Brussels II

Author:Alegria Borras
Profession:Professor of Private International Law at the University of Barcelona since 1985
Pages:52-90
SUMMARY

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 ('Brussels II Regulation) and Regulation (EC) No 2201/2003 repealing it ('Brussels IIa Regulation')

 
INDEX
CONTENT

    Alegra Borras has been Professor of Private International Law at the University of Barcelona since 1985, and was previously at the University of Cordoba and at the Autonomous University of Barcelona. She was a professor at the Academy of International Law at The Hague in 1994, having also been Director of Studies there in 1989. She will be the guest professor for a new course there in 2005.

    She has been Spain's representative at the Hague Conference on Private International Law since 1987, and also Spain's representative for cooperation on justice (civil matters) in the European Union since 1993 and rapporteur on the Brussels II Convention for which she drafted the explanatory report published in Official Journal C 221 of 16 July 1998, together with the convention which was the basis for Regulation (EC) No 1347/ 2000. She is a member of numerous scientific and professional associations - Spanish, international and foreign - particularly the European Group for Private International Law (Groupe europen de droit international prive) which she has chaired since September 2003.

    She is the author of over 100 publications on private international law and European Community law, particularly on international protection of children and adoption, international family law and successions law, international civil proceedings and the Brussels and Lugano Conventions, Community private international law, foreigners law and non-unified legal systems law.

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I Background and Current Situation
  1. Considering that family law was not previously a matter of any interest to a Community centred on purely economic issues, developments in family law within the European Union in recent years have been truly spectacular. A situation of complete lack of provision in the field of family law has been transformed in a very short space of time by the adoption, firstly, of Council Regulation (EC) No 1347/2000 and, subsequently, of Regulation (EC) No 2201/2003, its intended replacement. An insight into the background is required for an understanding of these developments.

  2. The immediate background was the adoption of the Brussels Convention of 28 May 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (the 'Brussels II Convention') under the third pillar of the Treaty of Maastricht, which was accompanied by a report drafted by the rapporteur 1. However, the 1998 convention did not come into force because the Treaty of Amsterdam came into force on 1 May 1999 and reversed the intergovernmental approach which had prevailed up to then in judicial matters; on the basis of Articles 61(c) and 67 of the Treaty establishing the European Community, the Commission submitted a proposal for a regulation 2 to transform the 1998 convention into a regulation, which resulted in the adoption of Regulation (EC) No 1347/2000 of 29 May 2000 (the 'Brussels II Regulation' 3) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. The text of the convention was changed little during transformation and the amendments made were either the result of the transformation of the convention into a regulation or due to the fact that, in the course of the process of review and transformation of the 1968 Brussels Convention into Regulation (EC) No 44/2001, some improvements had been made which merited incorporation. That is how the Brussels II Regulation 4 came to be approved on 29 May 2000 and entered into force on 1 March 2001 (in accordance with Article 46 thereof).

  3. In a marriage breakdown, a foreign element is an increasingly frequent occurrence, as it is in relationships between parents and children, which gives rise to three problems: international jurisdiction, applicable law, andPage 53 recognition and enforcement of judgments. The Brussels II Regulation provides an answer to the first and the third of these questions and is therefore what is known as a 'double' instrument in that it regulates both jurisdiction and the recognition and enforcement of judgments. The issue of the law applicable to divorce has not yet been dealt with in depth nor has it been the subject of any initiative 5. It remains somewhat surprising that measures have been taken to facilitate movement of judgments in matrimonial matters without any attempt to unify conflict-of-law rules at the same time, given that approximation of national legislation is almost inconceivable at the moment.

  4. A further development should be mentioned in this context. The Tampere European Council established that the principle of mutual recognition of judgments was a cornerstone for the creation of a genuine area of justice, stressing rights of access as a matter of priority in the field of family law. This led France to present an initiative on 3 July 2000 with a view to adopting a Council regulation on the mutual enforcement of judgments on rights of access to children 6, which was linked to Regulation (EC) No 1347/2000 in that it confined itself to simplifying the recognition and enforcement of judgments on rights of access given in matrimonial proceedings and in relation to the children of both spouses. That limitation clearly signalled a fear of going beyond the legal basis provided by Articles 61 (c) and 67 of the Treaty. However, the limitation was deemed inappropriate in view of the need to ensure equal treatment for all children. Accordingly, the Commission submitted a proposal 7 which resulted in the adoption of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 8. Article 72 of this regulation provides that the regulation will enter into force on 1 August 2004 and apply from 1 March 2005. The first comment to make here is that there has been no amendment to the measures on annulment, divorce and separation, the object being to amend the rules on child protection in such a way that it is not confined to protection on grounds of marriage breakdown or protection only of the children of both spouses. Hence the usefulness of the comparative table in Annex V to Regulation (EC) No 2201/ 2003 showing the correspondence between the articles of the two regulations 9. The following points focus on the main aspects of Regulation (EC) No 2201/2003 and, in particular, draw attention to the differences between it and Regulation (EC) No 1347/2000, which it replaces.

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II Scope
1. Territorial Scope
  1. Both regulations apply in principle to the 'Member States' but in practice exclude Denmark since, in accordance with Article 69 of the EC Treaty, Denmark does not participate in the adoption of Community acts pursuant to Title IV and is therefore not bound by such instruments.

Accordingly, Article 2 of Regulation (EC) No 2201/2003 which gives a series of definitions, defines 'Member State' as 'all Member States with the exception of Denmark'. The United Kingdom and Ireland exercised their right under Article 69 of the EC Treaty to opt in. The regulations thus apply to 14 Member States.

2. Material Scope
  1. The instruments under examination originated in the work of the European Group on Private International Law 10 which discussed the matter in Louvain-la-Neuve in 1991 on the basis of work by C. Kohler 11, starting from Article 220 of the EC Treaty and conflicting competence in matters of family law. The outcome became known as the 1993 'Heidelberg project', which was more ambitious in terms of material scope than the instruments discussed here, which do not cover the issues of personal and family law excluded from the scope of the 1968 Brussels Convention and Regulation (EC) No 44/2001. It is also worth recalling that the Jenard report 12 pinpointed difficulties with family law issues at a time when there were only six Member States with more closely related legal systems than at present.

  2. The material scope of the regulations is set out in Article 1 in each case, with a distinction to be drawn between matters relating to matrimonial proceedings and those pertaining to parental responsibility.

(a) In relation to matrimonial proceedings, the scope of the regulations is very limited. In fact, it is confined to proceedings relating to the marriage bond as such 13, i.e. annulment, divorce and separation 14. So the recognition of judgments affects only the dissolution of the marriage link. That is the description in the explanatory report on the 1998 convention and also in recitals 10 and 8 of the Brussels II and Brussels IIa Regulations, respectively 15. The scope is thus very limited, useful though it is to the public. In reality, a divorce settlement includes provisions on the couple's economic arrangements and otherPage 55 matters and the provisions to be used for those will have to be those of national legislation or of other international conventions to which the States are party. All of that creates obvious complications for law professionals involved, as a result of the ensuing 'depeage' 16.

(b) The difference between the two instruments lies in the protection of children. Regulation (EC) No 1347/2000 includes ancillary claims relating to parental responsibility for the children of both spouses. It therefore covers protection of the children of both spouses on issues that are closely linked to the matrimonial proceedings, taking into account how directly children are affected by the breakdown between their parents.

The Brussels IIa Regulation applies to 'the attribution, exercise, delegation, restriction or termination of parental responsibility' (Article 1(1)(b)), which, as explained in recital 5, stems from a desire to 'ensure equality for all children', with the result that the regulation 'covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding'. The problems relating to Member States' signing and ratifying the 1996 Hague Convention on the Protection of Children cast some doubt on the wisdom of including the two areas in a single instrument and suggest that it might have been better to have kept a separate instrument for matters relating to marriage breakdown. The case for including the two areas in the same instrument is made in recital 6, which states that 'since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is more appropriate to have a single instrument for matters of divorce and parental responsibility'.

The reference to parental responsibility as a whole has two implications. Firstly, Article 1(2) listing the matters which 'in particular' fall within the scope of the regulation and Article 1 (3) listing the matters to which Regulation (EC) No 2201/2003 does not apply are clear parallels of Articles 3 and 4 of the 1996 Hague Convention. Secondly, a number of definitions had to be included in Article 2. Importantly, 'parental responsibility' is defined in Article 2(7) as 'all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access'. The Lagarde report on the 1996 Hague Convention offers a similar, albeit wider, definition 17. It should be stressed that it was not possible to include a definition of this kind in the Brussels II Convention or in the recitals to the Brussels II Regulation 18, which shows that attitudes have become more flexible since then.

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3. Scope in Time
  1. As stated earlier, the Brussels II Regulation came into force on 1 March 2001 (Article 46) and, as a result (Article 42(1)), its provisions apply only to proceedings instituted after that date. But Article 42(2) does lay down a transitional provision to the effect that judgments given after the date of entry into force of the regulation in proceedings instituted before that date would be recognised and enforced in accordance with the provisions of the regulation if jurisdiction was founded on rules which accorded with those provided for either in the regulation itself or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. Nevertheless, that rule does not cover all of the transitional law problems and we shall have occasion, later in this report, to deal with problems relating to Us pendens, which the Brussels IIa Regulation, with more complex entry into force and transitional provisions, has not solved.

  2. Regulation (EC) No 2201/2003 entered into force on 1 August 2004 (Article 72) but only applies from 1 March 2005, with the exception of Articles 67 ('Information on central authorities and languages accepted'), 68 ('Information relating to courts and redress procedures'), 69 ('Amendments to the Annexes') and 70 ('Committee'), which apply from the date of entry into force. A similar distinction between entry into force and application can be found in Article 24 of 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 19.

