU State court that is hearing the parent’s divorce is satisfactorily solved. What the Regulation does not solve is just the opposite situation. That is, the prorogatio fori effect that a choice according to Art. 10 of the Regulation might have when the child concerned has its habitual residence in a third State party to the Convention. It is clear that MS courts shall examine their jurisdiction according to Art. 10 of the Convention when they are the courts that are hearing the divorce, separation or annulment of the parent’s marriage and the child has its habitual residence in a third State party to the Convention. But, shall Art. 10 of the Regulation be applied by the Courts of MS when the case does not fall under Art. 10 of the Convention? Taking into account the general rule of Art. 97 (1), the court of a MS should not apply the Regulation. b) Transfer of jurisdiction

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The second of the special coordination rules provided for in Art. 97 (2) (b) of the Regulation concerns the embodiment of the figure of “forum non conveniens” included both in the Regulation and in the Convention (the mechanism for the transfer of jurisdiction to a court of another State better placed to hear the case). According to this letter (b) with regard to the transfer of jurisdiction between a court of a MS and a court of a non-EU State party to the Convention, Arts. 8 and 9 of the Convention will apply, notwithstanding the fact that the child is habitually resident in a MS. c) Lis pendens

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The third and final special rule of coordination between both instruments concerns the duality of proceedings. According to Art. 97 (2) (c), where proceedings on parental responsibility are pending before a court of a non-EU State party to the Convention at a time when a court of a Member State is seised of a dispute concerning the same child and involving the same subject matter, Art. 13 of that Convention shall apply and not Art. 20 of the Regulation. Art. 13 of the Convention enshrines the rule of prior tempore potior iure, but is a little bit more flexible than the Regulation. The competent authorities before which the case was first brought will be seised, unless they decline jurisdiction. This formula makes it possible for the duality of proceedings not always to be resolved in favour of the authorities first seised72.

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On the other hand, both for the operation of Art. 20 of Regulation 2019/1111 and Art. 13 of the 1996 Hague Convention, it is essential to determine the court before which the proceedings have been initiated in the first place. There is already experience in the European Union of the difficulties that can arise in this area, due to the procedural peculiarities of the various Member States. The Regulations therefore usually incorporate a provision to determine the moment of initiation of the procedure (Art. 16 of Regulation Brussels IIbis, now Art. 17 of Regulation Brussels IIter), which has not, however, prevented the occasional need to resort to the CJEU to resolve doubtful cases. These difficulties, as can be imagined, are likely to arise with States party exclusively to the 1996 Convention, with the added difficulty that these countries are not bound by the case law of the CJEU. 3. Problems that should be addressed in further versions of the Regulation

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The Regulation tried to be far-sighted and to include solutions to all the possible problems of interaction between the 1996 and the Regulation. However, it left something out. It does not address the cases in which a child changes his or her habitual residence during the proceedings from a MS to a third country which is a party to the 1996 Hague Convention. According to Art. 8 (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 Art. 7, retain jurisdiction, for three months following the move, to modify a decision on access rights given in that Member State before the child moved if the person granted access rights by the decision continues to have his or her habitual residence in the Member State of the child’s former habitual res642

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idence. Does the court of the former habitual residence retain jurisdiction for such three months following the move if the child moves lawfully to a third State party to the 1996 Hague Convention? The problem was raised to the CJEU by the Swedish Supreme Court via preliminary question in Sep- 32 tember 2021.12 Without prejudice to the opinion of the Advocate General (not yet assigned to the case at the closing date of this paper) and the subsequent ruling of the court, the principle underlying paragraph (2) seems to lead to a negative answer. This principle is the application of the Convention to the relations between a Court of a MS and a Court of a Third State (derogatio fori, transfer of jurisdiction, lis pendens). The application of the Convention when there is a jurisdiction conflict is therefore the most coherent solution. As a consequence, and according to Art. 5(2) of the Convention, the authorities of the State of the new habitual residence have jurisdiction.

Article 98 Scope of effect 1. The agreements and conventions referred to in Articles 94 to 97 shall continue to have effect in relation to matters not governed by this Regulation. 2. The conventions referred to in Articles 95 to 97 of this Regulation, in particular the 1980 and 1996 Hague Conventions, shall continue to have effect between the Member States which are Party thereto, in compliance with Articles 95 to 97 of this Regulation.

I. Content of the provision In all matters not governed by the Regulation, the instruments mentioned in Arts. 94 to 97 shall con- 1 tinue to apply. The clearest example are the rules on conflict of laws of the 1996 Hague Convention, which remain applicable, even in cases where the jurisdiction of the court is based in the Regulation. Before Art. 96 come into play, the equivalent to this Art. 98 in Brussels II Regulation (Art. 62) was also used in order to justify the general application of the 1980 Hague Convention with the only exceptions set out in former Art. 11 of Brussels II bis.1 If paragraph (2) has any value at all, it may be understood as stressing the importance of applying the substance of the 1980 and 1996 Hague Conventions. In exceptional cases where jurisdiction and/ or recognition and 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.2

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II. Legislative history This provision comes from Art. 62 Brussels IIbis. The slight changes in its dictum have been included because of the inclusion of Arts. 96 and 97 explaining with further detail the relations between the Regulation and the 1980 and 1996 Hague Conventions.

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III. Problems of application Art. 98 of the Regulation leads to the consideration of the substantial scope of application of the Reg- 4 ulation.3 In the field of recognition and enforcement of judgments, this includes the country where the decision comes from. The Court has already held that recognition of a divorce decision delivered 12 Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 16 September 2021 – CC v VO, case C-572/21; 2021/C-481/24. 1 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Article 62, note 1. 2 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Article 62, note 2. 3 See Chapter I of this Commentary.

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Art. 99 Brussels IIter Treaties with the Holy See in a third country does not come within the scope of Regulation Brussels IIbis.4 In relation to international jurisdiction, to determine whether an application falls within the scope of the Regulation, the focus must be on the object of the application5 and not in the subject that brought the action.6

Article 99 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 18 May 2004. 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 Subsection 1 of Section 1 of Chapter IV. 3. The provisions laid down in paragraphs 1 and 2 shall also apply to the following international treaties 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; (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 third Additional Protocol of 27 January 2014. 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.

I. Content of the provision 1

The application of the Regulation shall be without prejudice of the Concordats of the Holy See with Portugal, Italy, Spain and Malta. Art. 94 does not apply to them. This Article concerns only the recognition of ecclesiastic decisions and not jurisdiction. Where civil marriages and divorces of ecclesiastic

4 Order of 12 May 2016, C-281/15, EU:C:2016:343, Sahyouni, paras. 22 and 23. 5 Judgment of 21 October 2015, C-215/15, EU:C:2015:710, Gogova, para. 28 and the case-law cited. 6 Judgment of the Court (Second Chamber) of 13 October 2016, C-294/15, ECLI:EU:C:2016:772, Czarnecka (an action for annulment of marriage brought by a third party after the death of one of the spouses fall under the scope of application of the Regulation). In this case, the referring court asked, first, whether an action for annulment of a marriage brought following the death of one of the spouses falls within the scope of the regulation. Secondly, again in relation to the material scope of Regulation No 2201/2003, and in the event of an affirmative answer to its first question, the referring court asks whether an action for annulment of marriage brought by a person other than one of the spouses falls under that regulation. The CJEU answered affirmatively to both questions. The CJEU ruled against the opinion of Alegria Borrás in relation to the same provision of the Draft Convention, which stated that the scope of the Convention does not extend to cases where the validity of a marriage is considered on the basis of a petition for its annulment following the death of one or both spouses. The CJEU said “the fact that the action for annulment at issue in the main proceedings relates to a marriage previously dissolved by the death of one of the spouses does not mean that the action falls outside the scope of Regulation No 2201/2003. Indeed, it cannot be excluded that a person may have an interest in having a marriage annulled, even after the death of one of the spouses” (note 35).

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marriages are permitted by national law, as is the case, for example, in Portugal, the provision does also apply with regard to the recognition of such divorces. Recognition of decisions on the invalidity of a marriage under these international treaties follows the normal rules in Chapter IV. Foreign annulments are recognized in other Member States after having been confirmed by the appropriate court of the State and registered.1

2

II. Legislative history This provision comes from Art. 63 Brussels IIbis. The content and dictum of the rule is almost the same, except for the adaptation of the references to other provisions of the Regulation and some updates of the existing international treaties. The only update is the substitution in paragraph (1) of the Concordat between the Holy See and Portugal of 7 May 1940 for the new agreement of 18 May 2004.

3

III. Closing remarks to the Chapter As this Chapter shows, many of the difficulties involved in private international law as a legal disci- 4 pline are caused by the complex web of normative provisions that can be applied to each specific case. In addition to provisions of domestic origin, distributed in a plurality of rules, the legal operator has to get used to dealing with an increasing number of international instruments, which come from the European Union or other co-ordinating bodies, among which The Hague Conference on Private International Law stands out. This means that the legal operator’s effort often has to focus on identifying the rule applicable to a specific case, rather than on understanding and applying what the rule in question says. This is particularly the case in those areas of law where there has been a proliferation of unifying initiatives at the international level, among which the issues of parental responsibility and child protection stand out. This subject matter presents more problems of coordination with other instruments than the dissolution of marriage. The Hague Conference has drawn up a number of international conventions on child protection, in some cases replacing previously adopted conventions, which have not prevented the European Union from also wishing to regulate this issue. Insofar EU laws entered the picture, this is not a treaty-party anymore.2 It is a conflict of systems and it shall be treated as such.

Chapter IX Final provisions (Art. 100–Art. 105)

Article 100 Transitional provisions 1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements registered on or after 1 August 2022. 2. Regulation (EC) No 2201/2003 shall continue to apply to decisions given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements which have become enforceable in the Member State where they were concluded before 1 August 2022 and which fall within the scope of that Regulation.

1 Pirrung in Magnus/Mankowski, Brussels IIbis Regulation (2017), Art. 63, notes 1 and 2; Spellenberg, Art. 63 note 4, 7; Rauscher, Art. 63 note 7 et seq. 2 Cremona in Pietro Franzina, p. 7.

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1 5

III. Documents and authentic instruments . . . 10 IV. Agreements between the parties . . . . . . . 12 V. Rules on recognition and enforcement . . . 13 1. Main rule: Application of the Brussels IIter regime for judgments stemming from proceedings instituted after 1 August 2022 . . . . 13

2. Counterpart: Application of the Brussels IIbis regime for judgments stemming from proceedings instituted before 1 August 2022 . 14 VI. Rules on lis pendens . . . . . . . . . . . . . . 16 VII. Future accessions to the EU . . . . . . . . . . 21

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; Kaller, Der Anwendungsbereich der Verordnung Brüssel IIa, FamZ 2007, 168; Klauser/F. Horn, Brüssel IIa-Verordnung in Kraft, ecolex 2004, 910.

I. General considerations 1

Art. 100 contains the main rule of transition and defines the temporal scope of application of the Brussels IIter Regulation. The principle of non-retroactivity is implemented rather strictly. Compared to Art. 64 Brussels IIbis Regulation, it is interesting that Art. 100 strives to cope with the intertemporal issues in only two short paragraphs whereas Art. 64 Brussels IIbis Regulation employed not less than four paragraphs (of which three were rather verbose) for the same purpose. The explanation for this difference in treatment lies in the short difference in time between the Brussels II and Brussels IIbis Regulations becoming effective whereas the difference between the Brussels IIbis and Brussels IIter Regulations becoming effective amounts to more than eighteen years. The respect to be paid to the regime before the immediately previous regime can be kept small thus. The European legislator did not identify any need for a complicated multi-layer transfer from the old to the new regime this time and thus did not copy the model introduced by Art. 64 Brussels IIbis Regulation.1

2

However, Recital (90) leaps back quite some way to the past, namely even to the (failed) project of a Brussels II Convention in the 1990s:

3

(90) Continuity between the 1998 Convention 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 (‘Brussels II Convention’), Regulation (EC) No 1347/2000, Regulation (EC) No 2201/2003 and this Regulation should be ensured to the extent that the provisions have remained unchanged, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation, including by the Court of Justice, of the Brussels II Convention and of the Regulations (EC) No 1347/2000 and (EC) No 2201/2003.

4

Whether Art. 100 in its relative brevity fully reflects this intention appears dubitable, though.

II. Rules on jurisdiction 5

If the proceedings were instituted only on or after, accurately phrased: the date when the Regulation became effective, i.e. 1 August 2022, the Regulation shall apply.2 The wording of (1) is painstakingly and carefully drafted insofar as it refers to that date of application as spelled out in Art. 105 (2), not to the entry into force of the Regulation.3

1 Brosch, GPR 2020, 179, 187. 2 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/F. Horn, ecolex 2004, 910, 911; Kaller-Pröll in Fasching/Konecny, Art. 64 note 3. 3 OGH ZfRV 2006, 70.

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If the proceedings at stake were commenced before the date of effective application of the Regulation, 6 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 IIbis Regulation and international Treaties.4 (1) refrains from applying the rules of the Brussels IIter Regulation retroactively at the outset.5 Thus 7 the applicant’s case is lost for lack of jurisdiction if the court seised 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 seised competent if only the proceedings had been instituted after the entry into force of the Regulation.6 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 August 2022, pursuant to the then applicable rules whereas a like head of jurisdiction would not exist under the Brussels IIter Regulation.7 Insofar the balance between the applicant’s interests and the need to protect the defendant is struck in the plaintiff ’s favour.8 The defendant gains sufficient protection from Art. 100 (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. As to when proceedings are instituted is not expressly defined in (1) nor is any express reference to 8 Art. 17 made or else contained. Nevertheless, to answer the question by applying the yardsticks of Art. 179 appears by far the most convincing manner. Methodologically some doubts might remain,10 but every alternative would be even more imperfect since it would consist of a recourse to the diverging national laws of the Member States11 giving the Regulation an uneven start depending on the law of the respective forum state.12 Seizing upon assistance rendered by Art. 17 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 EU13 (with the exception of Denmark, that is). That the wordings of Art. 100 and Art. 17 respectively are not perfectly synchronised as both employ different language should not amount to an obstacle effectively.14

4 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. 5 OGH ZfRV 2005, 157; Quinoñes Escámez, REDI 2005, 365, 367; cf. also Hof ’s-Gravenhage, NIPR 2006 Nr. 11 p. 29. 6 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, EuZVR Art. 66 EuGVVO note 3. 7 Cf. – under the Brussels I Regulation – A-G Strikwerda, NIPR 2004 Nr. 98 p. 171. Contra Thorn, IPRax 2004, 354, 355. 8 Contra Thorn, IPRax 2004, 354, 355. 9 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; Nademleinsky in Liber amicorum Edwin Gitschthaler (2020), p. 171, 173. 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/von Hein, Europäisches Zivilprozessrecht (9th ed. 2011), Art. 66 EuGVVO note 2; Briggs/Rees, Civil Jurisdiction and Judgments (5th ed. 2009), para. 2.21; Schlosser in Schlosser, EU-ZPR (3rd ed. 2009), Art. 66 EuGVO note 11; Hau, IPRax 2003, 461; Geimer/Schütze, EuZVR (3rd. ed. 2010), Art. 66 EuGVVO 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. 10 OLG Düsseldorf IHR 2004, 108, 109; Staudinger in Rauscher, Art. 66 Brüssel I-VO note 2; Thorn, IPRax 2004, 354, 355 fn. 8. 11 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. 12 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. 13 See Mankowski in Magnus/Mankowski, Art. 66 Brussels Ibis Regulation note 6. 14 Geimer/Schütze, Art. 66 EuGVO note 2.

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The point of time as to when a decision is deemed to be rendered is not governed by EU law, but by the rules of the respective lex fori processus of the court which has given decision.15 The relevant point of time is when the decision becomes effective (if only preliminarily)16 not when it eventually becomes res iudicata or gains enforceability.17 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.18 Service of the decision upon the parties might imply identifying the proper parties and thus cause difficulties.19 A decision must meet the definition of Art. 2 (1) subpara. 2 and, if enforcement is sought, must be enforceable in the Member State of origin by virtue of Art. 34 (1) which two conditions might help to identify which is the judgment at stake.20

III. Documents and authentic instruments 10

(1) asserts that the Brussels IIter Regulation is only applicable to documents drawn up after 1 August 2022. The wording is quite clear and unambiguous in this regard.21 It bears no relevance as to when such document might have become enforceable.22 If authentic instrument was effected the relevant point of time is when the registration as authentic instrument took place.

11

A problem is generated by the fact that Art. 104 formally repeals the Brussels IIbis Regulation without any reservation. Accordingly, documents drawn up, and authentic instruments registered before 1 August 2022, cannot rely on the Brussels IIbis 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 (2) per analogiam.23

IV. Agreements between the parties 12

Agreements between the parties are subject to the Brussels IIter Regulation by virtue of (1) if they are concluded after 1 August 2022. This in particular envisages agreements on choice of forum or jurisdiction under Art. 12.24 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 1. Main rule: Application of the Brussels IIter regime for judgments stemming from proceedings instituted after 1 August 2022 13

(2) deals with recognition and enforcement. Pursuant to (2), the Brussels IIbis shall continue to apply to decisions given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements which have become enforceable in the Member State where they were concluded before 1 August 2022 and which fall within the scope of the Brussels IIbis Regulation. By

15 C (Case C-435/06), (2007) ECR I-10141, I-10191, para. 71; Rauscher in Rauscher, Art. 64 note 10. 16 R. 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. 17 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. 18 Kaller-Pröll in Fasching/Konecny, Art. 64 note 8. 19 Kaller-Pröll in Fasching/Konecny, Art. 64 note 8. 20 A-G Kokott, (2007) ECR I-10144, I-10165, paras. 65 et seq. 21 Hess, IPRax 2004, 374, 376. 22 Hess, IPRax 2004, 374, 375 et seq.; Kaller-Pröll in Fasching/Konecny, Art. 64 note 6. 23 Rauscher in Rauscher, Art. 64 note 19; Kaller-Pröll in Fasching/Konecny, Art. 64 note 21. 24 Kaller-Pröll in Fasching/Konecny, Art. 64 note 12.

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way of implication, the intertemporal scope of the Brussels IIter Regulation in the field of recognition and enforcement can be derived: The Brussels IIter regime only applies to judgments stemming from proceedings instituted after 1 August 2022. Every judgment rendered in such proceedings is necessarily rendered after 1 August 2022. 2. Counterpart: Application of the Brussels IIbis regime for judgments stemming from proceedings instituted before 1 August 2022 (2) subjects judgments stemming from proceedings which were instituted before 1 August 2022 to 14 the old Brussels IIbis regime. Art. 100 relies on a simple, binary and complementary system: Proceedings are instituted either before or after 1 August 2022. This is a strict alternative. Tertium non datur. The rule is rather generous to the old regime, but protects parties’ expectations that what was commenced under the old regime will be finished under the old regime in every possible respect. The rule ist clear-cut and simple, unlike the multi-layered system under Art. 64 Brussels IIbis Regulation25 Yet that comes with a price: There will be a long period of overlap iuxtapositing the two regimes to each other, given the longeveity of some divorce or some child return proceedings.26 The term “decision “ relates to the original judgment at last instance in the country of origin, not to any kind of later order declaring it enforceable; only the former is relevant for the purposes of (2).27 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.28 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.29

15

VI. Rules on lis pendens The third body of rules contained in the Regulation – and not to be overlooked consists – of 16 Arts. 17–20 and is concerned with issues of lis pendens and interrelated lawsuits, moulded by the newly introduced definition when proceedings are instituted, in Art. 17. Already Art. 64 Brussels IIbis Regulation did 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, there still exists the necessity to face and to cover the issue. To apply the new rules already if both lawsuits are pending after 1 August 2022 would be the simplest approach.30 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 Brussels IIter Regulation applies. And if both sets of proceedings were instituted before the relevant date, the Brussels IIter Regulation does not apply.31 But the most intricate and complicated instance is the third situation: One set of proceedings is instituted before, the other after the relevant date.32 As to substance, the choice might be relevant for cases of parental responsibility since Art. 20 (4), (5) are newly introduced alterations compared to

25 26 27 28 29 30

Brosch, GPR 2020, 179, 187. Brosch, GPR 2020, 179, 187. 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.). 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.). 31 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. 32 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 46.

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Art. 100 Brussels IIter Transitional provisions the Brussels IIbis regime.33 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.34 If this is transferred to the present Brussels IIter Regulation, (2) could come to the rescue.35 Art. 20 shall prevent the danger of colliding judgments being entered into which could issue conflicting calls for recognition in other Member States. Once Arts. 38 (d); 39 (f) are applicable recognition of judgments would be governed by the Brussels IIter Regulation; hence Art. 20 should govern any pre-emptive attempt at avoiding conflicting judgments.36 18

The ensuing solution would read as follows: The court seised second stays the proceedings pending before it pursuant to Art. 20 (1) until the court seised first has decided whether it has jurisdiction. If the court seised first denies its own jurisdiction, the court seised second lifts the stay and commences the trial. If the court seised first declares itself competent, the court seised second ought to countercheck whether this assertation is correct since only in the event that the judgment eventually rendered by the court seised first will have to be recognised pursuant to (2) it is justified that the court seised second declares itself incompetent and dismisses the proceedings pending before it by virtue of Art. 20 (2).37 That pinched through the first clause of Art. 69 Brussels IIbis Regulation and possibly pinches through the wording of (2) in simple reading,38 but appeared in its genesis reasonable enough at least if the court seised second exercised its control and countercheck according to yardsticks borrowed from the Brussels or Lugano Conventions or bilateral accords respectively.39 If the court seised first referres to its national law via Art. 6 or Art. 15, the court seised second may only control whether Art. 6 or Art. 15 was applied correctly.40 But exceptionally undermining the fortress of formerly Art. 69 Brussels IIbis Regulation and now (2) appears justified at least insofar as the court seised first was a non-Member State at the time of seisin.41 No floodgate argument is permissible since the exceptionality is evident.42

19

If in the situation sketched Art. 20 was not applied and if the law of the court seised second does not contain alike rules on lis pendens, both sets of proceedings would continue threatening to generate irreconcilable judgments.43 The solution promoted by the ECJ also avoids the opposite friction that the court seised second had to declare itself incompetent whilst the recognition of the prospective judgment rendered by the court seised first was not guaranteed.44 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.45 Generally, the only half-way feasible alternative would be

33 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 46. 34 Elsbeth Freifrau von Horn v. Kevin Cinnamond (C-163/95), (1997] ECR I-5451, I-5474 et seq. paras. 15–25. 35 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. 36 Großerichter in Althammer, Art. 64 note 5. 37 Elsbeth Freifrau von Horn v. Kevin Cinnamond (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.). 38 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 46. 39 Elsbeth Freifrau von Horn v. Kevin Cinnamond (C-163/95), (1997) ECR I-5451, I-5477, para. 25. 40 Elsbeth Freifrau von Horn v. Kevin Cinnamond (C-163/95), (1997) ECR I-5451, I-5477, para. 25; GaudemetTallon, 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. 41 Rauscher, IPRax 1999, 80, 82. 42 Adolphsen, ZZP Int. 3 (1998), 239, 245; Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 24. 43 Rauscher, IPRax 1999, 80 et seq.; Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 25. 44 Droz, n°. 340; Lagarde, RCDIP 67 (1978), 374; Rauscher, IPRax 1999, 80, 81. 45 Adolphsen, ZZP Int. 3 (1998), 239, 243; Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 25.

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to treat the courts seised first as being located in a non-Member State generally.46 The alternative to the solution proposed would be to apply Art. 20 (4), (5) per analogiam47 or to resort to an analogy to (2).48 Both approaches would concur in the eventual result. Thinking outside the box (i.e. beyond the litteral reading and the wording) is required since the legislator appears to have overlooked the problem49 in the wake of the Proposal which did not intend to alter the rules on lis pendens.50 Furthermore, the likelihood of colliding proceedings on parental responsbility might be diminished by the parents finishing the first set of proceedings expeditiously.51 However, tactical litigation might point to the opposite scenario. A tiny, but obtrusive detail still needs to be clarified: According to which yardsticks shall be ascer- 20 tained as to whether proceedings were instituted before or after the relevant date? According to the new yardsticks (in particular Art. 17) or to the old ones, i.e. by the national law of each forum concerned respectively?52 It may be submitted that the former approach ought to be preferred since it augments uniformity and is the more modern approach more in line and in tune with the Regulation.53 Generally, intertemporal conflict rules opt for applying the lex praesens where possible insofar allowing the lex praesens to define its own scope of application.54 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.55 If Art. 17 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.56

VII. Future accessions to the EU With further countries (in particular Serbia, Albania, North Macedonia, possibly Montenegro and 21 Turkey) in the offing, looking forward to becoming Member States of the EU (with whatever prospects of success), future accessions have a certain probability. The extent to which Art. 100 will be declared applicable to deal with the entry into force of the Brussels IIter 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. 100 will be declared applicable mutatis mutandis respectively if the EU legislator takes care of the issue at all.

46 Adolphsen, ZZP Int. 3 (1998), 239, 243. 47 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 48. 48 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 48. 49 The lack of attention paid to it in Note of the Council, ST 14784 2018 INIT p. 114 (30 November 2018) is notable and telling; Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 49 fn. 104. 50 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 49. 51 Reuß, Internationale Rechtshängigkeit und abhängige Verfahren in Garber/Lugani (ed.), Handbuch zur Brüssel IIb-VO (2022), para. 47. 52 To this avail Rolf Wagner, ZIP 1994, 81, 82; Staudinger in Rauscher, Art. 66 Brüssel I-VO note 2. 53 To the same result Heß, IPRax 2004, 374, 375; Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. 54 Heß, Intertemporales Privatrecht (1998), p. 340; Heß, IPRax 2004, 374, 375; Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. 55 Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 26. 56 Mankowski in Magnus/Mankowski, Art. 66 Brussels I Regulation note 26.

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Art. 101 Brussels IIter Monitoring and evaluation

Article 101 Monitoring and evaluation 1. By 2 August 2032, the Commission shall present to the European Parliament, to the Council and to the European Economic and Social Committee a report on the ex post evaluation of this Regulation supported by information supplied by the Member States. The report shall be accompanied, where necessary, by a legislative proposal. 2. As of 2 August 2025, the Member States shall provide the Commission upon request, where available, with information relevant for the evaluation of the operation and application of this Regulation on: (a) the number of decisions in matrimonial matters or in matters of parental responsibility in which jurisdiction was based on the grounds laid down in this Regulation; (b) with regard to applications for enforcement of a decision as referred to in Article 28(1), the number of cases where enforcement has not occurred within six weeks from the moment the enforcement proceedings were initiated; (c) the number of applications for refusal of recognition of a decision pursuant to Article 40 and the number of cases in which the refusal of recognition was granted; (d) the number of applications for refusal of enforcement of a decision pursuant to Article 58 and the number of cases in which the refusal of enforcement was granted; (e) the number of appeals lodged pursuant to Articles 61 and 62, respectively.

I. General review clause, (1) 1

Pursuant to Art. 17 (1) TEU the Commission is obliged to monitor, survey and control the application of EU law in the Member States and to adopt measures for the effective implementation of EU law. This general obligation is in concreto mirrored in Art. 101 with particular regard to the Brussels IIter Regulation as it is in Art. 79 Brussels Ibis Regulation with particular regard to the Brussels Ibis Regulation1 or Art. 90 EIR 2015 as regards the EIR 2015. Recital (93) summarizes:

2

(93) For the proper functioning of this Regulation, the Commission should assess its application and propose such amendments as appear necessary.

3

In anything but name, (1) is a general review clause, following the same principle as Arts. 27 Rome I Regulation; 30 Rome II Regulation; 74 Maintenance Regulation; 20 Rome III Regulation; 82 Succession Regulation; 90 (1) EIR 2015; 68 Matrimonial Property Regulation; 68 Partnership Property Regulation. The addressee of obligations to report is the Commission, the ‘guardian of the Treaties’, under its generic duty set out in Art. 17 (1) 3rd sentence TEU. The report has to be submitted to the European Parliament, the Council and the European Economic and Social Committee. The general goal is evaluating and possibly developing the Brussels IIter Regulation.

4

In 2002 the Commission initiated a programme for ‘Better Regulation’2 reiterated in 2015.3 The resulting Interinstitutional Agreement on Better Law-Making aims at preventing EU Acts from becoming dated or, worse, outdated and obsolete by ordering evaluation and possibly adaptation in regular intervals.4 Its implementation is the background for review clauses like (1) which nowadays form a regular feature in the final clauses of EU legislative Acts.5 Sanctions for not or belatedly submitting 1 See Commission Proposal COM (1999) 348 final p. 29 (on what became Art. 73 Brussels I Regulation). 2 Communication from the Commission: Action plan “Simplifying and improving the regulatory environment”, COM (2002) 278 final. 3 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Better regulation for better results – An EU agenda, COM (2015) 215 final. 4 Interinstitutional Agreement between the European Parliament, the Council and the European Commission of 13 April 2016 on Better Law-Making, OJ EU 2016 L 126/1, para. 23. 5 J. Schmidt in Mankowski/M. Müller/J. Schmidt, EuInsVO 2015 (2016), Art. 90 EuInsVO 2015 note 6; Rüther in Brinkmann, EIR (2019), Art. 90 EIR note 2; Pogacar in Konecny, Kommentar zu den Insolvenzgesetzen,

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Reports against the Commission are not expressly provided for. Generally, Art. 14 (1) 2nd sentence TFEU charges the European Parliament with political control of the Commission, and the European Parliament thus might use its respective instruments, including formal inquiries from the Commission.6 Unlike the procedure preceding the signing or ratifation of Treaties and Conventions, not even the accession of new Member States to the EU provides for an 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.7

5

By 2 August 2032 the Commission has to present a report on the application of the Regulation in the 6 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 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. Certainly, the Commission is not limited to action particularly on the fields mentioned in (2). The interval until 2 August 2032 spans ten years after the becoming effective of the Brussels IIter Reg- 7 ulation.8 This is a very long interval.9 It might indicate that the Brussels IIter Regulation is not considered as a short-term or medium-term institution and that re-negotiating the package should not be staged all too soon.10 Perhaps the positive experience of the BrusselsIIbis staying for eventually nineteen years influenced such thinking if it was to prevail at all. The wording suggests that 2 August 2032 is a fixed date and that the Commission may not submit a Report earlier. This could possibly be sloppy drafting, though, missing out on adding a “No later than” as e.g. Art. 90 (1)-(4) EIR 2015 do. It would be odd if the Commission was prevented form acting earlier if it happened to detect deficiencies of the Brussels IIter Regulation in practice. Arts. 56; 57 have been identified as candidates possibly causing trouble and necessitating an earlier remedur.11

8

The predecessors to the present Art. 101 were Art. 43 Brussels II Regulation and Art. 65 Brussels IIbis Regulation. In the past, the Commission was late in presenting the requested Report. Whereas Art. 65 Brussels IIbis Regulation nominated 1 January 2012, the Commission submitted the respective Report only per 15 April 2014.12 The legislative Proposal eventually resulting in the Brussels IIter Regulation did not accompany the Report but was submitted separately and in timely distance.

9

Art. 65 Brussels IIbis Regulation provided for a repeat report every five years. Such continuous obligation being imposed on the Commission has vanished. (1) rather lines up with Art. 73 Brussels I and Art. 79 Brussels Ibis Regulation than with Art. 90 (1) EIR 2015.

10

6 7 8 9 10 11 12

Art. 90 EuInsVO note 2 (Dec. 2018); O. Hermann in Uhlenbruck, InsO, vol. II: EuInsVO (15th ed. 2020), Art. 90 EuInsVO note 1; Be˘lohlávek, EIR (2020), para. 90.02; Corneloup/Kruger, RCDIP 2020, 215, 216; Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 90 note 2. Vallender in Vallender, EuInsVO (2nd ed. 2020), Art. 90 EuInsVO note 2; O. Hermann in Uhlenbruck, InsO, vol. II: EuInsVO (15th ed. 2020), Art. 90 EuInsVO note 2; Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 90 note 2. Rauscher in Rauscher, Art. 65 Brüssel IIa-VO note 1. 1 August 2032 is a Sunday. For this reason, the Report has to be submitted only on the following day, Monday, 2 August 2032. Gruber/Möller, IPRax 2020, 393, 404. Gruber/Möller, IPRax 2020, 393, 404. Gruber/Möller, IPRax 2020, 393, 405. 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 respüonsibility, repealing Regulation (EC) No 1347/2000, COM (2014) 225 final.

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By which means the Commission effects the review and whether it in turn commissions external academic input (for instance in the fine tradition of the Heidelberg Report under the EIR 2000)13 is left to the Commission’s discretion.14

12

By virtue of (1) 2nd sentence, the report shall be accompanied where necessary by a proposal for adaptation of the Brussels IIter Regulation. The Commission is at liberty to decide in its discretion whether it deems it appropriate to make proposals to amend.15 There is no obligation in the strict sense to submit such proposals. On the other hand nothing in (1) would stop the Commission in its tracks from making a full-scale recast proposal.16 In contrast to Art. 27 (1) Rome I Regulation, nothing is said on an Impact Assessment possibly accompanying an eventual proposal, but that should not give rise to an argumentum e contrario since Impact Assessments have become a standard measure.

II. Member States’ (conditional) duty to submit certain information 13

(2) obliges the Member States to provide the Commission upon request, where available, with information relevant for the evaluation of the operation and application of this Regulation on: (a) the number of decisions in matrimonial matters or in matters of parental responsibility in which jurisdiction was based on the grounds laid down in this Regulation; (b) with regard to applications for enforcement of a decision as referred to in Art. 28 (1), the number of cases where enforcement has not occurred within six weeks from the moment the enforcement proceedings were initiated; (c) the number of applications for refusal of recognition of a decision pursuant to Art. 40 and the number of cases in which the refusal of recognition was granted; (d) the number of applications for refusal of enforcement of a decision pursuant to Art. 58 and the number of cases in which the refusal of enforcement was granted; (e) the number of appeals lodged pursuant to Arts. 61; 62, respectively.

14

(2) is an innovation and novelty. Such a specified list on the information that the Member States have to provide, has not appeared either in Art. 65 Brussels IIbis Regulation or in Art. 79 Brussels Ibis Regulation. (2) is very specific and self-explaining about the data requested. The data requested are statistic data. They relate to the frequency with which certain instruments provider by the Brussels IIter Regulation are used in practice.

15

However, (2) would cause trouble if strictly and mercilessly applied insofar as Member States do not collect such specific data and do not keep respective statistics. Yet already the wording of (2) caters for this very probable and likely scenario: Information has only to be provided “where available”. The duty is not absolute, but conditional. (2) does not compel or even urge the Member States to introduce respective records or to erect record keeping institutions. If a Member State collects the respective data it shall submit it to the Commission; if a Member State does not, there is no effective obligation. (2) does not spell out any express sanction against a Member State who does not provide data despite having collected it.