  3. Hence the added importance in this case of the transitional provisions, which are set out in Article 64 and provide for four possibilities:

(a) The general rule in paragraph 1, which is that the regulation will apply only to proceedings instituted after its date of application.

(b) The regulation will also apply to the recognition and enforcement of judgments given after its date of application in proceedings instituted before its date of application but after the date of entry into force of Regulation (EC) No 1347/2000 in cases where jurisdiction is founded on rules which accord with those provided for in Regulation (EC) No 2201/2003, Regulation (EC) No 1347/2000 or a convention between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

(c) Judgments given before the date of application of Regulation (EC) No 2201/2003 in proceedings instituted after the entry into force of Regulation (EC) No 1347/2000 will be recognised and enforced inPage 57 accordance with Regulation (EC) No 2201/2003 provided that they relate to matrimonial proceedings or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings.

(d) Judgments given before the date of application of Regulation (EC) No 2201/2003 but after the entry into force of Regulation (EC) No 1347/ 2000 in proceedings instituted before the entry into force of Regulation (EC) No 1347/2000 are subject to the same material limitation as that in (c) above. Additionally, jurisdiction must be founded on rules which accord with those provided for in Regulation (EC) No 2201/ 2003, Regulation (EC) No 1347/2000 or a convention between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

III International Jurisdiction
1. The Structure of Chapter II on Jurisdiction in Regulation (EC) No 2201/2003
  1. The material scope of Regulation (EC) No 1347/2000 determined that the core of the regulation was in Article 2, which based grounds of jurisdiction in matrimonial matters on the principle of a real link between the person and a given Member State. Article 3 defined the cases where the authorities of the Member State in question also had jurisdiction in matters relating to the protection of the children of both spouses following a marriage breakdown. The amendment of the scope of the convention in Regulation (EC) No 2201/2003 resulted in a change in the structure of Chapter II, which is now divided into three sections: the first on jurisdiction in matters relating to divorce, legal separation and marriage annulment, the second on jurisdiction in matters of parental responsibility, and the third on provisions common to both.

2. Grounds of International Jurisdiction in Matrimonial Matters
  1. The first point to make in relation to Chapters II and III is that the Brussels IIa Regulation was prepared on the clear understanding that no changes would be made to the provisions on divorce, separation or annulment, with the result that all earlier comments on these matters are fully applicable to the recently approved regulation 20. The grounds of jurisdic-Page 58tion are exclusive, alternative and objective within the meaning given to the term 'exclusive' in Article 6 (Article 7 of Regulation (EC) No 1347/ 2000), which is not the same meaning as in the 1968 Brussels Convention and in Regulation (EC) No 44/2001 21. There is therefore no possibility of express or tacit submission.

    13- There were, in fact, two possible starting points for determining jurisdiction in matrimonial matters: either to incorporate uniform rules of jurisdiction in matters of divorce, providing a limited number of alternatives without any hierarchy, or, taking the opposite approach, to incorporate no rules of jurisdiction but simply establish permissible grounds of jurisdiction. Article 3 (Article 2 of Regulation (EC) No 1347/2000) follows the first approach. The decision to include a number of specific grounds reflects their existence in the legal order of various Member States and their acceptance by the other Member States, endeavouring to reach an agreement acceptable to all.

  2. The result is that there are seven different grounds of jurisdiction for divorce, separation and annulment proceedings, leading to a degree of favor divortii 22. For some, that result is open to criticism 23, but, in my opinion, the grounds adopted endeavour to meet objective requirements, are in line with the interests of the parties and endeavour to be sufficiently flexible to meet the needs of individuals' mobility and finally to respond to individual requirements without sacrificing legal certainty. If there is a risk of forum shopping, the solution should not be to reduce the number of grounds of jurisdiction but to unify the Member States' conflict-of-law rules, as was done by the 1980 Rome Convention on the Law applicable to Contractual Obligations.

    The actual grounds adopted are largely based on habitual residence although the mobility of people in Europe and the range of possible situations may make it difficult to identify a single place of residence for the purposes of the rule 24. Some account has likewise been taken of nationality and of domicile within the meaning of the term as used in the United Kingdom and Ireland (paragraph 2). That rule is also perfectly acceptable since it certainly does not constitute discrimination within the meaning of Article 12 of the EC Treaty 25.

    Provision is likewise made for counterclaims (Article 4, formerly Article 5) and for the conversion of legal separation into divorce, a matter which was discussed at length during the preparation of the 1998 convention given the basic difficulty arising from the fact that several Member States do not have legal separation as a stage prior to divorce and in view of the need to lay down a provision giving the authorities of the Member State which had issued a judgment on a legal separation jurisdiction to convertPage 59 the separation into a divorce, provided, of course, that the law of that Member State so provides, as set out in Article 5 (Article 6 of Regulation (EC) No 1347/2000).

  3. With regard to extra-Community disputes, Article 7 (Article 8 of Regulation (EC) No 1347/2000) corresponds to Article 4 of the 1968 Brussels Convention. That obviates the need for a provision, as proposed by some States in the course of the negotiations, to the effect that the grounds in the convention would apply only if both spouses were European citizens habitually resident in the territory of the Member States and that in all other cases national law would apply 26. Article 7 thus deals with what is termed 'residual jurisdiction'. As stated in the explanatory report on the convention, the nature of the jurisdictions laid down in Articles 2 to 6 (now Articles 3 to 6) renders unnecessary a provision such as Article 3 of the 1968 Brussels Convention, hence some jurisdictions of that nature existing in the Member States are included purely as examples 27.

3. Jurisdiction Regarding Parental Responsibility
  1. Although, as stated earlier, Regulation (EC) No 2201/2003 contains significant amendments in the area of parental responsibility, there is still a need to refer to the provisions of the text currently in force (i.e. Regulation (EC) No 1347/2000 28. The forums referred to in Article 2 of Regulation (EC) No 1347/2000 (Article 3 of Regulation (EC) No 2201/2003) for matrimonial proceedings have force of attraction regarding parental-responsibility issues, hence the rules of jurisdiction in Articles 3 and 4. But that force of attraction is limited in several respects. Firstly, in relation to the children affected 29, who can only be the children of both spouses, whether biological or adopted, but not other children, such as, for instance, the children of one or other of the spouses from a previous union. Secondly, it will affect only children habitually resident in the State whose authorities have jurisdiction for the divorce judgment and will affect those residing in another State only if the conditions laid down are met; under no circumstances will the regulation apply to a child habitually resident in a non-member State. Finally, the jurisdiction of the divorce courts in relation to parental responsibility for the children of both spouses is not unlimited (perpetuatio jurisdictionis); it will cease on termination of the matrimonial proceedings.

  2. In the new regulation (Regulation (EC) No 2201/2003), these matters are dealt with in Section 2, where significant amendments have been introduced. The provisions here could be grouped under the following headings: the general rule, jurisdiction in cases of child abduction, jurisdiction of the authorities in the Member State of the divorce, jurisdiction based onPage 60 presence, residual jurisdiction and jurisdiction of the court best placed to hear the case.

(a) Under the general rule in Article 8, jurisdiction lies with the authorities of the Member State in which the child is habitually resident at the time the court is seised, fully in keeping with Article 5(1) of the 1996 Hague Convention. However, there is divergence in the event of a change of residence: whereas, under the 1996 Hague Convention, jurisdiction is automatically transferred to the authorities of the State of the child's new habitual residence (except in cases of abduction or wrongful retention), Article 9 of Regulation (EC) No 2201/2003 provides that the authorities of the Member State of the child's former habitual residence retain jurisdiction during a three-month period for the purpose of modifying a judgment on access rights issued before the child moved, where the holder of the access rights pursuant to the judgment in question continues to reside in that Member State and has not accepted the jurisdiction of the authorities of the Member State of the child's new habitual residence.

(b) The new regulation's most controversial provisions, particularly on account of their connection with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, are Articles 10 ('Jurisdiction in cases of child abduction') and 11 ('Return of the child'). Article 10 retains the jurisdiction of the authorities of the Member State of habitual residence prior to removal or retention until the child has acquired a new habitual residence and certain other conditions are met. Article 11 cites Articles 12 and 13 of the 1980 Hague Convention in relation to the procedure for return in cases of wrongful removal or retention, drawing in effect on Article 36 of the convention as regards the possibility of limiting the restrictions to which the return of a child may be subject 30. The main novelty is the procedure where the return of a child is refused pursuant to Article 13 of the Hague Convention in so far as it is not the Member State to which the child has been removed that has the final word on the return but rather the authorities with jurisdiction under the regulation, with that authority's judgment being enforceable in accordance with the regulation itself (Article 11(8)), i.e. even in the Member State to which the child has been removed and whose authorities gave a non-return decision.

(c) Inappropriately entitled 'Prorogation of jurisdiction', Article 12 of the regulation contains complicated rules concerning the possible force of attraction of a court hearing a matrimonial proceeding. Clearly, it refers to cases where the child's habitual residence is not in the State whose authorities have jurisdiction in the proceeding in question. Here it should be borne in mind that Article 52 of the 1996 Hague ConventionPage 61 limits inter se agreements, such as a Community instrument, to those which assume habitual residence in one of the contracting States, which is why Article 12(4), on the question of children who have their habitual residence in a third State that is not a contracting party to the convention, provides in such cases that 'jurisdiction under this Article shall be deemed to be in the child's interest, in particular if it is found impossible to hold proceedings in the third State in question'.