16

Furthermore, it deserves to be noted that the Member States are not compelled the date on their own motion or automatically, but only “upon request”. Hence, the Commission must issue a respective request. This opens further opportunities for finetuning and adapting to the real facilities of a certain Member State insofar as the Commission might abstain from requests which are predictably bound to fail since their addressee does muster the necessary facilities.

17

(2) appears to aim at providing the Commission with statistical data for allowing an evaluation and assessment of the proper impact of the respective instruments in practice. The Commission shall also be enabled to detect possible differences in practice between different Member States and might feel tempted to marvel on possible explanations for eventual differences.

13 van Zwieten in Bork/van Zwieten, EIR (2016), para. 90.01. 14 Cf. Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 90 note 3. 15 Cf. Mankowski in Magnus/Mankowski, Rome I Regulation (2017), Art. 27 note 8; Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 90 note 4. 16 Cf. Mankowski in Magnus/Mankowski, Rome I Regulation (2017), Art. 27 note 8.

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Art. 102 Brussels IIter

It is a little puzzling that (2) nominates 2 August 2027, not less than five years prior to 2 August 2032 18 when the Commission should (at latest) present its Report. Mathematically, 2027 is half way between 2032 and the becoming effective of the Brussels IIter Regulation in 2022. But this cannot serve as a convinicng explanantion for choosing 2027.

Article 102 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. I. General considerations . . . . . . . . . . . . . II. Deciding the interlocal conflict . . . . . . . . 1. Autonomous decision by Art. 102 itself . . . .

1 5 5

2. Exception in the event of nationality as the relevant connecting factor, (b) . . . . . . . . .

7

I. General considerations Like most Hague Conventions but quite unlike the Brussels Ibis Regulation, Art. 102 expressly deals 1 with the event that two or more systems of law or sets of rules concerning matters falling in the scope of the Brussels IIter Regulation exist within a single Member State as Art. 41 Brussels II Regulation has done initially. 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. 102 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 via Art. 66 Brussels IIbis Regulation by Art. 47 Hague Children Protection Convention3 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 Brussels IIbis Regulation and on to Art. 102, which also featured amongst the connection factors employed by the jurisdictional factors of the Brussels IIer regime.5

2

Nonetheless, some Member States present such subdivision into two or more territorial units. The 3 most prominent example until Brexit becoming effective was 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. Austria follows in the same vein. Whether Art. 103 1 Report Borrás, para. 126; Rauscher in Rauscher, Art. 66 note 2. 2 Großerichter in Althammer, Art. 66 note 2. 3 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. 4 Report Borrás, para. 126; Rauscher in Rauscher, Art. 66 note 1. 5 Rauscher in Rauscher, Art. 66 note 1. 6 Schlosser in Schlosser/Hess, Art. 66 note 1; Rauscher in Rauscher, Art. 66 note 2.

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Art. 102 Brussels IIter Member States with two or more legal systems is relevant for Spain depends on whether the interforal procedural rules of the regional laws become operative in the material scope of the Brussels IIter Regulation.7 4

In any event, only a territorial subdivision is relevant for the purposes of Art. 66, not a 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. 102 itself 5

Generally, Art. 102 reserves the casting vote for itself. But for (b), Art. 102 itself determines 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. In stead of employing such a reference it extends the connecting factor chosen for international jurisdiction into the interlocal conflict. This is an autonomous decision by EU 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) iuncto Art. 1 (3).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. 102 or any other rule of the Brussels IIter Regulation interfering.

7 Rauscher in Rauscher, Art. 66 note 2. 8 Emphasis added. 9 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. 10 Rauscher in Rauscher, Art. 66 note 4. 11 Rauscher in Rauscher, Art. 66 note 4 fn. 6. 12 Cf. Rauscher in Rauscher, Art. 66 note 4.

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Art. 103 Brussels IIter

Article 103 Information to be communicated to the Commission Information on central authorities and languages accepted 1. The Member States shall communicate to the Commission the following: (a) any authorities referred to in point (b) of point (2) and point (3) of Article 2 (2) and Article 74 (2); (b) the courts and authorities competent to issue certificates as referred to in Article 36 (1) and Article 66 and the courts competent to rectify certificates as referred to in Article 37 (1), Article 48 (1), 49, and Article 66 (3) in conjunction with Article 37 (1); (c) the courts referred to in Article 30 (3), Article 52, Article 40 (1), Article 58 (1) and Article 62 as well as the authorities and courts referred to in Article 61 (2); (d) the authorities competent for enforcement referred to in Article 52; (e) the redress procedures referred to in Articles 61 and 62; (f) the names, addresses and means of communication for the Central Authorities designated pursuant to Article 76; (g) the categories of close relatives referred to in Article 82(2), where applicable; (h) the languages accepted for communications to Central Authorities pursuant to Article 91 (3); (i) the languages accepted for the translations pursuant to Article 80 (3), Article 81 (2), Article 82 (4) and Article 91 (2). 2. The Member States shall communicate the information referred to in paragraph 1 to the Commission by 23 April 2021. 3. The Member States shall communicate to the Commission any changes to the information referred to in paragraph 1. 4. The Commission shall make the information referred to in paragraph 1 publicly available through appropriate means, including through the European e-Justice Portal. I. Ratio legis . . . . . . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . .

1 2

III. Object of communication . . . . . . . . . . . .

3

IV. Means of gathering the relevant information .

6

V. Means of communication, (4) . . . . . . . . . VI. Changes to information, (3) . . . . . . . . . .

8 9

VII. Current list of information . . . . . . . . . . . 12

I. Ratio legis Art. 103 deals with an informal area the practical relevance of which can not possibly be 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. Art. 103 proceeds accordingly. Recital (94) does not add anything of substance: (94) The Commission should make publicly available and update the information communicated by the Member States.

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1

Art. 103 Brussels IIter Information to be communicated to the Commission

II. Legislative history 2

Art. 103 does not have a direct predecessor in the Brussels II Regulation. This should fall short 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. 103 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 3

The objects of communication prescribed in (1) are manyfold and go way beyond the catalogues contained in Arts. 67; 68 Brussels IIbis Regulation:2 (a) any authorities referred to in Arts. 2 (2) pt. (2) (b), pt. (3); 74 (2); (b) the courts and authorities competent to issue certificates as referred to in Arts. 36 (1); 66 and the courts competent to rectify certificates as referred to in Arts 37 (1); 48 (1); 49; 66 (3) in conjunction with Art. 37 (1); (c) the courts referred to in Arts. 30 (3); 52; 40 (1); 58 (1); 62 as well as the authorities and courts referred to in Art. 61 (2); (d) the authorities competent for enforcement referred to in Art. 52; (e) the redress procedures referred to in Arts. 61; 62; (f) the names, addresses and means of communication for the Central Authorities designated pursuant to Art. 76; (g) the categories of close relatives referred to in Art. 82 (2), where applicable; (h) the languages accepted for communications to Central Authorities pursuant to Art. 91 (3); (i) the languages accepted for the translations pursuant to Arts. 80 (3); 81 (2); 82 (4); 91 (2).

4

The topics listed have one basic and fundamental feature in common: The are located, and operate, on the interface between the regime of the Brussels IIter Regulation and the national judicial and administrative systems of the Member States. The EU does not own a competence to unify or harmonise those systems. Hence, it depends on the cooperation of, and execution by, the Member States in these regards.

5

(1) (f)–(i) 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 certificates)3.

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 cebtral authorities and which languages they are prepared to admit. They have this information immediately avaliable without incurring any additional cost. Hence they are the born cheapest information providers.

1 Kaller-Pröll in Fasching/Konecny, Art. 67 Brüssel IIa-VO note 1. 2 For details on the listed subjects see the commentaries on the respective Articles. 3 Rauscher in Rauscher, Art. 67 Brüssel IIa-VO note 4.

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V. Means of communication, (4) 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. 103 does not 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. 103 in the Official Journal. This would be the most appropriate way to make information publish. Furthermore, it would give the information particular credibility by the offical and authoritative status of the organ of publication.4

8

VI. Changes to information, (3) (3) obliges the Member States to communicate any relevant changes as to the material data to the 9 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 under Art. 67 (2) Brussels IIbis Regulation, 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.5 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.

10

If a Member State changes the material data but fails to communicate this to the Commission 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.

11

VII. Current list of information The current list of information as published by the Commission can be found under Art. 103: https://e-justice.europa.eu/37842/EN/brussels_iib_regulation__matrimonial_matters_and_matters_of_ parental_responsibility_recast

12

Additional information helpful in child abduction cases might be gathered via the homepage of the 13 Hague Conference for Private International Law under http://www.hcch.net/index_en.php?act=autho rities.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. 103. 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

4 5 6 7 8

Garber/Neumayr in Wieczorek/Schütze, ZPO, vol. 13/2 (4th ed. 2019), Art. 75 Brüssel Ia-VO note 2. Kaller-Pröll in Fasching/Konecny, Art. 67 note 1. Kaller-Pröll in Fasching/Konecny, Annex to Art. 103. Kaller-Pröll in Fasching/Konecny, Art. 103 note 1. Kaller-Pröll in Fasching/Konecny, Art. 103 note 1.

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Art. 104 Brussels IIter Repeal

Article 104 Repeal 1. Subject to Article 100 (2) of this Regulation, Regulation (EC) No 2201/2003 is repealed from 1 August 2022. 2. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex X.

I. Repeal of the Brussels IIbis Regulation, (1) 1

The Brussels IIter Regulation is a predator. It gobbles up, devours and swallows its predecessor, the Brussels IIbis Regulation. Whereas once the Brussels I Regulation did not treat the Brussels Convention in this manner, in the case of the Brussels IIbis 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 IIbis Regulation, either. The circle of states which are Member States to both Regulations is identical. An EU Regulation – not being a Treaty – offers the opportunity to provide for, and to profit immensely from, a uniform and simultaneous date of entry in force and a uniform and simultaneous date of application guaranteed for all Member States. Accordingly, (1) opts for a wholesale repeal of the Brussels IIbis Regulation.1

2

The technique chosen is alternative to simply amending the Brussels IIbis Regulation. Yet it opens the puzzling topic of terminology: If the Brussels IIbis Regulation had simply been amended the name for the entirety still would have been Brussels IIbis Regulation. By repealing and replacing the Brussels II Regulation, the new regulation could be called and was called alternately: Brussels II Regulation (Recast), 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 IIter 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.

3

Nonetheless, 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 IIB, accompanied by some English voices, and Brussels IIter being preferred in the Romanic countries and the Netherlands, accompanied by the remainder of English voices. The European legislator added to the difficulty since it did not promulgate an official short title for the Brussels IIter Regulation in brackets closing the official name of the Regulation in the OJ EU. The Rome I and Rome II Regulations would have presented respective role models.

4

At least, (1) should be blamed for the deplorable terminological situation that practitioners have to understand that they have to cope with a Brussels IIter Regulation whereas neither a Brussels IIbis Regulation nor a Brussels II Regulation do 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 Maintenance, Rome III, Matrimonial Property and Partnership Property Regulations as somewhat differently named uniform EU acts dealing with both jurisdiction for, and applicable law to, maintenance, divorce, matrimonial property or patrimonial effects of registered partnerships respectively saw the light.

5

Attention has to be given to a detail which needs to be duly noticed: The repeal of the Brussels IIbis Regulation takes effect as of the date of application of the Brussels IIter Regulation, not as of the date of entry into force of the Brussels IIter Regulation. Solely this is consistent with (1) itself becoming effective only as of 1 August 2022 by virtue of Art. 72 (1). Hence, the Brussels IIbis Regulation is repealed as of 1 August 2022 and not as of yy 1 August 2019. 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.2 The Community system as a whole does not suffer from an intertemporal gap.3 1 Quite evidently Art. 71 ratione materiae could not have any direct predecessor in the Brussels II Regulation. 2 Cf. Art. 46 (1) Brussels II Regulation.

660

Mankowski

Chapter IX: Final provisions

Art. 104 Brussels IIter

II. Alteration of references to the Brussels IIbis Regulation into references to the Brussels IIter Regulation, (2) Some other legal instruments enacted between the passing of the Brussels IIbis Regulation and the entry into force of the present Brussels IIter Regulation, refer to the Brussels IIbis Regulation. This concerns mainly national legal instruments, but could also be relevant for some EU (or formerly, EC) instruments to be identified in case. The by far most importance example for practical purposes appears to be Art. 5 Matrimonial Property Regulation.

6

(2) clarifies that all of these references shall be understood as references to the Brussels IIter Regula- 7 tion.4 This clarification in the Brussels IIter Regulation is more practicable than to change all legal instruments referring to the Brussels IIbis Regulation.5 Rectifying every single reference in every single Act concerned separately would have cost way too much effort,6 particularly since every single EU or EC Act amended would have had to be expessly mentioned in the title of the Brussels IIter Regulation, following established drafting practice of the EU legislature. Furthermore, altering every single reference separately would have suffered from the inherent danger overlooking something in spite of applying best efforts; an ‘automatic’ adaptation fares better in this regard. The other instruments should be read as though they were altered in the mentioned manner.7 This prevents them from becoming incomplete or incomprehensible.8 However, practitioners should be reminded that they must be aware that references to the Brussels IIbis Regulation are not what they appear to be at first sight.9 Many surprises might be hidden behind that for practitioners not familiar with international procedural law.10

8

The correction is carrying less weight than like alterations of references from old to new rules carry 9 in the revolving law reform of the EU in other fields of EU PIL. The number of instruments referencing the Brussels IIbis Regulation is rather small, compared for instance to instruments which had referenced the Brussels I Regulation. Fortunately, specific problems with Denmark cannot arise since the Brussels IIbis Regulation was not in force for Denmark, either.

10

Last but not least, one fact should not be overlooked: Annex X offers a considerable service to practi- 11 tioners for they can look up an official “translation” how the rules of the repealed Brussels IIbis Regulation fit into the system of the new Brussels IIter Regulation. The Correlation Table in Annex D, expressly pointed at in (2), is an excellent and most useful means in order to achieve the re-construction of the references covered. It avoids problems in identifying which new rule substitutes for which old one, and clarifies the extent of the derogation.11 Simply repealing without such service could have become an eternal source of possible misunderstandings and misapplications.12 Once practitioners have become familiar with, and used to, Annex D looking correlations up there is neither complicated not overly burdening.13

3 4 5 6 7 8 9 10 11 12 13

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, Brussels I Regulation (2011), Art. 68 note 4. Rüther in Brinkmann, Art. 91 note 3. Cf. Fuchs, ÖJZ 2005, 624, 626 on the parallel Art. 80 2nd sentence Brussels Ibis Regulation. J. Schmidt in Mankowski/M. Müller/J. Schmidt, Art. 91 note 4; Pogacar in Konecny, Art. 91 note 1 (Dec. 2018); Vallender in Vallender, Art. 91 note 2; O. Hermann in Uhlenbruck, Art. 91 note 1. Großerichter in Althammer, Art. 71 note 2. See Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 92 note 5. See Vallender in Vallender, EuInsVO (2nd ed. 2020), Art. 91 EuInsVO note 2; Mankowski in Magnus/Mankowski, EIR (2022), Art. 92 EIR note 4. See Mankowski in Magnus/Mankowski, EIR (to be published in 2023), Art. 92 note 4 and also Vallender in Vallender, EuInsVO (2nd ed. 2020), Art. 91 EuInsVO note 2. Contra Rauscher in Rauscher, Art. 25 EG-ZustellVO note 1; Pabst in Ahrens/Gehrlein/Ringstmeier, Insolvenzrecht (4th ed. 2020), Art. 91 EuInsVO note 2.

Mankowski

661

Art. 105 Brussels IIter Entry into force

Article 105 Entry into force 1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. 2. This Regulation shall apply from 1 August 2022, with the exception of Articles 92, 93 and 103, which shall apply from 22 July 2019.

I. Introductory remarks 1

In order to comply with the requirements established by Art. 288 subpara. 2 TFEU (ex Art. 254 (2) EC Treaty)1 Art. 105 (1) asserts as to when the Brussels IIter Regulation enters into force. The entry into force nevertheless concerns only the original Member States. With regard to the future Accession States which will become Member States of the EU only after 1 August 2022, 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 IIter Regulation will enter into force for future Accession States at latest at the date when they will become Member States of the EU, following the pattern established by (1).

II. Entry into force, (1) 2

In contrast to Art. 72 Brussels IIbis Regulation which named a certain date, (1) employs the subsidiary technique enshrined in Art. 297 (2) subpara 3 2nd sentence TFEU that Acts of EU law enter into force on the twentieth day following that of its publication in the Official Journal of the European Union unless a date is specified expressly.2

3

The Brussels IIter Regulation was published in No 178 of the OJ EU L on 2 July 2019; adding twenty days to that, makes 22 July 2019. The 22nd of July as the relevant date is indirectly confirmed by (2) in fine.

III. Becoming effective and applicable, (2) 4

(2) reiterates the now current and common standard for legislative acts in the field of European private international law (the latter term understood in the wider sense). It distinguishes between the entry in force as such and the date from which onwards the rules of the Brussels IIter Regulation ought to be applied. With the exception of Arts. 92, 93 and 103 the latter date for all other rules was 1 August 2022. Yet 22 July 2019 saw the rules relevant for the general public become effectively applicable.3 Member States were to be given time to prepare whereas the Commission had to collect information and to establish the lists mentioned in Arts. 92, 93 and 103 from the outset. In particular, Art. 103 imposed a duty upon the Member States so that if such duty was complied with, the lists could be compiled and published on 22 July 2022 in order to enable courts to employ the Brussels IIter Regulation effectively.

5

For practical purposes it should be recalled that neither the entry into force nor the Brussels IIter Regulation becoming applicable as such automatically trigger the application of the Brussels IIter

1 Not Art. 288 subpara. 1 2nd sentence TFEU as Kropholler/von Hein, Art. 76 EuGVVO note 1 generally assumes; the Brussels IIter Regulation was passed not in co-adaptation by Council and Parliament but under the procedure by virtue of Art. 81 (3) TFEU; cf. Staudinger in Rauscher, Art. 76 Brüssel Ia-VO note 1; Mankowski in Magnus/Mankowski, Art. 76 Brussels Ibis Regulation (2022) note 1 fn. 1. 2 Pogacar in Konecny, Art. 92 note 1 (Dec. 2018); Pabst in Ahrens/Gehrlein/Ringstmeier, Art. 92 note 2. 3 A-G Kokott, (2007) ECR I-10144, I-10165, para. 63.

662

Mankowski

Chapter IX: Final provisions

Art. 105 Brussels IIter

Regulation in proceedings already pending on the respective date: Whether the Brussels IIter Regulation applies in a concrete case, ought to be ascertained by virtue of Art. 100.4 This Regulation shall be binding in its entirety and directly applicable in the Member States. Done at Luxembourg, 25 June 2019. For the Council The President A. Antonen The final sentence of the entire Regulation, not directly and formally belonging to Art. 105, declaratorily re-iterates the direct effect of the Regulation. Even without this clause existing, the very same result would necessarily follow from Art. 288 subpara. 2 TFEU.5 The primary purpose of the clause is to remind practitioners not familiar with EU law of the primacy of EU law and of the working method of EU Regulations.

6

“Member States” has to be read in conjunction with, and in the light of, Recital (96) excluding Denmark. It refres to Member States of the Brussel IIbis Regulation, not to Member States of the EU.

7

4 Rauscher in Rauscher, Art. 72 note 1. 5 Staudinger in Rauscher, Art. 76 Brüssel Ia-VO note 1; Mankowski in Magnus/Mankowski, Brussels Ibis Regulation (2022), Art. 76 note 2.

Mankowski

663

Annexes Annex I Certificate to be issued by the court following a decision refusing the return of a child to another member state based solely on point (b) of article 13(1), or on article 13(2), or both, of the 1980 hague convention1 (Article 29(2) of Council Regulation (EU) No 2019/11112) See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-52-1

Annex II Certificate concerning decisions in matrimonial matters (Point (a) of Article 36(1) of Council Regulation (EU) 2019/11113) See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-58-1

Annex III Certificate concerning decisions in matters of parental responsibility (Point (b) of Article 36(1) of Council Regulation (EU) 2019/11114) See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-62-1

Annex IV Certificate concerning decisions ordering the return of a child to another member state pursuant to the 1980 hague convention (1)5 and any provisional, including protective, measures taken in accordance with article 27(5) of the regulation accompanying them (Point (c) of Article 36(1) of Council Regulation (EU) 2019/1111 (2)6) See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-73-1

Annex V Certificate concerning certain decisions granting rights of access (Point (a) of Article 42(1) and point (a) of Article 47(1) of Council Regulation (EU) 2019/1111 (1)7) See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-80-1

Annex X Correlation table See: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1111&from=en#d1e32-110-1 1 Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’). 2 Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1) (‘the Regulation’). 3 Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1) (‘the Regulation’). 4 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1) (‘the Regulation’). 5 Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’). 6 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1) (‘the Regulation’). 7 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1) (‘the Regulation’).

665

Knöfel

667

Av B

Aannemingsbedrijf Aertssen NV and Aertssen Terrassements SA v VSB Machineverhuur BV and Others

Joseba Andoni Aguirre Zarraga v Simone Pelz

Av B

Aannemingsbedrijf Aertssen and Aertssen Terrassements

Aguirre Zarraga

Meletis Apostolides v David Charles and Linda Elizabeth Orams

C-523/14

Av B

A

Apostolides v Orams

C-489/14

A v B and Others

A

C-420/07

C-491/10 PPU

C-262/21 PPU

C-112/13

C-523/07

A

A

Case

Name

Short

ECLI:EU:C:2015:654

ECLI:EU:C:2021:640

ECLI:EU:C:2014:2195

[2009] ECR I-2805

Reported in

28 April 2009

22 December 2010

[2009] ECR I-3571

[2010] ECR I-14247

22 October 2015 ECLI:EU:C:2015:722

6 October 2015

2 August 2021

11 September 2014

2 April 2009

Date

The first number indicates the relevant article, the second number relates to the respective note within the commentary on this article.

European Court of Justice (ECJ)

Table of Cases

34/6; 51/1; 51/7; 55/2

Introduction/177; 21/12; 21/19; 24/8; 28/1; 29/2; 29/23; 39/11; 39/18; 41/6; Introduction 42–50 et seq./1; 43/8; 47/2; 47/19; 47/ 21; 47/27; 47/43; 47/44; 48/5

17/40

Introduction/145; 17/7; 17/60; 20/1; 20/4; 20/7; 20/14; 20/38; 20/50; 20/65; 20/83; 20/84

2/29; 42/4

Introduction/177

Introduction/83; Introduction/ 115; Introduction/144; 1/15; 3/ 34; 7/17; 7/20; 7/24; 7/25; 7/26; 7/27; 7/34; 7/37; 7/38; 7/41; 7/ 45; 7/48; 11/1; 11/24; 11/25; 12/ 18; 12/23; 15/24; 15/27; 15/30; 15/33; 15/37; 18/30; Introduction 30–37/22; 50/25; 50/27; Introduction 76–84/6; 78/5; 80/ 1; 80/5; 80/13; 97/12

Quotations

C-306/99

Banque internationale pour l’Afrique occidentale SA (BIAO) v Finanzamt für Großunternehmen in Hamburg

Christophe Bohez v Ingrid Wiertz

Bolagsupplysningen OÜ and C-194/16 Ingrid Ilsjan v Svensk Handel AB

BIAO v Finanzamt für Großunternehmen in Hamburg

Bohez

Bolagsupplysningen and Ilsjan

Knöfel C-220/95 C-498/14 PPU

van den Boogaard v Lau- Van den Boogaard v Laumen men

David Bradbrooke v. Anna Aleksandrowicz

Calzaturificio Brennero s.a.s. 258/83 v Wendel GmbH Schuhproduktion International

Bradbrooke v. Aleksandrowicz

Brennero s.a.s. v Wendel GmbH

C-4/14

C-269/95

Benincasa v Dentalkit Srl Francesco Benincasa v Dentalkit Srl

668 Reported in

ECLI:EU:C:2015:563

[2003] ECR I-00001

[1997] ECR I-3767

ECLI:EU:C:2016:603

ECLI:EU:C:2014:1754

27 November 1984

9 Jabuary 2015

27 February 1997

[1984] ECR 3971

EU:C:2015:3

[1997] ECR I-1147

17 October 2017 ECLI:EU:C:2017:766

9 September 2015

7 January 2003

3 July 1997

28 July 2016

C-379/15

Association France Nature Environnement v Premier ministre and Ministre de l’Écologie, du Développement durable et de l’Énergie

Association France Nature Environnement

Date 12 June 2014

Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta

Case

Name

Ascendi Beiras Litoral e Alta, C-377/13 Auto Estradas das Beiras Litoral e Alta SA v Autoridade Tributária e Aduaneira

Short

Quotations

62/5

15/2; 24/8; 29/19

1/40; 53/4

Introduction/112

Introduction 42–50 et seq./6; 42/ 7; 43/6; 45/7

Introduction/121

Introduction/5

Introduction/132

Introduction/124

Table of Cases

CvM

Mary Carpenter v Secretary of State for the Home Department

Carron v Federal Republic of 198/85 Germany

Cartier parfums-lunettes SAS and Axa Corporate Solutions Assurance SA v. Ziegler France SA

CvM

Carpenter v Secretary of State

Carron v Germany

Cartier parfums-lunettes SAS

Case

C

Srl CILFIT and Lanificio di Gavardo SpA v Ministero della Sanità

Relu Adrian Coman and Others v Inspectoratul General pentru Imigra˘ri and Ministerul Afacerilor Interne

Commission of the EurC-170/98 opean Communities v Kingdom of Belgium

CILFIT v Ministero della Sanità

Coman and Others

Commission v Belgium

143/78

C.E. and N.E.

C-673/16

283/81

C-325/18 PPU

de Cavel v de Cavel

Hampshire County Council v C.E. and N.E.

de Cavel v de Cavel

C-1/13

C-60/00

C-376/14 PPU

C-435/06

Name

C

Short

Date

14 September 1999

5 June 2018

6 October 1982

19 September 2018

27 March 1979

27 February 2014

10 July 1986

11 July 2002

9 October 2014

27 November 2007

Reported in

ECLI:EU:C:1999:411

ECLI:EU:C:2018:385

[1982] ECR 3415

ECLI:EU:C:2018:739

[1979] ECR 1055

ECLI:EU:C:2014:109

[1986] ECR 2437

[2002] ECR I-6279

ECLI:EU:C:2014:2268

[2007] ECR I-10141

Quotations

96/11

Introduction/102; 1/23; 38/16

Introduction/119; Introduction/ 130; Introduction/132; Introduction/133

22/1; Introduction 30–37/35

1/40

20/4; 20/65

51/10

Introduction/24

2/29; 7/23; 7/36; 9/11; 22/5; 22/ 7; Introduction 76–84/8; Introduction 76–84/10

Introduction/109; Introduction/ 110; Introduction/113; Introduction/144; 1/15; 15/33; Introduction 30–37/22; 42/4; 82/5; 94/14; 94/18; 94/20; 97/12; 100/ 6

European Court of Justice (ECJ)

Knöfel

669

670

Commission of the EurC-467/89 opean Communities v Kingdom of Denmark

European Commission v French Republic

Commission of the European Communities v Portuguese Republic

Commission of the European Communities v Portuguese Republic

Commission v Denmark

Commission v France

Knöfel

Commission v Portugal

Commission v Portugal

Custom Made Commercial Ltd. v Stawa Metallbau GmbH

CV v DU

Child and Family Agency v J. D.

Custom Made Commercial Ltd. v Stawa Metallbau GmbH

CV

D.

D. and Sweden v Council D. and the Kingdom of Swe- C-122/99 of Ministers den v Council of Ministers

C-428/15

C-85/18 PPU

288/92

ECLI:EU:C:2018:220

[1994] ECR I-2913

[1999] ECR I-2543

[1963] ECR 63

ECLI:EU:C:2000:359

ECLI:EU:C:2000:358

ECLI:EU:C:2018:811

[2002] ECR I-9519

[1971] ECR 263

Reported in

31 May 2001

[2002] ECR I-4319

27 October 2016 ECLI:EU:C:2016:819

10 April 2018

29 June 1994

29 April 1999

Éric Coursier v Fortis Bank SA, Martine Coursier, née Bellami

Coursier v Fortis Bank C-267/97

27 March 1963

4 July 2000

4 July 2000

4 October 2018

5 November 2002

31 March 1971

Date

Da Costa en Schaake NV Da Costa en Schaake NV Ja- 28–30/62 v Netherlands Inland cob Meijer NV HoechstRevenue Administration Holland NV v Netherlands Inland Revenue Administration

C-84/98

C-62/98

C-416/17

22/70

Commission v Council

Commission v Council

Case

Name

Short

1/20; 1/21; 1/32

Introduction/146; 7/3; 10/40; 12/9; 12/10; 12/17; 12/27; 12/32; 12/34; 12/36; 12/39; 12/40; Sec. 3/11

7/65; 9/4

Introduction/5

34/6

Introduction/132; Introduction/ 137

96/11

96/11

Introduction/132

Introduction/49

Introduction/49

Quotations

Table of Cases

Knöfel

Jasna Deticˇek v Maurizio Sgueglia

Agenzia Italiana del Farmaco C-452/14 (AIFA) and Ministero della Salute v Doc Generici srl

Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV, Parc Healthcare International Ltd v Omnipol Ltd

Eco Swiss China Time Ltd v Benetton International NV.

E. v B.

Deutsche Genossenschaftsbank v SA Brasserie du Pêcheur.

Deticˇek v Sgueglia

Doc Generici

Draka NK Cables Ltd. v Omnipol Ltd.

Eco Swiss

E

E. E.

Deutsche Genossenschaftsbank v SA Brasserie du Pêcheur.

Data Delecta Aktiebolag v MSL Dynamics

E. E.

Data Delecta Aktiebolag and C-43/95 Ronny Forsberg v MSL Dynamics Ltd.

Danmarks Rederiforening v LO Landsorganisationen i Sverige

C-80/19

C-436/13

C-126/97

C-167/08

C-403/09 PPU

148/84

Danmarks Rederiforening, C-18/02 acting on behalf of DFDS Torline A/S v LO LandsorganisatIonen i Sverige, acting on behalf of SEKO Sjófolk Facket fór Service och Kommunikation

van Dalfsen v van Loon and Berendsen

Case

Name

B.J. van Dalfsen and others v C-183/90 B. van Loon and T. Berendsen

Short

Date

16 July 2020

1 October 2014

1 June 1999

23 April 2009

1 October 2015

23 December 2009

27 September 1968

26 September 1996

5 February 2004

4 October 1991

ECLI:EU:C:2020:569

ECLI:EU:C:2014:2246

[1999] ECR I-3055

[2009] ECR I-3477

ECLI:EU:C:2015:644

[2009] ECR I-12193

[1985] ECR 1981

[1996] ECR I-4661

[2004] ECR I-1417

[1991] ECR I-4743

Reported in

1/7; 3/33; 38/10; 38/32

7/46; 7/57; 8/34; 10/46; 10/47; 10/52; 12/24

Introduction/124

61/4

Introduction/132

7/3; 7/19; 9/13; 15/20; 15/21; 15/ 30; 15/33; 20/13; 20/20; 20/23; 24/8; 29/23

51/1; 51/6; 61/4

75/13

Introduction/127; Introduction/ 161

63/1; 63/12

Quotations

European Court of Justice (ECJ)

671

672

Pedro Magdalena Fernández C-452/93 P v CommI oft he European Communities

João Filipe Ferreira da Silva e Brito and Others v Estado português

G v Cornelius de Visser

Gantner Electronic v Basch C-111/01 Exploitatie Maatschappij BV

Carlos Garcia Avello v État Belge

Erich Gasser GmbH v MISAT Srl

Vasilka Ivanova Gogova v Ilia Dimitorv Iliev

Gothaer Allgemeine Versicherung AG and Others v Samskip GmbH

BUAK Bauarbeiter-Urlaubs- C-579/17 u. Abfertigungskasse v Gradbenisˇtvo Korana d.o.o.

Group Josi Reinsurance C-412/98 Company SA v Universal General Insurance Company (UGIC)

Laszlo Hadadi (Hadady) v C–168/08 Csilla Marta Mesko, married name Hadadi (Hadady)

Fernández v Commission

Ferreira da Silva e Brito and Others

G v de Visser

Gantner Electronic v Basch Exploitatie Maatschappij

Garcia Avello v État Belge

Gasser GmbH v MISAT Srl

Gogova v Iliev

Gothaer Allgemeine Versicherung and Others

Gradbenisˇtvo Korana

Group Josi Reinsurance Company SA v Universal General Insurance Company (UGIC)

Hadadi v Mesko (Hadady)

Case

EP v FO

Knöfel C-456/11

C-215/15

C-116/02

C-148/02

C-292/10

C-160/14

C-530/18

Name

EP v FO

Short

Date

Reported in

[2003] ECR I-14693

[2003] ECR I-11613

[2003] ECR I-4207

ECLI:EU:C:2012:142

ECLI:EU:C:2015:565

[1994] ECR I-4295

ECLI:EU:C:2019:583

16 July 2009

13 July 2000

28 February 2019

15 November 2012

[2009] ECR I-6871

[2000] ECR I-5925

ECLI:EU:C:2019:162

ECLI:EU:C:2012:719

21 October 2015 ECLI:EU:C:2015:710

9 December 2003

2 October 2003

8 May 2003

15 March 2012

9 September 2015

15 September 1994

10 July 2019

Quotations

Introduction/144; 3/3; 17/42; 17/44; 18/30

Introduction/150

Introduction/112; 35/3; 36/5

16/17

1/15; 1/70; 10/27; 10/33; 98/4

Introduction/3; 17/2; 20/62; 20/ 91; 38/44

Introduction/25; 3/39

Introduction/129; Introduction/ 136; 20/33

19/17a

Introduction/132; Introduction/ 178; Introduction/179; 16/39

Introduction/110; Introduction/ 115; 3/33; 7/17

Introduction/146; 12/10; 12/27; 12/40; 12/49; 79/11

Table of Cases

C-106/17

C-163/95 C-86/00

Hengst Import BV v Anna Maria Campese

Horst Ludwig Martin Hoffmann v Adelheid Krieg

Paweł Hofsoe v LVM Landwirtschaftlicher Versicherungsverein Münster AG

Anthony Hubbard (Testamentvollstrecker) v Peter Hamburger

Hoffmann v Krieg

Hofsoe

Freifrau von Horn v Cin- Elsbeth Freifrau von Horn v namond Kevin Cinnamond

HSB-Wohnbau GmbH

Hengst Import v Campese

HSB-Wohnbau GmbH

Hubbard v Hamburger

Case

Health Service Executive v SC and AC

Health Service Executive

12/76

Industrie Tessili Italiana Como v Dunlop AG

Industrie Tessili Italiana Como v Dunlop AG

Todor Iliev v Blagovesta Ilie- C-67/17 va

Iliev 43/77

C-289/20

IB v FA

IB

Industrial Diamond Sup- Industrial Diamond Supplies v Luigi Riva plies v Luigi Riva

C-327/10

Hypotecˇní banka v Lind- Hypotecˇní banka a.s. v Udo ner Mike Lindner

C-20/92

C-145/86

C-474/93

C-92/12 PPU

Name

Short

Date

6 October 1976

22 November 1977

14 June 2017

25 November 2021

17 November 2011

1 July 1993

10 July 2001

9 October 1997

31 January 2018

4 February 1988

13 July 1995

26 April 2012

Reported in

[1976] ECR 1473

[1977] ECR 2175

ECLI:EU:C:2017:459

ECLI:EU:C:2021:955

[2011] ECR I-11543

[1993] ECR I-3777

[2001] ECR I-5353

[1997] ECR I-5451

ECLI:EU:C:2018:50

[1988] ECR 645

[1995] ECR I-2113

ECLI:EU:C:2012:255

Quotations

Introduction/121

9/50; 30/4; 63/8

1/40

3/33; 7/22; 7/48

19/17a

75/13

Introduction/123

100/14; 100/15

Introduction/112

38/60; 50/30; 57/4; 63/12

17/14

1/15; 15/2; 15/30; Introduction 30–37/22; Introduction 42–50 et seq./9; 42/3; 43/8; 47/43; 72/36; Introduction 76–84/3; Introduction 76–84/6; 76/6; 79/1; 79/9; 82/1; 82/5; 82/8; 82/10; 82/17; 82/18; 97/12

European Court of Justice (ECJ)

Knöfel

673

674

Italian Leather SpA v WECO C-80/00 Polstermöbel GmbH & Co.