(d) Article 13 contains a rule based on child presence and Article 14 provides for residual jurisdiction in cases where jurisdiction cannot be determined from the earlier articles. In such cases, jurisdiction is determined, in each Member State, by the laws of that State.

(e) A novelty, Article 15 introduces the possibility of a competent court declining jurisdiction in favour of a court of another Member State which is 'better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child'. The other Member State must be one 'with which the child has a particular connection' as defined in paragraph 3 (i.e. new residence, former residence, nationality, residence of a holder of parental responsibility or location of property). These can therefore be regarded as alternative forums which do not clash with constitutional provisions on the requirement for a judge predetermined by law and which are consequently not forum non conven-iens in the common law sense. This article is modelled on Articles 8 and 9 of the 1996 Hague Convention on the Protection of Children 31.

4. Application of Rules of Jurisdiction
  1. If it is to operate correctly, the regulation requires implementing provisions on the application of the rules of jurisdiction and these measures are the subject matter of Chapter II, Section 3 entitled 'Common provisions' and comprising Articles 16 to 20.

    Article 16 contains the rule for determining when a court is deemed to have been seised, reproducing the provisions set out in Article 30 of Regulation (EC) No 44/2001 (the Brussels I Regulation) for which there is a precedent in Regulation (EC) No 1347/2000 (Article 11(4)) but not in the 1998 convention. The rule introduces a 'dual-date' system, which needs to be taken into account in the case of Us pendens (discussed below). In any event, the separation of this provision was a positive development.

    The second provision on the matter relates to examination as to jurisdiction and admissibility and is set out in Articles 17 and 18 (Articles 9 and 10 of Regulation (EC) No 1347/2000), which draw on Articles 19 and 20Page 62 of the 1968 Brussels Convention. It should be noted that, contrary to the situation under that convention, it does not matter whether or not the respondent appears. The obligation applies to the court. Naturally, Article 18 refers to Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents and to the 1965 Hague Convention on the same subject if the provisions of Regulation (EC) No 1348/2000 do not apply.

    The third provision is a special rule on provisional measures in Article 20 (Article 12 of Regulation (EC) No 1347/2000). The rule is sound and takes account of Court of Justice case-law 32. Two restrictions apply in this instance: (i) jurisdiction applies only in urgent cases so as to prevent circumvention of other rules of jurisdiction in the regulation; (ii) jurisdiction is provisional since the provisional measures taken cease to apply as soon as the court having jurisdiction as to the substance under the regulation adopts the measures necessary to deal with the situation.

  2. Worthy of special mention is Article 19 (formerly Article 11) whose provisions on lis pendens and dependent actions are among the most important provisions in the regulation, and, in my view, together with Article 21 (formerly Article 14) to which I shall refer later, would be sufficient in themselves to justify adoption of the regulation and the drafting amendments made to facilitate understanding.

    One of the problems with matrimonial proceedings is that each of the spouses may address the court of a different State, resulting in parallel proceedings that may lead to two contradictory judgments. Hence we have lis pendens in the classic sense, on the one hand, and dependent actions or 'false Us pendens 33, on the other, in addition to differences between legal systems on the questions concerned. Significantly simplifying Article 11 of the 1998 convention and of Regulation (EC) No 1347/2000, Article 19(1) of the new regulation covers matrimonial proceedings and Article 19 (2) covers proceedings relating to parental responsibility. Matrimonial proceedings pose a number of questions, such as what happens when one of the legal systems involved has no provision for separation or annulment, or what happens when the first case filed is for annulment and the second for divorce. The only requirement in such situations is that the proceedings be 'between the same parties', in which case the court second seised stays its proceedings of its own motion until the jurisdiction of the court first seised is established. By contrast, proceedings in relation to parental responsibility must 'relate to the same child and involve the same cause of action', with the same proceeding-staying consequence as in paragraph 1.

    Paragraph 3 provides that prior temporis applies in both cases if the jurisdiction of the court first seised is established; the court second seised isPage 63 required to decline jurisdiction in the first-seised court's favour. The innovation is that the paragraph permits the party who brought the action before the court second seised, if he or she so wishes, to bring it before the court having jurisdiction because it was first seised. That provision has, however, elicited reservations since the option is not limited. Questions remain: Which law is applicable? What will be the domestic territorial rule of jurisdiction?, etc. 34.

  3. However, as already stated, in the initial stage of implementation of Regulation (EC) No 1347/2000, there were some problems regarding transitional situations which were not resolved by the transitional provisions and which could be exacerbated by the application of the new Regulation (EC) No 2201/2003. These problems have so far been of three different kinds:

    (1) The first situation is one in which proceedings were brought before the court first seised before the entry into force of the regulation while proceedings before the court second seised were brought after entry into force. In such a case, it is possible to apply the interpretation given by the Court of Justice in its judgment of 9 October 1997 35 to the effect that the Us pendens rule applies where both courts would have jurisdiction under the convention, that the purpose of the rule is to have only one set of proceedings within the Community and finally to allow a judgment which can be recognised in all the Member States.

    (2) In my view, the same solution can be used for the second group of cases, those in which both sets of proceedings were brought before the entry into force of the regulation but since no judgment was given before entry into force, it will, of necessity, be given after entry into force. To my mind, the reasons set out in the first paragraph, as taken from Court of Justice case-law, justify application of the same rule.

    (3) The third group, which is highly sensitive for a large number of European citizens, comprises cases in which the judgment was given before the regulation came into force. It is clearly impossible to apply the recognition procedure to such cases since they are excluded by Article 64 (Article 42 of Regulation (EC) No 1347/2000). That is an outcome that many European citizens obviously find difficult to accept. The situation is different from that under Article 24 of the Hague Convention of 1 June 1970 (to which some Member States are contracting parties), which provides that the convention applies regardless of the date on which the divorce or separation was obtained, although States may reserve the right to apply it only to those obtained after the entry into force of the convention.

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IV Recognition and Enforcement of Judgments
  1. Chapter III of Regulation (EC) No 2201/2003 contains rules on recognition and enforcement of judgments. There have been a number of important innovations here with respect to Regulation (EC) No 1347/2000. Firstly, had the regulation been confined to changes to the marriage bond, judgments would normally have affected only civil-status records and no enforcement rules would have been required. It was the inclusion of provisions on parental responsibility that made enforcement provisions necessary in Regulation (EC) No 1347/2000 in the first place, which is why Regulation (EC) No 2201/2003 has a Section 1 on recognition, a Section 2 on declaration of enforceability and a Section 3 on common provisions. Secondly, new sections have been added. These are Section 4 on enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the minor (an important addition in keeping with the Tampere mandate), Section 5 on authentic instruments and agreements (necessary for some countries even if unknown in others), and Section 6 on other provisions, including the enforcement procedure (Article 47), costs (Article 49), legal aid (Article 50), exclusion of security or bond (Article 51) and legalisation or other similar formalities (Article 52).

1. Recognition of Judgments
  1. Firstly and as far as judgments in matrimonial cases are concerned, the decision must be positive, as emerges from Article 2(4) (formerly Article 13) 36 which makes it clear that the judgment must be one granting a divorce, legal separation or marriage annulment. That means that if the decision is negative, it is possible to bring action before the courts of the other Member State having jurisdiction under Article 3. The interpretation is therefore favor negotii. Moreover, it must be borne in mind that only positive decisions have the force of res judicata. That raises the question of whether this interpretation applies only to divorce and separation or also to annulment. In Bonomi's view 37, it could not apply to annulment since in that case the problem is ex tunc, i.e. it existed at the time that the marriage was contracted. In my view, there is no such distinction since, in the event of a negative decision, whether it relates to divorce or to annulment, the marriage continues to exist and there is therefore no reason not to allow further recourse.

  2. As stated in connection with lis pendens, there is another rule which would, of itself, justify the adoption of the regulation. It is Article 21 (for-Page 65merly Article 14), which reinforces the scope of recognition. It stipulates that judgments given in a Member State are to be recognised in the other Member States without any special procedure being required, a provision based on the principle of mutual confidence. The most important point, however, is that no special procedure is required for updating the civil-status records of a Member State (paragraph 2) since that is to be done on the basis of the judgment given in matrimonial proceedings in another Member State. It is thus obvious that Article 14 (now Article 21) introduced an important change which will be appreciated by European citizens, given that updating the civil-status records is the effect most commonly sought. Following entry into force of the regulation, that provision will save time and expense since the civil-status records will be updated without requiring any further decision. Few bilateral agreements currently in force have gone so far. Nevertheless, problems arise from the fact that recognition is not judicial but is equivalent to recognition for the purposes of the civil-status records.

    Recognition without the need for any further procedure would require a guarantee that it may be appealed against, in accordance with the procedure provided for in the regulation itself (Article 21(3)), which is the appeal procedure laid down for enforcement 38.

  3. A specific issue for Spain, Italy and Portugal is that of concordats with the Holy See, as referred to in Article 63 (formerly Article 40). Since the regulation is confined to 'civil matters' (Article 1(1)), it would have been consistent with the secular nature of the European project to limit the scope of the regulation to civil procedures, and that would not have infringed the agreements with the Holy See but would simply have circumscribed the material scope of the regulation. But the three Member States referred to have concordats, although the content is different in each case, and this fact led to the insertion of a provision on the matter.

    A matter of considerable interest is the protection of defence rights in proceedings under canon law, as referred to by Baratta 39 in relation to the judgment of the European Court of Human Rights of 20 July 2001 40. In addition, default of appearance by the respondent in proceedings under canon law may raise questions relating to the principle of freedom of religion and the non-denominational nature of the State 41.