J. McB. v L. E.

JE v KF

Saale Kareda v Stefan Benkö

Kleinwort Benson Ltd. v City of Glasgow District Council

Italian Leather v WECO

J. McB. v L. E.

JE

Kareda

Kleinwort Benson v City of Glasgow

Case

IQ

Knöfel C-7/98

Dieter Krombach v André Bamberski

Hellenische Republik v Leo Kuhn

LvM

Götz Leffler v Berlin Chemie C-443/03 AG

Stefano Liberato v Luminita Luisa Grigorescu

Kenny Roland Lyckeskog

Mærsk Olie & Gas A/S v Fir- C-39/02 ma M. de Haan en W. de Boer

Krombach v Bamberski

Kuhn

L

Leffler

Liberato

Lyckeskog

Mærsk Olie & Gas

C-99/00

C-386/17

C-656/13

C-308/17

C-224/01

Köbler v Republik Öster- Gerhard Köbler v Republik reich Österreich

C-346/93

C-249/16

C-249/19

C-400/10 PPU

C-478/17

Name

IQ v JP

Short

Date

[2002] ECR I-4839

ECLI:EU:C:2019:24

[2005] ECR I-9611

ECLI:EU:C:2014:2364

ECLI:EU:C:2018:911

[2000] ECR I-1935

[2003] ECR I-10239

[1995] ECR I-615

ECLI:EU:C:2017:472

ECLI:EU:C:2020:570

[2010] ECR I-8965

[2002] ECR I-4995

ECLI:EU:C:2018:812

Reported in

14 October 2004 [2002] ECR I-9657

4 June 2002

16 January 2019

8 November 2005

12 November 2014

15 November 2018

28 March 2003

30 September 2003

28 March 1995

15 June 2017

16 July 2020

5 October 2010

6 June 2002

4 October 2018

20/3

Introduction/128

Introduction/145; 18/1; 20/126; 38/35; 38/44; 69/3; 69/17

17/17

10/31; 10/52; 18/1

Introduction/112

Introduction/121; 38/40; 38/41; 69/6

Introduction/178; Introduction/ 179; 16/39

Introduction/121

Introduction/112

3/48

Introduction/177; 1/69; 1/70; 2/ 23; 2/29; 20/58; Introduction 76–84/10

50/30

Introduction/146; 12/14; 12/26; 12/27; Sec. 3/11; 20/61

Quotations

Table of Cases

SS v MCP

Merck Canada Inc. v Accord C-555/13 Healthcare Ltd and Others

Barbara Mercredi v Richard Chaffe

MH v MH

Hans-Hermann Mietz v Intership Yachting Sneek BV

Edyta Mikolajczyk v Marie Luise Czarnecka and Stefan Czarnecki

M.S. v P.S.

The Netherlands v Reed

Land Nordrhein-Westfalen v C-64/96 and C-65/96 Kari Uecker and Vera Jacquet v Land NordrheinWestfalen

Matousˇková

MCP

Merck Canada

Mercredi v Chaffe

MH v MH

Mietz

Mikolajczyk v Czarnecki

M.S. v P.S.

Netherlands v Reed

Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen

59/85

C-283/16

C-294/15

C-99/96

C-173/16

C-497/10 PPU

C-603/20 PPU

C-404/14

Matousˇková

Magdalena Fernández v Commission

Case

Name

Pedro Magdalena Fernández C-452/93 P v Commission of the European Communities

Short

Date

Reported in

ECLI:EU:C:1999:202

ECLI:EU:C:2016:452

[2010] ECR I-14309

ECLI:EU:C:2014:92

ECLI:EU:C:2021:231

ECLI:EU:C:2015:653

[1994] ECR I-4295

5 June 1997

17 April 1986

9 February 2017

[1997] ECR I-3171

[1986] ECR 1283

ECLI:EU:C:2017:104

13 October 2016 ECLI:EU:C:2016:772

27 April 1999

22 June 2016

22 December 2010

13 February 2014

24 March 2021

6 October 2015

15 September 1994

Quotations

Introduction/25

1/22

Introduction 76–84/6; 78/7

1/55; 3/10; Introduction 30–37/ 30; 38/21; 98/4

69/13

3/18; 17/1; 17/7; 17/34; 17/38; 20/1; 20/6

Introduction/115; Introduction/ 144; 3/34; 7/17; 7/24; 7/25; 7/26; 7/27; 7/28; 7/31; 7/47; 7/52; 9/ 19; 9/63 20/53; 22/7; Introduction 30–37/24; 50/25; 50/27; Introduction 76–84/8

17/62a

Introduction/3; 9/2; 9/8; 9/9; 9/ 24; 9/35; 9/44; 22/8

1/70; 1/73; 16/17; 16/26; Introduction 30–37/33

Introduction/115; 3/33; 7/17

European Court of Justice (ECJ)

Knöfel

675

676

Knöfel

OF v PG

Owens Bank Ltd v Fulvio C-129/92 Bracco and Bracco Industria Chimica SpA

Andrew Owusu v N.B. Jackson, trading as ‘Villa Holidays Bal-Inn Villas’ and Others

PvM

PvQ

Doris Povse v Mauro Alpago C-211/10 PPU

Bianca Purrucker v Guillermo Vallés Pérez

Nothartová

OF

Owens Bank v Bracco

Owusu v Jackson and Others

PvM

PvQ

Povse

Purrucker v Vallés Pérez

C-256/09

C-455/15 PPU

C-507/14

C- 281/02

C-759/18

C-306/17

Éva Nothartová v Sámson József Boldizsár

Nordsee v Nordstern

Case

Name

Nordsee Deutsche Hochsee- 102/81 fischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co. KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co. KG

Short

Date

15 July 2010

1 July 2010

19 November 2015

16 July 2015

1 March 2005

20 January 1994

3 October 2019

31 May 2018

23 March 1982

Reported in

[2010] ECR I-7353

ECLI:EU:C:2010:400

ECLI:EU:C:2015:763

ECLI:EU:C:2015:512

[2005] ECR I-1383

[1994] ECR I-117

ECLI:EU:C:2019:816

ECLI:EU:C:2018:360

[1982] ECR 1095

Quotations

9/13; 15/3; 15/12; 15/16; 15/21; 15/24; 15/34; 15/36; 27/22; 69/3; 69/12; 69/13; Introduction 76–84/6

9/1; 9/25; 9/55; 9/56; 22/7; 24/8; 28/1; 29/2; 29/19; 29/23; 29/25; 39/11; 41/2; 41/6; 42/10; 44/7; 44/8; 45/7; 47/9; 47/44; 48/1; 48/ 4; 48/5; 50/2; 50/13

38/34; 38/39; 39/7; 39/9; 69/3

Introduction/145; 17/1; 17/16; 17/34; 17/38; 17/44a

Introduction/5; Introduction/ 150; 3/17; 20/21

Introduction/5; Introduction 30–37/15

1/58; 1/73; 2/25; 2/26; 3/5; 18/1; 42/4

Introduction/112

Introduction/124

Table of Cases

Name

Bianca Purrucker v Guillermo Vallés Pérez

Norbert Reitbauer and Others v Enrico Casamassima

Régie Nationale des Usines Renault SA v Maxicar SpA, Orazio Formento

Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV

Inga Rinau

Soha Sahyouni v Raja Mamisch

Stephen Austin Saldanha and MTS Securities Corporation v Hiross Holding AG

Alessandro Salvoni v Anna Maria Fiermonte

Short

Purrucker v Vallés Pérez

Reitbauer and Others

Renault v Maxicar

Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV

Rinau

Sahyouni

Saldanha and MTS v Hiross

Salvoni

Case

C-347/18

C-122/96

C-372/16

C-195/08

C-51/97

C-38/98

C-722/17

C-296/10

Date

Reported in

[2000] ECR I 2973

ECLI:EU:C:2019:577

[2010] ECR I-11163

4 September 2019

2 October 1997

20 December 2017

11 July 2008

ECLI:EU:C:2019:661

[1997] ECR I-5325

ECLI:EU:C:2017:988

[2008] ECR I-5271

27 October 1998 [1998] ECR I-6511

11 May 2000

10 July 2019

9 November 2010

Quotations

36/5

75/13

1/7bis; Introduction 30–37/26; 38/11; 95/11

Introduction/6; Introduction/8; Introduction/111; Introduction/ 141; 1/71; 24/8; 28/1; 29/2; 29/ 23; 36/9; 41/10; Introduction 42–50 et seq./1; Introduction 42–50 et seq./2; Introduction 42–50 et seq./4; Introduction 42–50 et seq./8; Introduction 42–50 et seq./10; 42/11; 42/12; 42/17; 47/38; 47/39; 47/40; 47/ 43; 47/44; 48/1; 69/3

Introduction/5

Introduction/121; 38/42

Introduction/112

7/13; 7/14; 15/12; 18/1; 20/1; 20/ 3; 20/54; 20/55; Introduction 30–37/37; 38/35; 69/3; 69/13; Introduction 76–84/6; 79/11

European Court of Justice (ECJ)

Knöfel

677

678 Case in progress 11 August 1995

C-646/20

Egon Schempp v Finanzamt München V

Brigitte Schlömp v Landratsamt Schwäbisch Hall

Senatsverwaltung für Inneres und Sport

Société d’informatique (SIS- C-432/93 RO) service réalisation organisation v Ampersand Software BV

Volker Sonntag v Hans Waldmann

St. Paul Dairy Industries NV C-104/03 v Unibel Exser BVBA

Schlömp

Senatsverwaltung für Inneres und Sport

SISRO v Ampersand Software BV

Sonntag v Waldmann

St. Paul Dairy

Date

Knöfel C-68/07

Kerstin Sundelind Lopez v Miguel Enriquen Lopez Lizazo

Robin Swaddling v Adjudication Officer

Tibor-Trans Fuvarozó és Kereskedelmi Kft. v DAF TRUCKS N.V.

Toplofikatsia Sofia EAD et. al

Sundelind Lopez v Miguel Enriquen Lopez Lizazo

Swaddling

Tibor-Trans

Toplofikatsia

C-208/20, C-256/20

C-451/18

C-90/97

C-96/04

Standesamt Stadt Niebüll Standesamt Stadt Niebüll v v Stefan Grunkin, DorStefan Grunkin, Dorothee othee Regina Paul Regina Paul

C-172/91

C-467/16

C-403/03

9 September 2021

29 July 2019

25 February 1999

29 November 2007

27 April 2006

28 April 2005

21 April 1993

20 December 2017

12 July 2005

19 April 2018

Schempp v Finanzamt München V

Case

Saponaro

C-565/16

Name

Alessandro Saponaro and Kalliopi-Chloi Xylina

Short

Reported in

ECLI:EU:C:2021:719

ECLI:EU:C:2019:635

[1999] ECR I-1075

[2007] ECR I-10403

[2006] ECR I-03561

[2005] ECR I-3481

[1993] ECR I-1963

[1995] ECR I-2269

Case in progress

ECLI:EU:C:2017:993

[2005] ECR I-6421

ECLI:EU:C:2018:265

Quotations

79/6

Introduction/112

3/33

Introduction/4; Introduction/5; Introduction/9; Introduction/ 54; Introduction/151; 3/9; 6/6; 15/15; 18/6; 18/14; 18/27

Introduction/25

17/20

17/15; 19/19; 61/4; 62/8

63/14

Intro to Art. 64/3; 65/4

17/62a

Introduction/25

1/70; 10/21; 10/39; 10/45; 16/17; 16/25; 16/26

Table of Cases

C-589/10

W and V v X

WB v Notariusz Przemysława Bac

´ ski v Mediatel Artur Weryn 4B spółka z o.o.

Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department

Unibank A/S v Christensen

Valcheva

W and V

WB

Weber v Universal Ogden Herbert Weber v Universal Services Ltd Ogden Services Ltd

Janina Wencel v Zakład ´ Społecznych w Ubezpieczen Białymstoku

UD

Wencel

´ ski Weryn

Zhu, Chen v Secretary of State for the Home Department

ZW

Neli Valcheva v Georgios Ba- C-335/17 banarakis

C-37/00

UD v XB

Unibank A/S v Flemming G. C-260/97 Christensen

C-658/17

Gregory Paul Turner v Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA

Turner v Grovit, Harada Ltd and Changepoint SA

Case

Traghetti del Mediterraneo

C-454/19

C-200/02

C-283/09

C-499/15

C-393/18 PPU

C-159/02

C-173/03

Name

Traghetti del Mediterraneo SpA v Repubblica italiana

Short

Date

Reported in

[2004] ECR I-3565

ECLI:EU:C:2006:391

ECLI:EU:C:2011:85

ECLI:EU:C:2013:303

[2002] ECR I-2013

ECLI:EU:C:2019:444

ECLI:EU:C:2017:118

ECLI:EU:C:2018:359

[1999] ECR I-3715

ECLI:EU:C:2020:947

19 October 2004 [2004] ECR I-9925

17 February 2011

16 May 2013

27 February 2002

23 May 2019

15 February 2017

31 May 2018

17 June 1999

17 October 2018 ECLI:EU:C:2018:835

27 April 2004

13 June 2006

Quotations

Introduction/3

Introduction/25

83/2

3/37

Introduction/57

1/7

7/11; 8/1; 8/15; 8/16; 18/1

2/35; 7/52; Introduction 30–37/ 32; 42/6

2/18; 64/3

Introduction/5; 3/38; 7/10; 7/19; 7/26; 7/28; 7/32; 7/33; 7/34; 50/ 27

Introduction/3; 20/114

Introduction/178; Introduction/ 179; 16/39; 78/3

European Court of Justice (ECJ)

Knöfel

679

Table of Cases

European Court of Human Rights (ECHR) The first number indicates the relevant article. the second number relates to the respective note within the commentary on this article. ECHR Avotin, ˇs v. Latvia, no. 17502/07, 25 February 2014, ECLI:CE:ECHR:2014: 0225JUD001750207

38/49

ECHR Babiarz v. Poland, no. 1955/10, 10 January 2017, ECLI:CE:ECHR:2017: 0110JUD000195510

3/48

ECHR Bianchi v. Switzerland, no. 7548/04, 22 June 2006, ECLI:CE:ECHR:2006: 0622JUD000754804

24/2; 27/7

ECHR Carlson v. Switzerland, no. 49492/06, 6 November 2008, ECLI:CE:ECHR: 2008:1106JUD004949206

24/2

ECHR Dore v. Portugal, no. 775/08, 1 February 2011, ECLI:CE:ECHR:2011: 0201JUD000077508

24/2

ECHR Eriksson v. Sweden, no. 11373/85, 22 June 1989, ECLI:CE:ECHR:1989: 0622JUD001137385

Introduction 42–50 et seq./12

ECHR Eskinazi and Chelouche v. Turkey, no. 14600/05, 6 December 2005, ECLI:CE: ECHR:2005:1206DEC001460005

24/2

ECHR Henrioud v. France, no. 21444/11, 5 November 2015, ECLI:CE:ECHR:2015: 1105JUD002144411

24/2

ECHR Hoholm v. Slovakia, no. 35632/13, 13 January 2015, ECLI:CE:ECHR:2015: 0113JUD003563213

24/2

ECHR Karoussiotis v. Portugal, no. 23205/08, 1 February 2011, ECLI:CE:ECHR:2011: 24/2 0201JUD002320508 ECHR Karrer v. Romania, no. 16965/10, 21 February 2012, ECLI:CE:ECHR:2012: 0221JUD001696510

24/2

ECHR Leschiutta and Fraccaro v. Belgium, no. 58081/00 and 58411/00,17 July 2008, ECLI:CE:ECHR:2008:0717JUD005808100

24/2

ECHR López Guió v. Slovakia, no. 10280/12, 3 June 2014, ECLI:CE:ECHR:2014: 0603JUD001028012

24/2

ECHR Macready v. Czech Republic, no. 4824/06 and 15512/08, 22 April 2010, ECLI: CE:ECHR:2010:0422JUD000482406

24/2

ECHR Marckx v. Belgium no. 6833/74, 13 June 1979, ECLI:CE:ECHR:1979: 0613JUD000683374

Introduction/20

ECHR Mazurek v. France, no. 34406/97, 1 February 2000, ECLI:CE:ECHR:2000: 0201JUD003440697

Introduction/20

ECHR Monory v. Hungary and Romania, no. 71099/01, 5 April 2005, ECLI:CE: ECHR:2005:0405JUD007109901

24/2

ECHR Pellegrini v. Italy, no. 30882/96, 20 July 2001, ECLI:CE:ECHR:2001: 0720JUD003088296

38/47; 41/6

ECHR Pla and Puncernau v. Andorra, no. 69498/01, 13 July 2004, ECLI:CE:ECHR: 2004:0713JUD006949801

Introduction/20

ECHR Scozzari and Giunta v. Italy, no. 39221/98 and 41963/98, 13 July 2000, ECLI: CE:ECHR:2000:0713JUD003922198

Introduction/28

680

Knöfel

European Court of Human Rights (ECHR) ECHR Seredyn´ski v. Poland, no. 61811/14, 25 September 2018, ECLI:CE:ECHR:2018: 3/48 0925DEC006181114 ECHR Wunderlich v. Germany, no. 18925/15, 10 January 2019, ECLI:CE:ECHR: 2019:0110JUD001892515

80/14

ECHR X. v. Germany, no. 7770/77, 2 May 1978, ECLI:CE:ECHR:1978: 0502DEC000777077

Introduction 42–50 et seq./12

Knöfel

681

Index Editor: Patrick Zobel

abduction of the child – cooperation of the central authorities Introduction 76–84 note 6; Art. 23 note 1, 3 – enforceability of return orders Art. 28 note 1, 6; Art. 42 note 10, 18 – jurisdiction of the courts of the new habitual residence Art. 9 note 22, 47 – jurisdiction of the courts at the former habitual residence Art. 9 note 3, 5, 21 – relocation disputes Art. 8 note 1, 52 access rights Art. 2 note 31; Art. 8 note 1, 38; Introduction 22–29 note 1; Art. 28 note 4; Introduction 30–37 note 5; Introduction 30–37 note 25; Introduction 30–37 note 53; Art. 39 note 2; Art. 41 note 2; Art. 41 note 7; Art. 42 note 1; Art. 43 note 6; Art. 43 note 16; Art. 45 note 3; Art. 46 note 6; Art. 47 note 10; Art. 47 note 23; Art. 50 note 31, 32; Art. 74 note 15; Art. 81 note 1; Art. 81 note 4; Art. 82 note 6; Art. 97 note 31; Art. 100 note 15 – definition Art. 2 note 33–36 – exercise arrangements Art. 54 note 1–11; Art. 74 note 16 – continuing jurisdiction Art. 8 note 1, 44 – legal aid Art. 74 note 16 – recognition and enforcement of decisions, direct Introduction 30–37 note 14–41; Art. 41 note 4–8; Introduction 42–50 note 1–16 – irreconcilable decision Art. 50 note 29–33 – standard form certificate (see standard form certificate) access decision Art. 42 note 5, 9; Art. 43 note 15; Art. 43 note 17; Art. 45 note 2–14 – standard form certificate (see standard form certificate) acquiescence to the removal of the child Art. 9 note 31, 34 administrative proceedings Art. 1 note 7 agreement Introduction 64–68 note 1–7 – definition Art. 2 note 21–22; Art. 38 note 22 – enforcement Art. 64 note 10; Art. 65 note 1–10 – agreements approved by court Art. 64 note 6 – agreements registered by authority Art. 64 note 7 – on legal separation and divorce Art. 65 note 4–7

– on parental responsibility issues Art. 65 note 8–9 – (see authentic instruments) alternative dispute resolution Art. 79 note 14–16 Annexes – amendments of Art. 92 note 1–12 – procedure Art. 93 note 6–9 – standard form certificate (see standard form certificate) anti-suit injunctions Art. 20 note 117–118 appeal – against decision on application for refusal of enforcement Art. 61 note 1–9 – against decision on jurisdiction Art. 20 note 67, 72, 76–79 – further Art. 62 note 1–9 – in Ireland, Cyprus and UK Art. 72 note 1–14 appearance, lack of – respondent Art. 19 note 22, 25 Austria – agreements concerning parental responsibility Art. 1 note 7 – bilateral Convention with UK Art. 94 note 27 – legal separation Art. 1 note 59 authentic instruments Introduction 64–68 note 1–7 – agreements (see agreement) – certificate (see standard form certificate) – definition of Art. 2 note 18–19; Art. 38 note 26 – grounds for refusal (see grounds for refusal) – recognition and enforcement Art. 43 note 18; Art. 65 note 1–10 – cross-border-circulation Art. 65 note 10 – legal basis Art. 65 note 4 – on legal separation and divorce Art. 65 note 4–7 – on parental responsibility issues Art. 65 note 8–9 automatic recognition, principle of Introduction note 8; Introduction 30–37 note 14–41; Art. 41 note 4–8; Introduction 42–50 note 10; Art. 43 note 6–13; Art. 65 note 4

Belgium – bilateral Convention with UK Art. 94 note 27

683

Index

Borrás Report Art. 1 note 8, 38, 45, 63, 66, 70, 75; Art. 2 note 11; Art. 7 note 22; Art. 20 note 39, 101; Introduction 30–37 note 29; Art. 38 note 21, 60 Brexit Introduction note 67, 94–97; Art. 2 note 40; Introduction 17–20 note 25; Art. 63 note 19; Art. 94 note 26–29; Art. 102 note 3 – reactivation of conventions Art. 94 note 26–31 – (see United Kingdom) Brussels I note Ibis Regulation Introduction note 5, 27, 49–51, 95, 100, 109, 113–115, 125, 145, 147, 152, 171; Art. 1 note 51; Art. 3 note 9; Art. 8 note 46; Art. 10 note 8; Art. 16 note 1, 23, 32; Introduction 17–20 note 1, 7; Art. 17 note 1–17, 22, 26, 35; Art. 18 note 1–2, 13; Art. 19 note 1, 12–19, 22, 37; Art. 20 note 7, 13, 21, 26, 36, 43, 62; Art. 34 note 6; Art. 38 note 40, 44; Art. 39 note 9; Art. 41 note 6; Art. 53 note 3; Art. 56 note 1–3; Art. 69 note 13; Art. 70 note 4; Art. 71 note 7; Art. 72 note 5; Art. 73 note 2; Art. 74 note 2; Art. 75 note 1; Art. 93 note 2; Introduction 94–99 note 18; Art. 94 note 5, 21; Art. 101 note 10; Art. 103 note 2; Art. 104 note 1, 9 Brussels II Convention Introduction note 9, 27, 33, 114; Art. 1 note 4; Art. 3 note 5, 26; Art. 4 note 2; Art. 5 note 4–5; Art. 6 note 5; Art. 15 note 3, 12; Art. 19 note 12, 17; Introduction 64–68 note 6 ; Introduction 76–84 note 6 ; Art. 102 note 2–3 Brussels II Regulation Introduction note 9–10, 26, 27, 144–149, 160, 175; Art. 1 note 3–4, 26, 38, 42, 45, 51, 70–76; Art. 2 note 1, 35; Art. 3 note 5; Art. 4 note 2; Art. 5 note 4; Art. 6 note 5; Art. 10 note 29; Art. 15 note 3; Art. 16 note 1; Art. 17 note 1, 3, 8; Art. 18 note 1; Art. 20 note 45–50; Introduction 22–29 note 3; Art. 29 note 2; Introduction 30–37 note 43–55; Art. 32 note 2; Art. 33 note 2; Introduction 42–50 note 10; Art. 42 note 2, 6; Art. 55 note 4; Art. 63 note 3; Art. 73 note 14; Art. 76 note 7; Art. 94 note 11, 16; Art. 98 note 1; Art. 101 note 9; Art. 102 note 1; Art. 103 note 2; Art. 104 note 2, 4 – repeal by the Brussels IIbis Regulation Introduction note 28–30 Brussels IIbis Regulation Introduction note 28–30, 144–182; Art. 1 note 4; Art. 2 note 1, 8, 18; Art. 3 note 5; Art. 4 note 2; Art. 5 note 4; Art. 6 note 4–9, 17; Art. 6 note 21; Art. 7 note 36, 52, 58; Art. 8 note 3, 30; Art. 10 note 4–7, 21, 26–32, 44–45; 684

Art. 11 note 3–4, 17; Art. 12 note 5, 14, 19, 27, 45–54, 74; Art. 13 note 9; Art. 14 note 3–5; Art. 15 note 3–9, 13–22; Art. 16 note 1, 17, 26; Introduction 17–20 note 2, 11, 23; Art. 17 note 1, 8–9; Art. 18 note 1–3, 21–27; Art. 19 note 1, 4, 8, 13, 35; Art. 20 note 1, 5, 10, 23, 30, 48, 50, 56, 60, 97, 109, 117, 123; Art. 21 note 3, 9, 25; Introduction 22–29 note 3, 17; Introduction 30–37 note 5, 22, 26, 35, 40–57; Art. 30 note 6–8; Art. 31 note 3, 6; Art. 32 note 2, 5, 12; Art. 33 note 2; Art. 34 note 1; Art. 35 note 3; Art. 36 note 2; Art. 38 note 2, 5, 13–21, 36, 50; Art. 39 note 2, 10; Art. 40 note 8; Art. 41 note 1–6, 14, 19; Introduction 42–50 note 1, 6, 10, 14; Art. 42 note 2, 6, 10; Art. 43 note 3, 9–13, 34; Art. 44 note 3; Art. 45 note 6, 12; Art. 46 note 3, 20; Art. 47 note 5, 8–16, 21–35, 40, 47; Art. 48 note 2, 6, 10, 13; Art. 49 note 3; Art. 50 note 2, 12, 30; Art. 51 note 4; Art. 53 note 2, 10; Art. 54 note 2; Art. 55 note 2; Art. 61 note 2, 5, 9; Art. 63 note 2, 19; Introduction 64–68 note 1, 3, 6; Art. 64 note 4; Art. 65 note 1, 7; Art. 68 note 1–2; Art. 73 note 20; Introduction 76–84 note 6–10; Art. 76 note 1–7; Art. 77 note 1–7; Art. 78 note 3, 5; Art. 79 note 1–14; Art. 80 note 2, 7, 8–13; Art. 82 note 2, 5, 8–9, 17–19; Art. 83 note 1; Art. 89 note 1; Art. 92 note 2–3, 11; Art. 93 note 1, 3–4; Introduction 94–99 note 4–9, 12, 19; Art. 94 note 1–2, 16; Art. 95 note 1, 5–6; Art. 96 note 4–9; Art. 97 note 3, 7, 11, 22–25; Art. 98 note 3–4; Art. 99 note 3; Art. 100 note 1, 6, 11, 13–18; Art. 101 note 9, 14; Art. 102 note 2; Art. 103 note 3, 9; Art. 104 note 1–11; Art. 105 note 2, 7 – repeal by the Brussels IIter Regulation Introduction note 31, 46; Art. 104 note 1, 5 Brussels IIter Regulation – competence of the EU Introduction note 47 – external Introduction note 50–53 – direct applicability Introduction note 47 – entry into force Art. 105 note 2–7 – interlocal conflicts Art. 102 note 5–9 – interpretation – comparism to Brussels I note Ibis Regulation Introduction note 114 – competence of the ECJ Introduction note 120 – independence from national concepts Introduction note 110 – Practice Guide Introduction note 118–119 – systematic Introduction note 112, 116 – jurisdictional rules

Index

–

– –

–

–

– element of internationality required Introduction note 150 – general concepts Introduction note 154–162 legislative history Introduction note 26–46; Art. 1 note 4 – travaux préparatoires Introduction note 117; Art. 20 note 49; Introduction 76–84 note 7 precedence over all non-conforming national law Introduction note 48 principles – automatic recognition (see automatic recognition) – legal certainty Introduction note 5 – mutual trust Introduction note 3 purpose Introduction note 2 – avoidance of concurrent proceedings Introduction note 7; Art. 20 note 2–3 – consistency with the Brussels II/IIbis Regulation Introduction note 9 – expeditious proceedings Art. 24 note 1–13; Art. 60 note 1 – jurisdictional unification Introduction note 4 – protection of the best interests of the child Introduction note 6 relation to other bi- or multilateral instruments Introduction 94–99 note 21–23 – conclusion of new international treaties Introduction note 51 – Nordic option Art. 94 note 2 – precedence over multilateral conventions Art. 95 note 1; Art. 98 note 1–4 – European Convention of 20 May 1980 on recognition of custody decisions Art. 94 note 12; Art. 98 note 1–4 – Hague Convention of 1 June 1970 on the recognition of divorces Art. 95 note 11; Art. 98 note 1–4 – Hague Convention of 5 October 1961 on the protection of minors Art. 95 note 7–8; Art. 98 note 1–4 – Hague Convention of 19 October 1996 on the Protection of Children Art. 97 note 1–32; Art. 98 note 1–4 – Hague Convention of 25 October 1980 on child abduction Art. 96 note 1–11; Art. 98 note 1–4 – Luxembourg Convention of 8 September 1967 on recognition of decisions concerning the validity of marriages Art. 94 note 9–10; Art. 98 note 1–4 – principle of supersession Art. 94 note 8, 14

– repeal of the Brussels IIbis Regulation Art. 104 note 1–5 – review Art. 101 note 1–18 – scope of application (see scope of the Brussels IIter Regulation) – state liability for incorrect application Introduction note 180–182 Brussels III (see Rome III Regulation)

central authorities

Introduction 76–84 note 1–13 – collection of data by the Commission Art. 103 note 6 – changes as to the material data Art. 103 note 9, 11 – means of communication Art. 103 note 8 – cooperation in parental responsibility matters Art. 23 note 1–3; Art. 77 note 6 – assistence to courts Art. 79 note 13; Art. 82 note 22 – assistence to holders of parental responsibility Art. 79 note 10 – communication between courts Art. 79 note 11–12 – data cooperation Art. 79 note 9; Art. 80 note 1–15; Art. 88 note 1–3 – discovering the whereabouts of a child Art. 79 note 5–8 – information, collection and transmission Art. 87 note 1–5 – implementation of decisions Art. 81 note 1–8 – costs of activities Art. 83 note 1–3 – designation of Art. 76 note 1, 7 – duty to forward communication Art. 76 note 8 – functions Art. 77 note 1–8; Art. 78 note 1–8 – further law reform Introduction 76–84 note 12–13 – information about Art. 103 note 12 – meetings Art. 84 note 1 – placement of child in another Member State Art. 82 note 1–7 – assistence to courts Art. 82 note 22 – further law reform Art. 82 note 23 – procedure Art. 82 note 8–21 – non-disclosure of information Art. 89 note 1–6 – request for assistance Art. 79 note 1–16 Charter of Fundamental Rights of the European Union Introduction note 179; Art. 1 note 27; Art. 6 note 17; Art. 26 note 6; Art. 27 note 5; Art. 38 note 45; Art. 39 note 10; Introduction 42–50 note 3; Art. 47 note 19 685

Index

challenge (see appeal) child – abduction Art. 9 note 9–21 – definition Art. 1 note 76–80; Art. 2 note 25 – connection to a state Art. 10 note 17–19 – fundamental rights Introduction note 179; Introduction 22–29 note 2; Art. 26 note 3–6; Art. 27 note 2, 5 – habitual residence (see habitual residence) – hearing of the child (see hearing of the child) – hearing of the family Art. 1 note 73, 75 – placement in another member state Art. 82 note 1–7 – procedure Art. 82 note 8–21 – unborn Art. 1 note 80 child abduction Art. 9 note 9, 21 – fast enforcement of return orders Art. 28 note 1–6 – cooperation of the central authorities Art. 23 note 1–3 – jurisdiction of the courts of the new habitual residence Art. 9 note 22–47 – jurisdiction of the courts at the former habitual residence Art. 9 note 3, 9–21 – procedure of the return Art. 27 note 1–26 – relocation disputes Art. 8 note 1–52 civil matters – definition Art. 1 note 15 – matrimonial matters Art. 1 note 16–17 – matters of parental responsibility Art. 1 note 18–19 civil-status records Art. 15 note 27; Art. 30 note 3–4; Art. 31 note 3 Commission Practice Guide (see Practice Guide) competence – of the EU for the Brussels IIter Regulation Introduction note 50–53 Concordats (see Holy See, treaties with the) consent divorce Art. 1 note 6, 8, 11, 53 consequences – of judgements Art. 1 note 49 – personal Art. 1 note 50 – property consequences Art. 1 note 51 constitutive judgements Art. 1 note 44; Art. 2 note 13 costs Art. 73 note 4, 23 – exemption from costs Art. 74 note 18 – legal aid (see legal aid) – security for Art. 75 note 1, 13 counterclaim Art. 4 note 1, 4 – amendment of Art. 17 note 34 – relation to lis pendens Art. 4 note 1 – significance in practice Art. 4 note 8