  4. With regard to grounds of non-recognition or non-enforcement, Articles 22 and 23 (formerly Article 15) follow Article 27 of the 1968 Brussels Convention, although the grounds of non-recognition provided for in the 1996 Hague Convention on the Protection of Children also had to be taken into consideration in order to ensure harmonious application of that convention and the Community instrument. Article 22 sets out thePage 66 grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while Article 23 sets out the grounds of non-recognition of judgments relating to parental responsibility. The reason for the distinction is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the distinction is that the subject matter of matrimonial proceedings and the subject matter of parental-responsibility proceedings are not identical, so that the grounds for non-recognition cannot be the same in both cases.

  5. Of the grounds for non-recognition of judgments in matrimonial proceedings, the first, and the one which raises sensitivities among Member States, is the fact that the judgment is contrary to public policy in the requested State. For that reason, the provision needs to examined in conjunction with Articles 24 (formerly Article 17), 25 (formerly Article 18) and 26 (formerly Article 19).

    The second ground of non-recognition is default of appearance by the respondent. The text of Article 15 of the 1998 Brussels II Convention was amended on this point, following the amendment made to Article 27(2) of the Brussels I Convention 42. The earlier provision was amended to introduce some flexibility into the requirements for proper notification by replacing the words 'was not duly served' by 'was not served ... in such a way'. The danger is that, in practice, there is a tendency to interpret 'was not served ... in such a way' as meaning 'was not duly served' 43. It also stands to reason that that ground of non-recognition cannot be used if the respondent has accepted the judgment unequivocally, as, for instance, by remarrying.

    Understanding the grounds of non-recognition set out in subparagraphs (c) and (d), which refer to irreconcilable judgments, is no easy matter. In reality, they are a response to a practical need but the solution adopted is undoubtedly open to question 44.

    The first of those grounds is that the judgment in the Member State of origin is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought, regardless of whether the judgment in the latter Member State is earlier or later than the one in the State of origin. In practice, that is a purely marginal instance which will occur only if the lis pendens rule in Article 19 (already referred to) has not operated properly. The second ground refers to cases in which the judgment, whether given in another Member State or in a non-member State between the same parties, meets two conditions: it was given earlier and it fulfils the conditions necessary for its recognition inPage 67 the Member State in which recognition is sought. That, too, is a complex provision which may be of practical significance, particularly in relation to judgments given in third States and the conditions under which they are recognised in the Member States.

  6. In relation to the grounds of non-recognition and enforcement of measures relating to parental responsibility referred to in Article 23, it should be noted that some are common while others are particular to this situation and are also aligned on the 1996 Hague Convention. Firstly, it should be emphasised that irreconcilability with public policy is attenuated by the consideration to be given to the best interests of the child. Note also that there is no general safeguard of public policy in relation to decisions on rights of access (Article 41) and return (Article 42), which are referred to below. Secondly, we should point out that a decision may not be recognised or enforced if the child has not been given an opportunity to be heard or when any person claiming that the judgment infringes his or her parental responsibility has not been given an opportunity to be heard.

  7. Finally, I would add that neither the regulation in either of its versions nor the convention on which it is based contains any provision on capacity to contract a second marriage, although that was proposed by the European Parliament in its opinion, and it is something I personally supported. The European Parliament proposal was taken from Article 11 of the Hague Convention of 1 June 1970 on the Recognition of Divorces and made the necessary amendments, bearing in mind that the Hague Convention is a simple convention. Article 11 provides that 'a State which is obliged to recognise a divorce under this convention may not preclude either spouse from remarrying on the ground that the law of another State does not recognise that divorce'.

2. Declaration of Enforceability
  1. The title of Section II of Chapter II of the Brussels IIa Regulation ('Application for a declaration of enforceability') is designed to clarify the purpose of the provisions, which relate to intermediate measures to permit the enforcement of a foreign judgment (i.e. 'exequatur') rather than to enforcement measures themselves in the strict sense.

There have been a number of changes in this area recently. As to the procedure for enforcement, the 1998 Brussels II Convention followed the same scheme as provided for in the 1968 Brussels I Convention and thus had considerable advantages: it was initiated at the request of one of the parties and was a fast, simple Community procedure which applied in all the Member States. Yet when the 1968 convention was being revised andPage 68 transformed into the Brussels I Regulation, the exequatur and redress system in existence up to then was simplified, in accordance with requests from law professionals. That change was taken into account when the 1998 convention was being transformed into a regulation and, although the same degree of simplification as in 'Brussels I' was not achieved, there were consequences for the Brussels II Regulation, with the trend towards simplification continuing in the Brussels IIa Regulation. In the first instance, the list of courts having jurisdiction to decide on exequatur or redress does not appear in the Community instrument itself or in the annexes thereto but rather is notified directly to the Commission, which is responsible for updating the information and making it publicly available through publication in the Official Journal of the European Union or any other appropriate means (Article 68). This avoids having to amend the regulation each time a Member State makes a change to its national legislation 45. Secondly, in both instruments the party seeking or contesting recognition must produce (Articles 37 and 39) a copy of the judgment and a certificate using the standard form set out in Annex I ('Judgments in matrimonial matters') or Annex II ('Judgments on parental responsibility'). For updating or making technical amendments to these standard forms, the Commission will be assisted by an advisory committee in accordance with Decision 1999/468/EC (Articles 69 and 70). Thirdly, as in the Brussels I Regulation, the redress procedures against the enforcement decision and the decision refusing enforcement have been standardised. The application is made to one of the courts specified (Article 29), which must give a decision 'without delay' without allowing the person against whom enforcement is sought to make any submissions (Article 31, formerly Article 24); the application may be refused only for one of the reasons specified in Articles 22, 23 and 24 (formerly Articles 15, 16 and 17). The decision may be appealed against before the courts which are also listed (Article 33) and the appeal is dealt with according to the rules governing procedure in contradictory matters (Article 33 (b)) and may be contested only by the proceedings provided for in Article 34. The implication is that the limited reasons for refusal will have a dissuasive effect on the lodgement of appeals.

It should be stressed, however, that, unlike the Brussels I situation, the court from which exequatur is sought may refuse it on the grounds in Articles 22 and 23 and does not confine itself to formal examination of the certificate, as is the case under Article 41 of the Brussels I Regulation. The reason is that long experience in applying the 1968 Brussels Convention made it possible to take a step which would be premature on a matter for which the simplification of exequatur has only just begun.

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3. Specific Rules Concerning Rights of Access and Judgments Requiring the Return of the Child
  1. The substantive provisions of Regulation (EC) No 1347/2000 were confined to the matters discussed above. However, a new section was added to Regulation (EC) No 2201/2003 on the enforceability of certain judgments concerning rights of access and the return of a child (Article 40). A type of 'European enforcement order' has in effect been created. On the one hand, rights of access granted in an enforceable judgment given in a Member State 'shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition' provided that the judgment 'has been certified in the Member State of origin' in accordance with Article 41 (2) and using the standard form in Annex III. This provision should be linked to Article 48, which provides that the courts of the Member State of enforcement 'may make practical arrangements for organising the exercise of rights of access' if no such arrangements have been made by the courts having jurisdiction and subject at all times to any arrangements which such courts may make subsequently.

The same benefit of enforceability is granted to a judgment requiring the return of a child, on the conditions set out in Article 42.

Accordingly, as far as the issuing of the relevant certificate is concerned, control in the requested State has been replaced by control in the State of origin of the judgment, with the result that in these matters the eternal obstacle of public policy in the requested State has disappeared. There is no doubt that these provisions will have a very positive effect in relation to the interest of the child by facilitating access to both parents and, in practice, preventing unlawful removal or retention. The decision to include these provisions was undoubtedly influenced by Article 35 of the 1996 Hague Convention on the Protection of Children, which also seeks to prevent removals and facilitate rights of access.

V Cooperation Between Central Authorities in Matters of Parental Responsibility
  1. The positive experience of the Hague conventions in the area of cooperation between authorities on matters relating to the protection of children (international removals, international adoption) was reflected during the revision of the Brussels II Regulation by the addition of a new Chapter IVPage 70 devoted to that subject. It should also be noted that the central authorities of the Member States of the European Community designated under the 1980 Hague Convention on the Removal of Children had already been holding informal and highly successful meetings.

Drawing on that experience, Regulation (EC) No 2201/2003 provides for the designation of one or more central authorities (Article 53) and for the use as required of the European Judicial Network in civil and commercial matters created by Council Decision 2001/470/EC (Articles 54 and 58). The central authorities are to meet regularly (Article 58). Their general function (Article 54) is to improve the application of the regulation, but they may also assume specific functions in cases relating to parental responsibility (Article 55) and in cases of placement of a child in another Member State (Article 56).

VI Relations With Other Instruments
  1. The proliferation of legal instruments relating in whole or in part to the same matters creates a need for delimitation and clear disconnecting clauses. In addition to the stipulations concerning the concordats with the Holy See discussed earlier, three specific provisions were included in this connection in Regulation (EC) No 2201/2003.

The first provision (Article 59) concerns the continued existence of the Nordic Agreement. In my view, this provision was not necessary and should not have been included since Article 36 of the Brussels II Regulation was worded in identical terms and neither Finland nor Sweden made the declaration required for the Nordic Agreement to apply in their mutual relations.

The second provision provides that the regulation takes precedence over various international conventions (Article 60) to which all or some Member States are party. These are the 1961 Hague Convention on the Protection of Minors, the 1967 Luxembourg Convention on the Validity of Marriages, the 1970 Hague Convention on the Recognition of Divorces, the 1980 European Convention on Custody of Children and, lastly, the 1980 Hague Convention on Civil Aspects of Child Abduction. However, Article 62 adds that those conventions will continue to apply in matters not governed by the regulation and will 'continue to produce effects between the Member States which are party thereto, in compliance with Article 60'.