686

court – definition Art. 2 note 16–17 – communication between Art. 79 note 11–12; Art. 86 note 1–9 – non-disclosure of information Art. 89 note 1–6 court settlements (see authentic instruments) Cyprus Introduction note 66, 92; Art. 1 note 54, 59; Art. 10 note 52; Art. 19 note 33; Introduction 30–37 note 51; Art. 30 note 4; Art. 33 note 5; Art. 63 note 19; Art. 72 note 1–18; Art. 73 note 12, 16–17; Art. 94 note 31; Art. 95 note 11 Czech Republic – legal separation Art. 1 note 59

decision – definition Art. 2 note 5 – enforceable Art. 34 note 1–10 – irreconcilable Art. 38 note 58–63; Art. 44 note 7–11; Art. 50 note 29–33 – ordinary decision Art. 28 note 2; Introduction 30–37 note 14; Art. 30 note 1–4 – privileged decision Introduction 30–37 note 8; Introduction 42–50 note 2–9; Art. 42 note 3–18 – relation to general procedure Art. 43 note 19–21 – relating to parental responsibility: – access order (see access rights) – return order (see return order) – service Art. 55 note 1–7 – term Art. 2 note 6–12 default decision – acknowledgment by the defaulting party Art. 44 note 13; Art. 47 note 34 – certificate Art. 47 note 3–37 – proper service of the defaulting party Art. 47 note 34 Denmark Art. 1 note 37, 59; Art. 2 note 8; Art. 6 note 18; Art. 12 note 26; Art. 15 note 10; Art. 17 note 28; Art. 19 note 8, 26, 33; Art. 82 note 4; Introduction 94–99 note 2, 7; Art. 94 note 2, 10; Art. 95 note 11; Art. 100 note 8; Art. 104 note 1 – administrative divorce proceedings Art. 1 note 6 – Nordic exception Introduction 94–99 note 13; Art. 94 note 10–11 dismissal, mandatory Art. 20 note 68–72 divorce – consent divorce Art. 1 note 6, 8, 11, 53; Introduction 30–37 note 39 – exclusion of fault Art. 1 note 55

Index

– private divorces Art. 38 note 22, 33 – religious terminations of marriage Art. 38 note 11–15 – unilateral Art. 38 note 11–12 documents – absence of Art. 32 note 5–10; Art. 35 note 3–5; Art. 38 note 5–7 – possible reactions of the court Art. 32 note 9–10 – acceptance of equivalent documents Art. 32 note 9 – dispense with the production of documents Art. 32 note 10 – non-recognition of decision Art. 32 note 3 – setting of a time limit Art. 32 note 3, 5; Art. 35 note 7 – reason for the non-production Art. 32 note 7 – amendments of applications and counterclaims Art. 17 note 34 – authenticated copy of the decision Art. 32 note 5; Art. 43 note 4, 27; Art. 46 note 15 – authentic instruments (see authentic instruments) – certificates (see standard form certificate) – effects of Art. 43 note 27–29; Art. 46 note 15–17 – instituting the proceedings (see seisin of court, document instituting the proceedings) – required for enforcement Art. 35 note 1–7; Art. 46 note 6–17 – required for recognition Art. 31 note 4–10; Art. 43 note 16–29 – time limit Art. 31 note 11 – translation of (see translation of documents) domicile Art. 2 note 40–41 dual nationality Art. 3 note 39

enforcement – access rights (see access rights, recognition and enforcement of decisions) – authentic instruments or agreements (see authentic instruments) – authorities competent Art. 52 note 1–2; Art. 58 note 1–8 – direct, principle of Introduction 42–50 note 1–16 – documents to be produced Art. 35 note 1–7; Art. 46 note 6–17 – enforceable decision Art. 45 note 1–16 – fast track (see fast track enforcement procedure) – governed by the laws of the enforcement state Art. 51 note 6–9

– partial Art. 53 note 1 – requirements Art. 53 note 4–9 – procedure Art. 53 note 10–13 – provisional enforceability, declaration of Art. 45 note 12–16 – refusal of – application Art. 59 note 1 – grounds for (see grounds for refusal) – return order (see return order) – suspension and refusal Art. 56 note 1–9 England (see Brexit, see United Kingdom) – uncontested divorces Art. 1 note 8 Estonia – administrative divorce proceedings Art. 1 note 6 – legal separation Art. 1 note 59 European Convention on Human Rights Introduction 42–50 note 12; Introduction 94–99 note 22 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children Art. 54 note 1 European international family and succession law Introduction note 18–19 European Judicial Network Art. 77 note 7–8 European private international law Introduction note 12 execution of decisions (see enforcement) expenses (see costs)

family law – Europeanisation Introduction note 20 fast track enforcement procedure Introduction note 143; Art. 29 note 2; Introduction 42–50 note 1–6; Art. 45 note 4; Art. 47 note 7–8; Art. 50 note 2 Finland – agreements regarding custody, residence and visitation rights Art. 1 note 7 – legal separation Art. 1 note 59 – Nordic Convention of 6 February 1931 Introduction 94–99 note 3–4, 7; Art. 94 note 4, 9–23 – Nordic exception Introduction 94–99 note 13; Art. 94 note 10–11 former habitual residence of the child Art. 8 note 3, 23; Art. 9 note 3, 9–21 – relocation disputes Art. 8 note 1–52 forum conveniens Art. 86 note 6 forum necessitatis Art. 3 note 46–49; Art. 6 note 3 forum non conveniens – connecting factors Art. 12 note 27 – former habitual residence Art. 12 note 30 687

Index

– location of the child’s property Art. 12 note 33 – present habitual residence Art. 12 note 29 – residency of a holder of parental responsibility Art. 12 note 32 – state of nationality Art. 12 note 31 – designation of a competent court Art. 12 note 60 – general idea Introduction note 5, 160–165; Art. 12 note 6; Art. 18 note 16; Art. 20 note 4; Art. 97 note 28 – opportunities for the court of the first state Art. 12 note 53–64 – preconditions Art. 12 note 15–24 – reaction of the designated court Art. 12 note 65–75 – transfer procedure Art. 12 note 55–63; 68–72 forum shopping Introduction note 12, 35, 158, 170–171; Art. 1 note 45; Art. 3 note 25, 31, 44–45; Art. 7 note 52; Art. 8 note 17; Art. 10 note 12, 57; Introduction 17–20 note 10; Art. 17 note 2; Art. 18 note 4–5; Art. 20 note 7 foster family Introduction note 99; Art. 1 note 19, 74, 82–83, 87; Art. 2 note 30; Art. 12 note 39; Art. 20 note 4, 7; Introduction 30–37 note 22; Introduction 76–84 note 2; Art. 79 note 11, 15; Art. 80 note 15; Art. 82 note 5; Art. 94 note 16, 22 France Introduction note 13, 15, 73, 93; Art. 1 note 25, 34, 36, 54; Art. 6 note 20; Art. 17 note 66; Art. 19 note 33; Art. 63 note 10; Art. 65 note 4; Art. 76 note 6–7; Art. 80 note 10; Art. 94 note 7; Art. 95 note 7; Art. 97 note 5 – legal separation Art. 1 note 59

General Data Protection Regulation (EU) 2016 – notification of data subject Art. 88 note 1–3 Germany Introduction note 13, 15, 75, 148, 177; Art. 1 note 25, 36–40, 44, 51; Art. 2 note 19; Art. 3 note 31; Art. 8 note 30; Art. 10 note 21; Art. 16 note 28; Art. 17 note 1, 3, 17–21, 39, 43, 62; Art. 18 note 26, 30; Art. 19 note 33, 36; Art. 20 note 44, 73; Art. 63 note 9; Introduction 64–68 note 4; Art. 71 note 9; Introduction 76–84 note 1; Art. 76 note 3, 6; Art. 77 note 2; Art. 79 note 8, 15; Art. 80 note 1, 3, 5, 10; Art. 82 note 2, 5, 11; Art. 83 note 3; Art. 88 note 2; Art. 91 note 5; Introduction 94–99 note 15; Art. 94 note 7, 27, 29; Art. 95 note 7; Art. 102 note 3; Art. 103 note 5 688

– bilateral Convention with UK Art. 94 note 27 – custody Art. 1 note 7 – legal separation Art. 1 note 59 Greece – judgments by muftis Art. 1 note 16 – legal separation Art. 1 note 59 grounds for refusal – authentic instrument or agreement Art. 68 note 1–4 – harm to the child Art. 41 note 18–21; Art. 48 note 47 – matrimonial matters Art. 38 note 37–63 – differences in lex fori Art. 70 note 1–11 – due process and fair trial, violation of Art. 38 note 49–57 – excluded decisions Art. 38 note 11–20 – irreconcilable decisions Art. 38 note 58–63 – private divorces Art. 38 note 22–33 – public policy, violation of Art. 38 note 38–48 – service, incorrect or missing Art. 38 note 53–57 – parental responsibility Art. 39 note 8–24 – due process and fair trial, violation of Art. 39 note 12–14 – enforcement, refusal of Art. 41 note 1–8 – irreconcilable decisions Art. 39 note 15–16; Art. 50 note 29–33 – lack of hearing of the child Art. 39 note 18–24 – lack of hearing of a parent Art. 39 note 13 – procedure for the placement of the child, violation of Art. 39 note 17; Art. 82 note 18–19 – public policy, violation of Art. 39 note 9, 11 – rights of access or return order, irreconcilable decision Art. 50 note 29–33 – under national law Art. 41 note 16–17; Art. 57 note 1–4 Groupe Européen de Droit International Privé Introduction note 38

habitual residence

Art. 2 note 2; Art. 3 note 32–38; Art. 19 note 3–4, 13 – definition Art. 2 note 2 – jurisdiction (see jurisdiction, habitual residence) – of the child Art. 7 note 19–48; Art. 97 note 2 – establishing after court has been seised Art. 7 note 63–64 – interruption Art. 7 note 51

Index

– new habitual residence in other member state Art. 8 note 1, 24; Art. 9 note 22–26 – no determination Art. 7 note 54 – relocation from third countries Art. 7 note 68 – relocation to third countries Art. 7 note 65–67 – time determining the existence of habitual residence Art. 7 note 55–62 Hague Convention of 1980 on the civil aspects of international child abduction Art. 1 note 3; Art. 9 note 3, 12–15, 18–19; Art. 9 note 27–31, 37–38, 50, 52; Art. 22 note 1–12; Art. 23 note 1–3; Art. 24 note 1–13 Hague Convention of 1996 on the Protection of Children Introduction note 52, 160; Art. 1 note 67–81; Art. 2 note 32, 34; Art. 15 note 6, 11; Art. 50 note 28; Introduction 76–84 note 4–7; Art. 76 note 1, 7; Art. 82 note 3; Introduction 94–99 note 3, 6, 9, 15; Art. 94 note 4, 9, 25, 29; Art. 95 note 3, 7; Art. 97 note 1–31 Hague Service Convention Art. 17 note 28; Art. 19 note 6–8; Art. 19 note 15, 26, 29–35, 38; Introduction 76–84 note 4–5; Art. 78 note 2; Art. 83 note 1 harmonisation of substantive family law (see unification of substantive family law) hearing of the child Art. 21 note 1–28; Art. 26 note 1–6; Art. 47 note 29–32, Art. 68 note 4; Art. 96 note 5 holder of custody rights – acquiescence to the removal of the child Art. 9 note 31–34 Holy See, treaties with the Introduction note 79, 83, 86, 90; Art. 1 note 17; Introduction 30–37 note 26; Art. 38 note 14; Introduction 94–99 note 6, 11; Art. 99 note 1–4 Human Rights Convention (see European Convention on Human Rights) Hungary – disputes concerning parental responsibility Art. 1 note 7 – legal separation Art. 1 note 59

information – about central authorities Art. 103 note 12 – relating to courts Art. 103 note 3 injunctive relief Art. 17 note 21; Art. 20 note 117–118, 120–121 interim relief (see provisional measures) Ireland Introduction note 78, 148, 162; Art. 1 note 25; Art. 2 note 8, 40; Art. 3 note 26, 30–31, 43; Art. 6 note 3, 14; Art. 10 note 52; Art. 19 note 33; Introduction 30–37 note 51;

Art. 30 note 4; Art. 33 note 5; Art. 62 note 4; Art. 63 note 19; Art. 64 note 11; Art. 72 note 1–18; Art. 94 note 7, 27; Art. 102 note 3 – legal separation Art. 1 note 59 irreconcilable decisions (see decision, irreconcilable) Italy – bilateral Convention with UK Art. 94 note 27 – legal separation Art. 1 note 59 – treaties with the Holy See Introduction note 79; Art. 99 note 1

Jenard Report

Introduction note 117; Art. 2 note 18 joint application Art. 3 note 23 jurisdiction – abduction (see abduction of the child) – burden of proof Introduction note 165 – conflicts of Art. 12 note 8; Art. 18 note 7, 34; Art. 20 note 64, 69, 104 – continuing in relation to access rights Art. 8 note 1, 44 – conversion of legal separation into divorce Art. 5 note 2 – counterclaim, over Art. 4 note 1; Art. 4 note 4 – relation to lis pendens provision Art. 4 note 1 – court of origin, of Introduction note 43; Art. 18 note 22; Art. 21 note 25; Introduction 30–37 note 11, 16; Art. 36 note 5; Art. 38 note 31; Art. 39 note 21; Art. 42 note 7; Art. 43 note 3, 7; Art. 65 note 7; Art. 69 note 1; Art. 70 note 4–6; Art. 71 note 11, 19; Art. 72 note 8; Art. 73 note 4, 11; Art. 94 note 20 – discontinuatio fori Introduction note 164 – dual nationality of the spouses Art. 3 note 39 – element of internationality Introduction note 150–152 – examination by a court seised Art. 18 note 1, 22–24 – forum non conveniens (see forum non conveniens) – general jurisdiction of parental responsibility Art. 7 note 1–70 – general rule Introduction note 58 – habitual residence, based on Introduction note 116; Art. 3 note 32–37 – of the applicant Art. 3 note 24–29 689

Index

– – –

– – – – – –

–

– of the child Art. 7 note 19, 48; (see habitual residence, child) – after an abduction Art. 9 note 9–26 – joint application Art. 3 note 23 – of the respondent Art. 3 note 22 – of the spouses Art. 3 note 20–21; Art. 8 note 10–11 lis pendens (see lis pendens) nationality, based on the Art. 3 note 30–31 parental matters, in Introduction note 4; Art. 7 note 1–70 – acceptance Art. 10 note 26, 35 – agreement Art. 10 note 1, 24, 25 – at the habitual residence of the child Art. 7 note 19, 48 – connection of the child to a state Art. 10 note 17, 19 – court of the divorce, legal separation or marriage annulment Art. 10 note 6 – incidental questions Art. 16 note 1, 39; Art. 69 note 14, 18 party autonomy Introduction note 166–169 perpetuatio jurisdictionis (see perpetuatio fori) presence of the child, based on Art. 8 note 24; Art. 11 note 22–24 relevant point of time Introduction note 163–164 residual jurisdiction Art. 14 note 1–15 transfer of jurisdiction Art. 12 note 1–75 – exceptional circumstances Art. 12 note 43 – request by court not having jurisdiction Art. 13 note 1–9 visiting rights Art. 9 note 14

Latvia Introduction note 80 – administrative divorce Art. 1 note 6 – legal separation Art. 1 note 59 legal aid Art. 17 note 21, 29, 43, 46; Introduction 30–37 note 11; Art. 38 note 1; Art. 40 note 5; Art. 47 note 10; Art. 74 note 1–18; Art. 79 note 10 – access orders Art. 74 note 16 – security, bond or deposit Art. 75 note 1–13 legal certainty, principle of Introduction note 5 legal separation – conversion into divorce Art. 5 note 2 legalisation Art. 90 note 1–6 limping marriages Introduction note 22 lis pendens Introduction note 147, 170–171; Art. 3 note 12; Art. 4 note 1; Art. 7 note 62; Art. 10 note 12, 57–58; Art. 11 note 18; Introduction 17–20 note 1–27; Art. 17 note 6, 20, 32, 35–38, 59, 64; Art. 20 note 1–129 690

– – – – –

autonomous notion of Art. 17 note 35–38 choice of court Art. 20 note 109–110 counterclaim, relation to Art. 4 note 1 failure of service Art. 17 note 32–33 “false” Art. 20 note 35–37; Art. 20 note 47, 127 – mandatory attempts for reconciliation Art. 17 note 64–70 – proceedings pending Art. 20 note 15 – identical matter of parental responsibility Art. 20 note 56–63 – identity of cause of action Art. 20 note 30–34, 60–62 – identity of parties Art. 20 note 26–29 – in a third state Art. 20 note 18–22 – relating to divorce, legal separation or marriage annulment Art. 20 note 23–25 – stay of proceedings (see stay of proceedings) Lithuania Introduction note 81, 145; Art. 1 note 54; Art. 19 note 33; Art. 76 note 7; Art. 94 note 7; Art. 95 note 7 – legal separation Art. 1 note 59 Luxemburg Introduction note 13, 15, 25; Art. 19 note 33 – legal separation Art. 1 note 59

Maintenance Regulation

Introduction note 14, 19 Malta Introduction note 13, 15; Art. 1 note 17, 25, 52; Introduction 30–39 note 26; Art. 38 note 14; Art. 94 note 7 – legal separation Art. 1 note 59 – opposition to Rome III Introduction note 13 – treaties with the Holy See Introduction note 83; Art. 99 note 1 marriage annulment Art. 1 note 61–66 – posthumous Art. 38 note 21 – third party nullity Art. 38 note 21 matrimonia claudicantia (see limping marriages) matrimonial proceedings – definition Art. 1 note 20; Art. 1 note 71 – dissolution through declaration of death or absence Art. 1 note 21 – divorce Art. 1 note 52–57 – factual relationship Art. 1 note 32–33 – formless marriage Art. 1 note 23 – legal separation Art. 1 note 58–60 – marriage annulment Art. 1 note 61–66 – polygamous marriage Art. 1 note 31 – registered partnership Art. 1 note 34–43 – same-sex marriages Art. 1 note 24–30 matrimonial property regimes, Regulation on Introduction note 15