Lastly, a specific provision is devoted to the 1996 Hague Convention on the Protection of Children. It should not be forgotten that that conventionPage 71 was drawn up at the same time as Regulation (EC) No 1347/2000 and that there was a constant concern for consistency during negotiations, the first fruit of which was the joint signature of the convention by all the Member States on 1 April 2003 (ratification should follow). Thus, Article 61 provides that the regulation applies when the child has his or her habitual residence in a Member State, which is in accordance with Article 52(2) of the 1996 Hague Convention. Similarly, the regulation applies to the recognition and enforcement of measures adopted in one Member State and enforceable in another Member State. This is also fully consistent with the Hague Convention, Article 26(2) of which states simply that each contracting State 'shall apply to the declaration of enforceability or registration a simple and rapid procedure' - a global convention cannot be as specific as a Community instrument.

VII Final Considerations

The Brussels IIa Regulation and its predecessor Brussels II can be deemed a success, although their material scope is limited. If we ask what added value the regulation brings, we would have to conclude that in general it brings the treatment of family matters closer to that of economic matters, thus providing credibility and legal certainty for Union citizens at a time when a large majority of marital breakdown cases are intra-European. To be more specific, two provisions should be singled out as they are, in themselves, sufficient to justify the regulation: the lis pendens provision (Article 19, formerly Article 11) and the provision on the effects of recognition and updating of the civil-status records (Article 21, formerly Article 14).

In relation to matrimonial issues, it is to be regretted that matters normally linked to an annulment, divorce or separation, such as maintenance and the property consequences of the marriage, remain excluded. While we have the advantage of being able to use the Brussels I Regulation for the maintenance issues 46, the matrimonial property issue remains subject to the pre-existing system, whether autonomous or contractual. Despite its limitations, the regulation does resolve essential problems relating to intra-European marriage breakdown, and for that reason the application of the Brussels II Regulation, whose provisions on these matters are unchanged in Regulation (EC) No 2201/2003, is a good thing. The work thus begun must continue and progress needs to be made on the matrimonial matters excluded from the text.

Matters relating to child protection have been given a major boost by the recently adopted Brussels IIa Regulation. Firstly, the scope of the regulation hasPage 72 been extended, with the new text covering all children regardless of their family situation. Secondly, a 'European enforcement order' has been created for judgments on rights of access and return, the importance of which is stressed in recital 23. Thirdly and lastly, a procedure for cooperation between authorities has been introduced, which will fulfil an important and ultimately preventive function.

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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

The Council of the European Union

Having regard to the Treaty establishing the European Community, and in particular Article 61 (c) and Article 67(1) thereof,

Having regard to the proposal from the Commission47,

Having regard to the opinion of the European Parliament 48,

Having regard to the opinion of the Economic and Social Committee 49,

Whereas:

(1) The Member States have set themselves the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured. To establish such an area, the Community is to adopt, among others, the measures in the field of judicial cooperation in civil matters needed for the proper functioning of the internal market.

(2) The proper functioning of the internal market entails the need to improve and simplify the free movement of judgments in civil matters.

(3) This is a subject now falling within the ambit of Article 65 of the Treaty.

(4) Differences between certain national rules governing jurisdiction and enforcement hamper the free movement of persons and the sound operation of the internal market. There are accordingly grounds for enacting provisions to unify the rules of conflict of jurisdiction in matrimonial matters and in matters of parental responsibility so as to simplify the formalities for rapid and automatic recognition and enforcement of judgments.

(5) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Regulation does not go beyond what is necessary to achieve those objectives.

(6) The Council, by an Act 50 dated 2 8 May 1998, drew up a Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and recommended it for adoption by the Member States in accordance with their respective constitutional rules. Continuity in the results of the negotiations for conclusion of the Convention should be ensured. The content of this Regulation is substantially taken over from the Convention, but this Regulation contains a number of new provisions not in the Convention in order to secure consistency with certain provisions of the proposed regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

(7) In order to attain the objective of free movement of judgments in matrimonial matters and in matters of parental responsibility within the Community, it is necessary and appropriate that the cross-border recognition of jurisdiction and judgments in relation to the dissolution of matrimonial ties and to parental responsibility for the children of both spouses be governed by a mandatory, and directly applicable, Community legal instrument.

(8) The measures laid down in this Regulation should be consistent and uniform, to enable people to move as widely as possible. Accordingly, it should also apply to nationals of non-member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in the Regulation.

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(9) The scope of this Regulation should cover civil proceedings and non-judicial proceedings in matrimonial matters in certain States, and exclude purely religious procedures. It should therefore be provided that the reference to 'courts' includes all the authorities, judicial or otherwise, with jurisdiction in matrimonial matters.

(10) This Regulation should be confined to proceedings relating to divorce, legal separation or marriage annulment. The recognition of divorce and annulment rulings affects only the dissolution of matrimonial ties; despite the fact that they may be interrelated, the Regulation does not affect issues such as the fault of the spouses, property consequences of the marriage, the maintenance obligation or any other ancillary measures.

(11) This Regulation covers parental responsibility for children of both spouses on issues that are closely linked to proceedings for divorce, legal separation or marriage annulment.

(12) The grounds of jurisdiction accepted in this Regulation are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction; the decision to include certain grounds corresponds to the fact that they exist in different national legal systems and are accepted by the other Member States.

(13) One of the risks to be considered in relation to the protection of the children of both spouses in a marital crisis is that one of the parents will take the child to another country. The fundamental interests of the children must therefore be protected, in accordance with, in particular, the Hague Convention of 25 October 1980 on the Civil Aspects of the International Abduction of Children. The lawful habitual residence is accordingly maintained as the grounds of jurisdiction in cases where, because the child has been moved or has not been returned without lawful reason, there has been a de facto change in the habitual residence.

(14) This Regulation does not prevent the courts of a Member State from taking provisional, including protective, measures, in urgent cases, with regard to persons or property situated in that State.

(15) The word 'judgment' refers only to decisions that lead to divorce, legal separation or marriage annulment. Those documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State are treated as equivalent to such 'judgments'.

(16) The recognition and enforcement of judgments given in a Member State are based on the principle of mutual trust. The grounds for non-recognition are kept to the minimum required. Those proceedings should incorporate provisions to ensure observance of public policy in the State addressed and to safeguard the rights of the defence and those of the parties, including the individual rights of any child involved, and so as to withhold recognition of irreconcilable judgments.

(17) The State addressed should review neither the jurisdiction of the State of origin nor the findings of fact.

(18) No procedures may be required for the updating of civil-status documents in one Member State on the basis of a final judgment given in another Member State.

(19) The Convention concluded by the Nordic States in 1931 should be capable of application within the limits set by this Regulation.

(20) Spain, Italy and Portugal had concluded Concordats before the matters covered by this Regulation were brought within the ambit of the Treaty: It is necessary to ensure that these States do not breach their international commitments in relation to the Holy See.

(21) The Member States should remain free to agree among themselves on practical measures for the application of the Regulation as long as no Community measures have been taken to that end.

(22) Annexes I to HI relating to the courts and redress procedures should be amended by the Commission on the basis of amendments transmitted by the Member State concerned. Amendments to Annexes IV and V should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission 51.

(23) No later than five years after the date of the entry into force of this Regulation, the Commission is to review its application and propose such amendments as may appear necessary.

(24) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, have given notice of their wish to take part in the adoption and application of this Regulation.

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(25) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, is not participating in the adoption of this Regulation, and is therefore not bound by it nor subject to its application,

Has Adopted this Regulation
Chapter I Scope
Article 1
  1. This Regulation shall apply to:

    (a) civil proceedings relating to divorce, legal separation or marriage annulment;

    (b) civil proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings referred to in (a).

  2. Other proceedings officially recognised in a Member State shall be regarded as equivalent to judicial proceedings. The term 'court' shall cover all the authorities with jurisdiction in these matters in the Member States.

  3. In this Regulation, the term 'Member State' shall mean all Member States with the exception of Denmark.

Chapter II Jurisdiction
Section 1 General Provisions
Article 2 Divorce, Legal Separation and Marriage Annulment
  1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

    (a) in whose territory:

    - the spouses are habitually resident, or

    - the spouses were last habitually resident, in so far as one of them still resides there, or

    - the respondent is habitually resident, or

    - in the event of a joint application, either of the spouses is habitually resident, or

    - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

    - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his 'domicile' there;

    (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the 'domicile' of both spouses.

  2. For the purpose of this Regulation, 'domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

Article 3 Parental Responsibility
  1. The Courts of a Member State exercising jurisdiction by virtue of Article 2 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in that Member State.

  2. Where the child is not habitually resident in the Member State referred to in paragraph 1, the courts of that State shall have jurisdiction in such a matter if the child is habitually resident in one of the Member States and:

    (a) at least one of the spouses has parental responsibility in relation to the child;

    and

    (b) the jurisdiction of the courts has been accepted by the spouses and is in the best interests of the child.

  3. The jurisdiction conferred by paragraphs 1 and 2 shall cease as soon as:

    (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;

    or

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    (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;

    or

    (c) the proceedings referred to in (a) and (b) have come to an end for another reason.

Article 4 Child Abduction

The courts with jurisdiction within the meaning of Article 3 shall exercise their jurisdiction in conformity with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and in particular Articles 3 and 16 thereof.

Article 5 Counterclaim

The court in which proceedings are pending on the basis of Articles 2 to 4 shall also have jurisdiction to examine a counterclaim, in so far as the latter comes within the scope of this Regulation.

Article 6 Conversion of Legal Separation Into Divorce

Without prejudice to Article 2, a court of a Member State which has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides.

Article 7 Exclusive Nature of Jurisdiction Under Articles 2 to 6

A spouse who:

(a) is habitually resident in the territory of a Member State;

or

(b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her 'domicile' in the territory of one of the latter Member States,

may be sued in another Member State only in accordance with Articles 2 to 6.

Article 8 Residual Jurisdiction
  1. Where no court of a Member State has jurisdiction pursuant to Articles 2 to 6, jurisdiction shall be determined, in each Member State, by the laws of that State.

  2. As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his 'domicile' within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.

Section 2 Examination as to Jurisdiction and Admissibility
Article 9 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.

Article 10 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 Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters 52, 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.

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  3. Where the provisions of Council Regulation (EC) No 1348/2000 are not applicable, Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

Section 3 Lis Pendens and Dependent Actions
Article 11
  1. Where proceedings involving the same cause of action and between the same parties are brought 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. Where proceedings for divorce, legal separation or marriage annulment not involving the same cause of action and between the same parties are brought 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 that court.

    In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

  4. For the purposes of this Article, 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.

Section 4 Provisional, Including Protective, Measures
Article 12

In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

Chapter III Recognition and Enforcement
Article 13 Meaning of 'Judgment'
  1. For the purposes of this Regulation, 'judgment' means a divorce, legal separation or marriage annulment pronounced by a court of a Member State, as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings, whatever the judgment may be called, including a decree, order or decision.

  2. The provisions of 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.

  3. For the purposes of implementing this Regulation, documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also 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 referred to in paragraph 1.

Section 1 Recognition
Article 14 Recognition of a Judgment
  1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

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  2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for up-dating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another member State, and against which no further appeal lies under the law of that Member State.

  3. Any interested party may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be or not be recognised.

  4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

Article 15 Grounds of Non-Recognition
  1. A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised:

    (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;

    (b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally;

    (c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought;

    or

    (d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

  2. A judgment relating to the parental responsibility of the spouses given on the occasion of matrimonial proceedings as referred to in Article 13 shall not be recognised:

    (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;

    (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;

    (c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;

    (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;

    (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;

    (f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Article 16 Agreement With third States

A court of a Member State may, on the basis of an agreement on the recognition and enforcement of judgments, not recognise a judgment given in another Member State where, in cases provided for in Article 8, the judgment could only be founded on grounds of jurisdiction other than those specified in Articles 2 to 7.

Article 17 Prohibition of Review of Jurisdiction of 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 Article 15(1)(a) and (2)(a) may not be applied to the rules relating to jurisdiction set out in Articles 2 to 8.

Article 18 Differences in Applicable Law

The recognition of a judgment relating to a divorce, legal separation or a marriage annulment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.

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Article 19 Non-Review as to Substance

Under no circumstances may a judgment be reviewed as to its substance.

Article 20 Stay of Proceedings
  1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.

  2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.

Section 2 Enforcement
Article 21 Enforceable Judgments
  1. A judgment on the exercise of parental responsibility in respect of a child of both parties given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

  2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 22 Jurisdiction of Local Courts
  1. An application for a declaration of enforceability shall be submitted to the court appearing in the list in Annex I.

  2. The local jurisdiction shall be determined by reference to the place of the habitual residence of the person against whom enforcement is sought or by reference to the habitual residence of any child to whom the application relates.

    Where neither of the places referred to in the first subparagraph can be found in the Member State where enforcement is sought, the local jurisdiction shall be determined by reference to the place of enforcement.

  3. In relation to procedures referred to in Article 14(3), the local jurisdiction shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought.

Article 23 Procedure for Enforcement
  1. The procedure for making the application shall be governed by the law of the Member State in which enforcement is sought.

  2. The applicant must give an address for service within the area of jurisdiction of the court applied to. However, if the law of the Member State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

  3. The documents referred to in Articles 3 2 and 3 3 shall be attached to the application.

Article 24 Decision of the Court
  1. The court applied to shall give its decision without delay. The person against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

  2. The application may be refused only for one of the reasons specified in Articles 15, 16 and 17.

  3. Under no circumstances may a judgment be reviewed as to its substance.

Article 25 Notice of the Decision

The appropriate officer of the court shall without delay bring to the notice of the applicant the decision given on the application in accordance with the procedure laid down by the law of the Member State in which enforcement is sought.

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Article 26 Appeal Against the Enforcement Decision
  1. The decision on the application for a declaration of enforceability may be appealed against by either party.

  2. The appeal shall be lodged with the court appearing in the list in Annex II

  3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.

  4. If the appeal is brought by the applicant for a declaration of enforceability, the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 10 shall apply.

  5. An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. No extension of time may be granted on account of distance.

Article 27 Courts of Appeal and Means of Contest

The judgment given on appeal may be contested only by the proceedings referred to in Annex HI.

Article 28 Stay of Proceedings
  1. The court with which the appeal is lodged under Articles 26 or 27 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin or if the time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged.

  2. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

Article 29 Partial Enforcement
  1. Where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them, the court shall authorise enforcement for one or more of them.

  2. An applicant may request partial enforcement of a judgment.

Article 30 Legal Aid

An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 22 to 25, 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 addressed.

Article 31 Security, Bond or Deposit

No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in another Member State on the following grounds:

(a) that he or she is not habitually resident in the Member State in which enforcement is sought; or

(b) that he or she is either a foreign national or, where enforcement is sought in either the United Kingdom or Ireland, does not have his or her 'domicile' in either of those Member States.

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Section 3 Common Provisions
Article 32 Documents
  1. A party seeking or contesting recognition or applying for a declaration of enforceability shall produce:

    (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

    and

    (b) a certificate referred to in Article 33.

  2. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce:

    (a) the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document;

    or

    (b) any document indicating that the defendant has accepted the judgment unequivocally.

Article 33 Other Documents

The competent court or authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex IV (judgments in matrimonial matters) or Annex V (judgments on parental responsibility).

Article 34 Absence of Documents
  1. If the documents specified in Article 32(1)(b) or (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.

  2. If the Court so requires, a translation of such documents shall be furnished. The translation shall be certified by a person qualified to do so in one of the Member States.

Article 35 Legalisation or Other Similar Formality

No legalisation or other similar formality shall be required in respect of the documents referred to in Articles 32, 33 and 34(2) or in respect of a document appointing a representative ad litem.

Chapter IV General Provisions
Article 36 Relation With Other Instruments
  1. Subject to the provisions of Articles 38, 42 and paragraph 2 of this Article, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of this Regulation which have been concluded between two or more Member States and relate to matters governed by this Regulation.

    (2) (a) Finland and Sweden shall have the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply, in whole or in part, in their mutual relations, in place of the rules of this Regulation. Such declarations shall be annexed to this Regulation and published in the Official Journal of the European Communities. They may be withdrawn, in whole or in part, at any moment by the said Member States 53.

    (b) The principle of non-discrimination on the grounds of nationality between citizens of the Union shall be respected.

    (c) The rules of jurisdiction in any future agreement to be concluded between the Member States referred to in subparagraph (a) which relate to matters governed by this Regulation shall be in line with those laid down in this Regulation.

    (d) Judgments handed down in any of the Nordic States which have made the declaration provided for in subparagraph (a) under a forum of jurisdiction corresponding to one of those laid down in Chapter II, shall be recognised and enforced in the other Member States under the rules laid down in Chapter III.

    Page 82

  2. Member States shall send to the Commission:

    (a) a copy of the agreements and uniform laws implementing these agreements referred to in paragraphs 2 (a) and (c);

    (b) any denunciations of, or amendments to, those agreements or uniform laws.

Article 37 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:

- the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors,

- the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages,

- the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations,

- the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children,

- 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, provided that the child concerned is habitually resident in a Member State.

Article 38 Extent of Effects
  1. The agreements and conventions referred to in Articles 36(1) and 37 shall continue to have effect in relation to matters to which this Regulation does not apply.

  2. They shall continue to have effect in respect of judgments given and documents formally drawn up or registered as authentic before the entry into force of this Regulation.

Article 39 Agreements Between Member States
  1. Two or more Member States may conclude agreements or arrangements to amplify this Regulation or to facilitate its application.

    Member States shall send to the Commission:

    (a) a copy of the draft agreements;

    and

    (b) any denunciations of, or amendments to, these agreements.

  2. In no circumstances may the agreements or arrangements derogate from Chapters II or III.

Article 40 Treaties With the Holy See
  1. This Regulation shall apply without prejudice to the International Treaty (Concordat) between the Holy See and Portugal, signed at the Vatican City on 7 May 1940.

  2. Any decision as to the invalidity of a marriage taken under the Treaty referred to in paragraph 1 shall be recognised in the Member States on the conditions laid down in Chapter III.

  3. The provisions laid down in paragraphs 1 and 2 shall also apply to the following international treaties (Concordats) with the Holy See:

    (a) Concordato lateranense of 11 February 1929 between Italy and the Holy See, modified by the agreement, with additional Protocol signed in Rome on 18 February 1984;

    (b) Agreement between the Holy See and Spain on legal affairs of 3 January 1979.

  4. Recognition of the decisions provided for in paragraph 2 may, in Italy or in Spain, 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.

Article 41 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;

Page 83

(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 having received an application for divorce or legal separation or for marriage annulment shall refer to the authority of a territorial unit which has received such an application;

(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.