Index

mediation Introduction note 39, 44; Introduction 17–20 note 16; Art. 17 note 66–70; Art. 25 note 1–3 Member State – of enforcement Art. 2 note 24 – of origin Art. 2 note 23 mutual trust, principle of Introduction note 3; Art. 17 note 2 The Netherlands Introduction note 15, 84; Art. 1 note 6, 26, 36–37; Art. 17 note 21; Art. 94 note 7, 28, 31; Art. 95 note 7, 10–11 – divorce judgments Art. 2 note 11 – legal separation Art. 1 note 59 – “lightning” divorce Art. 1 note 13 – same-sex marriage Art. 1 note 25 non-review as to substance Introduction 30–37 note 11; Art. 71 note 1, 19 Nordic exception Art. 94 note 10–23

parental responsibility issues

Introduction note 6, 19 – best interest of the child Art. 39 note 10–11 – concept Art. 1 note 67–70 – content Art. 1 note 81 – cooperation between central authorities Art. 23 note 1–3 – definition Art. 1 note 2; Art. 2 note 26–28; Art. 7 note 13 – excluded matters Art. 1 note 87 – general jurisdiction Art. 7 note 3–18 – holder of parental responsibility Art. 2 note 29–31 – identical matter Art. 20 note 56–63 – incidental questions Art. 16 note 1–39 – independence of matrimonial proceedings Art. 1 note 71–72 – youth protection measures Art. 1 note 18 permanent residence (see habitual residence) perpetuatio fori Introduction note 163; Art. 3 note 18; Art. 4 note 6; Art. 6 note 16; Art. 7 note 57–62; Art. 8 note 8, 29, 36, 43; Art. 9 note 17, 23; Art. 10 note 59; Art. 11 note 23, 26; Art. 12 note 1, 29; Art. 100 note 7 Poland Introduction note 15, 85; Art. 94 note 7; Art. 95 note 7, 11 – legal separation Art. 1 note 59 Portugal Introduction note 13, 15, 86 – administrative divorce proceedings Art. 1 note 6 – legal separation Art. 1 note 59 – Treaties with the Holy See Introduction note 83; Art. 99 note 1

Practice Guide Introduction note 118–119; Art. 10 note 32; Art. 20 note 122; Art. 27 note 4; Art. Introduction 76–84 note 11 previous habitual residence (see former habitual residence) prorogation agreement – for parental responsibility matters Art. 10 note 20–54 – formal requirements Art. 10 note 45–47 – duration of validity Art. 10 note 48–54 protective measures (see provisional measures) provisional measures Art. 15 note 1 – application for Art. 15 note 2, 7–14 – availability of Art. 15 note 8, 15–17, 22, 27–28 – creation of jurisdiction Art. 15 note 15–17 – duty of information Art. 15 note 19 – enforcement Art. 41 note 11–13 – matters beyond the material scope of the Regulation Art. 15 note 12 – object of protection Art. 15 note 26 – possibility of review Art. 69 note 11–13 – potential measures Art. 15 note 27–28 – rights of access Art. 54 note 10–11 – relation to Regulation (EU) No 606 note 2013 on mutual recognition of protection measures in civil matters Art. 15 note 13 – temporal limitations Art. 15 note 32–33 – territoriality, condition of Art. 15 note 29–31 – urgency requirement Art. 15 note 24–25

race to the courthouse

Introduction note 171; Introduction 17–20 note 15; Art. 17 note 3, 39, 67 recognition of decisions – access decisions (see access rights, recognition and enforcement of decisions) – authentic instruments or agreements (see authentic instruments) – automatic (see automatic recognition) – basic policy Introduction note 172–173; Art. 30 note 1–4; Art. 39 note 1 – decision, no grounds for refusal of recognition Art. 30 note 6 – application Art. 40 note 8–10 – procedure Art. 40 note 2–7 – declaratory proceedings Art. 30 note 5–8 – documents to be produced Art. 31 note 4–10; Art. 43 note 16–29 – excluded decisions Introduction note 162; Art. 22 note 2–6 – Finnish judgments, special need for examination Art. 94 note 9–23

691

Index

– – – – –

generalities Introduction note 172–176 grounds for refusal (see grounds for refusal) incidental Art. 30 note 9–10 legal aid (see legal aid) non-review as to substance Introduction 30–37 note 11; Art. 71 note 1–19 – ordre public Européen Art. 38 note 38–48; Art. 39 note 9–11 – parental responsibility decisions – scope of application Art. 39 note 5–6 – partial Art. 30 note 11 – placement decisions Art. 39 note 17; Art. 82 note 18–19 – procedure, no special Art. 30 note 1–4 – provisional measures (see provisional measures) – relation to domestic rules Introduction 30–37 note 42 – return decisions (see return order, recognition and enforcement) – stay of proceedings Art. 33 note 1–6; Art. 44 note 1–18 – Swedish judgments, special need for examination Art. 94 note 9–23 reference procedure Introduction note 120–121 – court of last instance Introduction note 126–129 – fast track reference Introduction note 143 – formal requirements Introduction note 138 – history Introduction note 144–149 – no interpretation of national law Introduction note 122 – obligation to refer Introduction note 132–137 – pending procedure Introduction note 123–125 – relevance of the question Introduction note 130–131 refugee children Art. 11 note 28 registered partnership Art. 1 note 34–43 – Regulation on matrimonial property regimes Introduction note 15 relocation disputes Art. 8 note 1–44; Art. 22 note 1–8 res iudicata effect Introduction note 173; Art. 1 note 16; Art. 2 note 11–12; Art. 16 note 19–23; Art. 18 note 28; Art. 20 note 11, 15, 42, 44, 53, 59, 73, 79, 91, 93; Art. 30 note 5; Art. 31 note 9; Art. 35 note 6; Art. 39 note 15; Art. 63 note 1, 13; Art. 100 note 9 residence, habitual (see habitual residence) residual jurisdiction Art. 6 note 1, 22 – future reform of Art. 6 note 21–22

692

Resolution on equal rights for homosexuals and lesbians in the European Community of 8 February 1994 Art. 1 note 35 retention Art. 2 note 37–39; Art. 9 note 20–21 – jurisdiction Art. 9 note 1–62 return order Art. 22 note 1–12; Art. 23 note 1–3; Art. 24 note 1–13 – irreconcilable decision Art. 50 note 29–33 – legal aid Art. 74 note 15 – recognition and enforcement, direct Art. 28 note 1–6; Art. 29 note 16–27; Art. 42 note 10–17 – standard form certificate Art. 47 note 38–39 – refusal of return Art. 29 note 1–27 right to a fair trial Introduction note 49; Art. 6 note 17; Art. 19 note 2, 25; Art. 24 note 2; Art. 38 note 49–57; Art. 39 note 12; Art. 47 note 4, 19 right to be heard Art. 12 note 58; Art. 19 note 1; Art. 26 note 1–6; Art. 27 note 3; Art. 47 note 23–28; (see hearing of the child) rights of access (see access rights) rights of custody Art. 2 note 32 Rome III Regulation Introduction note 12–13, 177; Art. 16 note 9, 32

same-sex marriages

Introduction note 36, 103, 144; Art. 1 note 22–30, 40; Art. 3 note 7, 16, 48; Art. 6 note 12; Introduction 30–37 note 31; Art. 38 note 15–19 – in the Netherlands Art. 1 note 25 scope of the Brussels IIter Regulation, international Introduction note 54–56 – decisions and orders rendered by courts in Member States Introduction note 56 – habitual residence of one of the parties within a Member State Introduction note 55 scope of the Brussels IIter Regulation, material Art. 1 note 1 – civil matters Introduction note 99; Art. 1 note 1, 15–19 – excluded matters Art. 1 note 16, 18, 47, 87–88 – adoption Introduction note 106 – celebration and formation of marriage Introduction note 102 – factual relationships Art. 1 note 32–33 – factual separation Art. 1 note 48 – filiation, questions of Introduction note 106 – formless marriage Art. 1 note 23 – maintenance issues Introduction note 100

Index

– property consequences of a divorce Introduction note 101 – registered partnerships Introduction note 103–104; Art. 1 note 34–43 – religious terminations of marriage Art. 38 note 11–15 – private divorces Art. 38 note 22–33 – same-sex marriages (see same-sex marriage) – matrimonial questions Art. 1 note 1, 16 – divorce Introduction note 98; Art. 1 note 52–57; Art. 2 note 7 – exclusion of fault Introduction note 98; Art. 1 note 55 – legal separation Introduction note 98; Art. 1 note 58–60; Art. 2 note 7 – marriage annulment Introduction note 98; Art. 1 note 61–66; Art. 2 note 7 – parental responsibility issues Introduction note 105; Art. 1 note 2, 18–19; Art. 2 note 15 – polygamous marriage Art. 1 note 31 scope of the Brussels IIter Regulation, personal Introduction note 109 – children habitually resident in a member state Art. 97 note 2 scope of the Brussels IIter Regulation, procedural – administrative divorce proceedings Art. 1 note 5–14 – exclusion of private and religious proceedings Art. 1 note 16–17 – nature of the court Art. 1 note 5 – non-judicial proceedings Art. 1 note 5 scope of the Brussels IIter Regulation, temporal Introduction note 108 – Accession State Art. 105 note 1 – agreements Art. 100 note 12 – authentic instruments Art. 100 note 10–11 – documents Art. 100 note 10–11 – future accessions to the EU Art. 100 note 21 – jurisdiction Art. 100 note 5–9 – lis pendens Art. 100 note 16–20 – principle of non-retroactivity Art. 100 note 1 – recognition and enforcements – extensions Art. 100 note 14–15 – general rule Art. 100 note 13 – transitional provisions Art. 100 note 1–21 scope of the Brussels IIter Regulation, territorial Introduction note 57–60; Art. 2 note 8 – Austria Introduction note 63 – Belgium Introduction note 64 – Bulgaria Introduction note 65 – Croatia Introduction note 66 – Cyprus Introduction note 67; Art. 63 note 19

– Czech Republic Introduction note 68 – Denmark Introduction note 69, 70; Art. 2 note 8 – Protocol on the Position of Denmark to the Treaty of Amsterdam Introduction note 70 – Estonia Introduction note 71 – Finland Introduction note 72; Art. 2 note 10 – France Introduction note 73 – overseas departments Introduction note 74 – general rule Introduction note 61 – Germany Introduction note 75 – Greece Introduction note 76 – habitual residence of the child in a member state Introduction note 59; Art. 97 note 2 – Hungary Introduction note 77 – Ireland Introduction note 78; Art. 2 note 8, 40; Art. 63 note 19 – Italy Introduction note 79 – decisions rendered by a court located in an Member State Introduction note 56 – Latvia Introduction note 80 – Lithuania Introduction note 81 – Luxemburg Introduction note 82 – Member States with two or more legal systems Art. 102 note 1–9 – Malta Introduction note 83 – The Netherlands Introduction note 84 – Poland Introduction note 85 – Portugal Introduction note 86 – Romania Introduction note 87 – Slovakia Introduction note 88 – Slovenia Introduction note 89 – Spain Introduction note 90 – Sweden Introduction note 91; Art. 2 note 10 – United Kingdom Introduction note 92–97; Art. 2 note 40 seisin of court – Community (EU) notion of Art. 17 note 3, 5, 7–11, 35–38 – limited scope of application Art. 17 note 7–9 – concept of retroactivity Art. 17 note 39–42 – court first seised Art. 20 note 51–55, 68–75 – document instituting the proceedings Art. 17 note 12–14; Art. 19 note 19–21 – applications for injunctive relief Art. 17 note 21 – basic degree of comprehensibility Art. 17 note 17 – information about the subject matter Art. 17 note 15 – lodging Art. 17 note 22–25 – service of Art. 17 note 15, 26–33; Art. 19 note 26–28 693

Index

– officially instituted proceedings Art. 17 note 72–73 service – certificate and decision, of Art. 55 note 1–7 – definition of Art. 17 note 26–28 – factual difficulties Art. 17 note 29 – incorrect or missing (see grounds for refusal) – initially deficient service Art. 19 note 38–41 – measures necessary Art. 17 note 43–49 – premature Art. 17 note 33 – proof of Art. 36 note 5 – time limits Art. 17 note 50–59 Service Regulation Art. 17 note 17, 26–28; Art. 17 note 30–32; Art. 19 note 6–8; Art. 19 note 15, 26–31; Art. 38 note 53 Slovakia Introduction note 24; Art. 19 note 33; Art. 76 note 6–7; Art. 94 note 31; Art. 95 note 11 – legal separation Art. 1 note 59 Spain Introduction note 15, 90; Art. 1 note 6, 11, 17, 25–26, 36, 51; Art. 7 note 16; Art. 19 note 33; Introduction 30–37 note 26; Art. 38 note 14, 16; Art. 77 note 2; Introduction 94–99 note 15; Art. 94 note 7; Art. 95 note 7–8; Art. 97 note 4, 19; Art. 102 note 3 – legal separation Art. 1 note 59 – treaties with the Holy See Introduction note 90; Art. 99 note 1 standard form certificate Art. 36 note 1–9; Art. 47 note 1–4 – access decisions Art. 43 note 17; Art. 47 note 3–4, 8, 23 – appeal Art. 36 note 9; Art. 37 note 2 – applicants Art. 36 note 4 – authentic instrument or agreement Art. 66 note 1–6 – competent authority Art. 36 note 2; Art. 47 note 11–13 – default decision (see default decision) – entitlement Art. 47 note 14–15 – effect Art. 36 note 1; Art. 47 note 40–42 – fast track enforcement (see fast track enforcement procedure) – hearing of all persons concerned Art. 47 note 23–28 – hearing of the child Art. 47 note 29–32 – issuance note modifying of the certificate ex officio Art. 36 note 3; Art. 42 note 9; Art. 47 note 14; Art. 48 note 10, 19, 25; Art. 49 note 8, 12 – language Art. 36 note 8; Art. 47 note 16–18 – translation Art. 43 note 25, 34; Art. 46 note 20–23; Art. 91 note 5 – on lack or limitation of enforceability Art. 49 note 1–17 694

– conditions Art. 49 note 4–7 – effect Art. 49 note 13–15 – language questions Art. 49 note 16–17 – procedure Art. 49 note 8–12 – rectification of Art. 37 note 1–5; Art. 48 note 1–27 – authentic instrument or agreement Art. 67 note 1 – competent court Art. 37 note 3; Art. 48 note 5 – effect Art. 48 note 12 – incorrect contents Art. 37 note 2 – procedure Art. 38 note 4; Art. 48 note 5–11 – time limit Art. 48 note 7 – return decision (see return order) – service Art. 55 note 5–7 – scope of review Art. 36 note 5 – time limit for application Art. 36 note 7 – withdrawal of Art. 48 note 1–27 – application Art. 44 note 12–13 – authentic instrument or agreement Art. 67 note 1 – conditions Art. 48 note 13–17 – procedure Art. 48 note 18–25 – effect Art. 48 note 26 stay of proceedings Art. 19 note 1; Art. 44 note 1–2; Art. 63 note 1–18 – conditions Art. 44 note 4–6; Art. 63 note 5 – mandatory Art. 19 note 36–37; Art. 20 note 64–67 substantive scope of the Brussels IIter Regulation – administrative divorce proceedings Art. 1 note 5–14 – exclusion of private and religious proceedings Art. 1 note 16–17 – nature of the court Art. 1 note 5 – non-judicial proceedings Art. 1 note 5 Sweden Introduction note 15, 21, 145, 177; Art. 1 note 25, 37, 61; Art. 2 note 10; Art. 17 note 62; Introduction 64–68 note 6; Art. 76 note 3; Art. 80 note 13; Introduction 94–99 note 3, 7; Art. 94 note 1–22, 31; Art. 95 note 11; Art. 97 note 32 – legal separation Art. 1 note 59 – Nordic Convention of 6 February 1931 Introduction 94–99 note 3–4, 7; Art. 94 note 4, 9–23 – opposition to Rome III Introduction note 13 – Nordic exception Introduction 94–99 note 13; Art. 94 note 10–11 – parental agreements on custody and access Art. 1 note 7

Index

territorial scope of the Brussels IIter Regulation (see scope of the Brussels IIter Regulation, territorial) translation of documents Art. 31 note 7–10; Art. 32 note 11; Art. 43 note 30–35; Art. 46 note 18–19; Art. 47 note 16–18; Art. 81 note 8; Art. 91 note 1–6 transmission of documents Art. 24 note 5; Art. 29 note 12–14; Introduction 76–84 note 12; Art. 80 note 15; Art. 87 note 1–5

unification of substantive family law

Intro-

duction note 16 – competence of the EU Introduction note 17

United Kingdom Introduction note 5, 13, 92, 97, 110, 148, 162; Art. 1 note 73; Art. 2 note 40; Art. 19 note 33; Introduction 30–37 note 40, 51; Art. 63 note 19; Introduction 64–68 note 6; Art. 72 note 1–18; Introduction 94–99 note 2, 26–31 – reactivation of conventions Art. 94 note 26–31 – (see Brexit)

visiting rights Art. 9 note 14 wrongful removal Art. 2 note 37–39; Art. 9 note 20–21 – jurisdiction Art. 9 note 1–62

695