Chapter V Transitional Provisions
Article 42
  1. The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to settlements which have been approved by a court in the course of proceedings after its entry into force.

  2. Judgments given after the date of entry into force of this Regulation in proceedings instituted before that date shall be recognised and enforced in accordance with the provisions of Chapter HI if jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

Chapter VI Final Provisions
Article 43 Review

No later than 1 March 2006, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Regulation, and in particular Articles 36, 39 and 40(2) thereof. The report shall be accompanied if need be by proposals for adaptations.

Article 44 Amendment to Lists of Courts and Redress Procedures
  1. Member States shall notify the Commission of the texts amending the lists of courts and redress procedures set out in Annexes I to III. The Commission shall adapt the Annexes concerned accordingly.

  2. The updating or making of technical amendments to the standard forms set out in Annexes IV and V shall be adopted in accordance with the advisory procedure set out in Article 45(2).

Article 45
  1. The Commission shall be assisted by a committee.

  2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468 EC shall apply.

  3. The committee shall adopt its rules of procedure.

Article 46 Entry Into Force

This Regulation shall enter into force on 1 March 2001

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, 29 May 2000.

For the Council

The President

  1. COSTA

Page 84

Annex I

The applications provided for by Article 22 shall be submitted to the following courts:

- in Belgium, the 'tribunal de premiere instance'/'rechtbank van eerste aanleg'/'erstinstanzliches Gericht',

- in Germany:

- in the district of the 'Kammergericht' (Berlin), the 'Familiengericht Pankow/Weissensee',

- in the districts of the remaining 'Oberlandesgerichte' to the 'Familiengericht' located at the seat of the respective 'Oberlandesgericht'

- in Greece, the 'Epheteo'

- in Spain, the 'Juzgado de Primera Instancia',

- in France, the presiding Judge of the 'tribunal de grande instance',

- in Ireland, the High Court,

- in Italy, the 'Corte d'apello',

- in Luxembourg, the presiding Judge of the 'Tribunal d'arrondissement',

- in the Netherlands, the presiding Judge of the 'arrondissementsrechtbank',

- in Austria, the 'Bezirksgericht',

- in Portugal, the 'Tribunal de Comarca' or 'Tribunal de Familia',

- in Finland, the 'karajaoikeus'/'tingsratt',

- in Sweden, the 'Svea hovratt',

- in the United Kingdom:

(a) in England and Wales, the High Court of Justice;

(b) in Scotland, the Court of Session;

(c) in Northern Ireland, the High Court of Justice;

(d) in Gibraltar, the Supreme Court.

Page 85

Annex II

The appeal provided for by Article 26 shall be lodged with the courts listed below:

- in Belgium:

(a) a person applying for a declaration of enforceability may lodge an appeal with the 'cour d'appel' or the 'hof van beroep';

(b) the person against whom enforcement is sought may lodge opposition with the 'tribunal de premiere instance'/'rechtbank van eerste aanleg'/'erstinstanzliches Gericht',

- in Germany, the 'Oberlandesgericht',

- in Greece, the 'Epheteo',

- in Spain, the 'Audiencia Provincial',

- in France, the 'Cour d'appel',

- in Ireland, the High Court,

- in Italy, the 'Corte d'appello',

- Luxembourg, the 'Cour d'appel',

- in the Netherlands:

(a) if the applicant or the respondent who has appeared lodges the appeal: with the 'gerechtshof;

(b) if the respondent who has been granted leave not to appear lodges the appeal: with the 'arrondissementsrecht-bank',

- in Austria, the 'Bezirksgericht',

- in Portugal, the 'Tribunal da Relao',

- in Finland, the 'hovioikeus'/'hovratt',

- in Sweden, the 'Svea hovratt',

- in the United Kingdom:

(a) in England and Wales, the High Court of Justice;

(b) in Scotland, the Court of Session;

(c) in Northern Ireland, the High Court of Justice;

(d) in Gibraltar, the Court of Appeal.

Page 86

Annex III

The appeals provided for by Article 27 may be brought only:

- in Belgium, Greece, Spain, France, Italy, Luxembourg and in the Netherlands, by an appeal in cassation,

- in Germany, by a 'Rechtsbeschwerde',

- in Ireland, by an appeal on a point of law to the Supreme Court,

- in Austria, by a 'Revisionsrekurs',

- in Portugal, by a 'recurso restrito a materia de direito',

- in Finland, by an appeal to 'korkein oikeus'/'hogsta domstolen',

- in Sweden, by an appeal to the 'Hogsta domstolen',

- in the United Kingdom, by a single further appeal on a point of law.

Page 87

Annex IV

Certificate referred to in Article 33 concerning judgments in matrimonial matters

  1. Country of origin

  2. Court or authority issuing the certificate

    2.1. Name

    2.2. Address

    2.3. Tel./fax/E-mail

  3. Marriage

    3.1. Wife

    3.1.1. Full name

    3.1.2. Country and place of birth

    3.1.3. Date of birth

    3.2. Husband

    3.2.1. Full Name

    3.2.2. Country and place of birth

    3.2.3. Date of birth

    3.3. Country, place (where available) and date of marriage

    3.3.1. Country of marriage

    3.3.2. Place of marriage (where available)

    3.3.3. Date of marriage

  4. Court which delivered the judgment

    4.1. Name of Court

    4.2. Place of Court

  5. Judgment

    5.1. Date

    Page 88

    5.2. Reference number

    5.3. Type of judgment

    5.3.1. Divorce

    5.3.2. Marriage annulment

    5.3.3. Legal separation

    5.4. Was the judgment given in default of appearance?

    5.4.1. no

    5.4.2. yes54

  6. Names of parties to whom legal aid has been granted

  7. Is the judgment subject to further appeal under the law of the Member State of origin?

    7.1. No

    7.2. Yes

  8. Date of legal effect in the Member State where the judgment was given

    8.1. Divorce

    8.2. Legal separation

    Done at................, date................

    Signature and/or stamp

    Page 89

Annex V

Certificate referred to in Article 33 concerning judgments on parental responsibility

  1. Country of origin

  2. Court or authority issuing the certificate

    2.1. Name

    2.2. Address

    2.3. Tel/Fax/E-mail

  3. Parents

    3.1. Mother

    3.1.1. Full name

    3.2.2. Date and place of birth

    3.2. Father

    3.2.1. Full name

    3.2.2. Date and place of birth

  4. Court which delivered the judgment

    4.1. Name of Court

    4.2. Place of Court

  5. Judgment

    5.1. Date

    5.2. Reference number

    5.3. Was the judgment given in default of appearance?

    5.3.1. No

    5.3.2. Yes55

    Page 90

  6. Children who are covered by the judgment 56

    6.1. Full name and date of birth

    6.2. Full name and date of birth

    6.3. Full name and date of birth

    6.4. Full name and date of birth

  7. Names of parties to whom legal aid has been granted

  8. Attestation of enforceability and service

    8.1. Is the judgment enforceable according to the law of the Member State of origin?

    8.1.1. Yes

    8.1.2. No

    8.2. Has the judgment been served on the party against whom enforcement is sought?

    8.2.1. Yes

    8.2.1.1. Full name of the party

    8.2.1.2. Date of service

    8.2.2. No

    Done at......................, date...............

    Signature and/or stamp

    --------------------------------------

    [1] Convention and explanatory report by A. Borras (OJ C 221, 16.7.1998). That report is referred to in the footnote to recital 6 of Regulation (EC) No 1347/2000 and in the footnote to recital 3 of Regulation (EC) No 2201/2003. Community regulations cannot be accompanied by an explanatory report. However, the explanatory report on the 1998 convention is still relevant, as its extensive use by commentators on the regulation shows, provided that two limitations are borne in mind. The first relates to the content of the regulations themselves in that the report is valid only in so far as no amendments have been made to the corresponding convention provisions. The second relates to the unifying function of the Court of Justice in the interpretation and application of Community law, since assertions contained in the report are valid only if the Court has not ruled differently. It should also be pointed out that the opinions expressed today do not necessarily coincide with the content of that report since it had to be approved by the working party which prepared the convention.

    [2] OJ C 247, 31.8.1999.

    [3] On account of its relationship with the 1968 Brussels Convention and Regulation (EC) No 44/2001, known as the 'Brussels I Convention' and the 'Brussels I Regulation', respectively.

    [4] OJ L 160, 30.6.2000. On the background to the regulation, see P. Beaumont and G. Moir, 'Brussels Convention II: A new private international law instrument in family matters for the European Union or the European Community?', European Law Review, 1995, pp. 268 et seq.; H. Gaudemet-Tallon, 'La Convention de "Bruxelles II": Convention concernant la competence, la reconnaissance et l'execution des decisions en matire matrimoniale', Travaux du Comite franais de droit international priv, 1999; M. Jantera-Jareborg, 'Marriage dissolution in an integrated Europe', Yearbook of Private International Law, 1, 1999; B. Sturlese, 'L'extension du systeme de la Convention de Bruxelles au droit de la famille', Travaux du Comitefranfais de droit international prive, 1995-96, pp. 49 et seq.; P. de Vareilles-Sommieres, 'La libre circulation des jugements rendus en matire matrimoniale en Europe', Gazette du Palais, 17-18 October 1999, pp. 15 et seq.

    [5] The current state of preliminary work is to be found at http://europa.eu. int/comm/justice_ home/doc_centre/civil/studies/ doc/ divorce_matters_en.pdf

    [6] OJ C 234, 15.8.2000.

    [7] OJ C 203 E, 27.8.2002.

    [8] Article 71 of the regulation (OJ L 338, 23.12.2003).

    [9] OJ L 338, 23.12.2003, p. 28.

    [10] This group's function is to study points of convergence between private international law and European Community law. For proceedings since 1991, see notes by J. D. Gonzalez Campos and A. Borras in Revista Espanola deDerecho internacional. The group's website may also be consulted (http://www.drt.ucl.ac.be/gedip).

    [11] C. Kohler, 'L'article 220 du Traite CEE et les conflits de juridiction en matire de relations familiales: premieres reflexions', Rivista di Diritto internazionale private e processuale, 2, 1992, pp. 221 et seq. Subsequently, A. Borras, 'Luz verde a la extension del Convenio de Bruselas a cuestiones de familia', Revista Espanola de Derecho international, 2, 1994, pp. 906 et seq.

    [12] Chapter III, Section IVA, of the explanatory report on the 1968 Brussels Convention, explaining the reasons for the exclusion of certain matters under Article 1(2).

    [13] We should emphasise that the reference is only to the 'marriage bond' and the text deliberately refrains from specifying whether it is a traditional marriage or a homosexual union, as already permitted in some Member States; this runs counter to some interpretations, such as that of H. Gaudemet-Tallon, 'Le reglement n 1347/2000 du Conseil du 29 mai 2000: competence, reconnaissance et execution des decisions en matire matrimoniale et en matire de responsabilite parentales des enfants communs', Journal de droit international, 2001, p. 387, which would confine it to 'traditional' marriage. Doubts are expressed in J. Y. Carlier, S. Francq and J. L. Van Boxstael, 'Le reglement de Bruxelles II - Competence, reconnaissance et execution en matire matrimoniale et en matire de responsabilite parentale', Journal des tribunaux -Droit europen, No 78, 2001. There is deliberately no attempt to be more specific either in the text itself or in the Borras report.

    [14] The term 'proceedings' includes administrative divorces which occur in some Member States. It is, however, doubtful if it includes the so-called 'divorce by contract' referred to by J. Carrascosa, 'Cuestiones polemicas en el Reglamento 1347/2000', in A. L. Calvo and J. L. Iriarte (eds), Globalizacin y familia, Madrid, 2001, p. 228.

    [15] Point 22 of the Borras report. Recital 10 is described as 'sibylline' by B. Ancel and H. Muir Watt, 'La desunion europenne: le reglement dit "Bruxelles I"', Revue critique de droit international priv, 2001, p. 408. Recital 8 of the Brussels IIa Regulation states that the regulation does not deal with 'issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures'.

    [16] J.Y. Carlier et al.,'Le reglement de Bruxelles II - Competence, reconnaissance et execution en matire matrimoniale et en matire de responsabilite parentale', op cit.

    [17] Point 14.

    [18] It should be noted here that the rapporteur did define parental responsibility in the draft explanatory report but that the definition was rejected by the working party and, consequently, appears neither in the explanatory report nor in the text of the convention. It was proposed in point 24 of the draft report that 'the concept [of parental responsibility] should include both child custody and contact rights. Reference will also have to be made both to the exercise of parental responsibility and to total or partial withdrawal: the award of custody will not, however, be affected, bearing in mind the discussions on Article 3 of the 1996 Hague Convention. Finally, the term should also include any measures taken by the public authorities regarding the child. On the other hand, it does not affect maintenance obligations (in that connection see Article 1(2) and Article 4 of the 1996 Hague Convention).'

    [19] OJ L 174, 27.6.2001, p. 1.

    [20] A. Borras, 'Competencia judicial, reconocimiento y ejecucion de decisiones en materia matrimonial: el Reglamento 1347/ 2000, de 29 de mayo ("Bruselas II")', Revista Juridica de Catalunya, 2, 2003, pp. 361-386.

    [21] Points 44 and 45 of the Borras report and recital 12 of the regulation. More fully, M. A. Sanchez, 'Procesos civiles de divorcio en la UE: el nuevo Reglamento comunitario 1347/2000, repercusion en nuestro actual sistema', in A. L. Calvo and J. L. Iriarte (eds), Globalizacin y familia, Madrid, 2001. H. Gaudemet-Tallon, 'Le reglement n 1347/2000 du Conseil du 29 mai 2000: competence, reconnaissance et execution des decisions en matire matrimoniale et en matire de responsabilite parentales des enfants communs', op cit, p. 395, would have preferred the list of forums to be 'exhaustive' precisely to avoid that distinction.

    [22] That can be interpreted as a demonstration of one of the characteristics of current private international law, to wit greater flexibility. See J. D. Gonzalez Campos, 'Diversification, specialisation, flexibilisation et materialisation des regies de droit international prive - Cours general', Collected Courses, Vol. 287, 2000, in particular, pp. 238-239. Nevertheless, that result was achieved, as J. Pirrung puts it in 'Unification en matire familiale: la Convention de l'Union Europeenne sur la reconnaissance des divorces et la question de nouveaux travaux d'Unidroit', Revue de droit uniforme. No 2-3, 1998, p. 633, by moving from 'compromise to compromise'.

    [23] B. Ancel and H. Muir Watt, 'La desunion europeenne: le reglement dit "Bruxelles I'", op cit., pp. 415-416, who would have preferred a check on indirect jurisdiction, taking the view that it was the large number of grounds that made it necessary to introduce the 'sophisticated corrective mechanism' for lis pendens (Article 11). See also J. Carrascosa, 'Cuestiones polemicas en el Reglamento 1347/2000', op cit., pp. 230-231.

    [24] Consider, for example, the case of a married couple where the husband is Spanish, works in Spain and spends part of the week in Spain and the other part of the week in France, where his wife, a non-Community national, resides with the children of both spouses.

    [25] Conclusion disputed by A. Bonomi, 'II Regolamento comunitario sulla competenza e sul riconoscimento in materia matrimoniale e di potesta dei genitori', Rivista diDiritto internazionale, 2, 2001, p. 318, and by H. Tagaras, 'Questions speciales relatives a l'unification communautaire du droit international prive de la famille (reglement 1347/2000)', Melanges en hommage a Jean-Victor Louis, Vol. 1, Brussels, 2003, pp. 460-462.

    [26] For the discussion of the scope of Article 8 (now Article 7) and its relationship with the provision in Article 7 (now Article 6), see J. Y. Carlier et al., 'Le reglement de Bruxelles II - Competence, reconnaissance et execution en matire matrimoniale et en matire de responsabilite parentale', op cit.

    [27] In point 47. Article 8 (now Article 7) thus creates a genuine 'European citizenship privilege', as described by S. Drouet, L'avnement de 'Bruxelles II' Memoire de DEA, Universite de Nantes, 1999, pp. 118-119. For R. Baratta, 'Separazione e divorzio nel DIPr italiano', Cap. XXII del vol. II del Trattato diDiritto di famiglia (a cura di G. Ferrando - M. Fortino - F Ruscello), Milan, 2002, p. 1590, Article 8 can be seen as a manifestation of the 'Eurochauvinism' with which American authors such as Juenger and von Mehren have already taxed the 1968 Brussels Convention.

    [28] On that issue, the content of the most extensive work on the subject nevertheless remains entirely valid for the moment: A. Borras, 'La proteccion de los hijos comunes con motivo de la crisis matrimonial en el Convenio de 28 de mayo de 1998 sobre la competencia judicial, el reconocimiento y la ejecucion de resoluciones en materia matrimonial', Disyuntivas en los pleitos matnmoniales de separacin y divorcio, Asociacion Espanola de Abogados de Familia, Madrid, 2000, pp. 299-325.

    [29] Points 25 and 26 of the Borras report.

    [30] See A. Borras, 'Les clauses de deconnexion et le droit international prive communautaire', Festschrift E. Jayme, Heidelberg, in press.

    [31] See points 52 to 60 of the Lagarde report on the convention.

    [32] Judgments of 17 November 1998 in Case C-391/9S Van Uden [1998] ECR I-7091 and of 27 April 1999 in Case C-99/96 Mietz [1999] ECR I-2277.

    [33] As it is termed in the explanatory report on the 1998 convention (point 54). For the importance of the rule, see J. Pirrung, 'Unification en matire familiale: la Convention de l'Union Europeenne sur la reconnaissance des divorces et la question de nouveaux travaux d'Unidroit', op cit, p. 635.

    [34] It is therefore hardly surprising that legal theorists have raised many doubts as to this provision. For instance, B. Ancel and H. Muir Watt, 'La desunion europeenne: le reglement dit "Bruxelles I"', op cit, pp. 428-431, H. Tagaras, 'Questions speciales relatives a l'unification communautaire du droit international prive de la famille (reglement 1347/2000)', op cit., pp. 462-464. In any event, H. Gaudemet-Tallon, 'Le reglement n 1347/2000 du Conseil du 29 mai 2000: competence, reconnaissance et execution des decisions en matire matrimoniale et en matire de responsabilite parentales des enfants communs', op cit., pp. 399-405, stresses the effort the article represents and the ingenious nature of the solution.

    [35] Case C-163/95 Elsbeth Freifrau von Morn v Kevin Cinnamond [1997] ECR I-5451.

    [36] For the requirement that the decision be positive, see point 60 of the Borras report; against this interpretation, see H. Tagaras, 'Question speciales relatives a runification communautaire du droit international prive de la famille (reglement 1347/2000)', op cit., p. 466. B. Ancel and H. Muir Watt point out in 'La desunion europeenne: le reglement dit "Bruxelles I"', op cit., p. 436, that this solution was adopted in response to Scandinavian pressure.

    [37] A. Bonomi,'II Regolamento comunitario sulla competenza e sul riconoscimento in materia matrimoniale e di potesta dei genitori', op cit., pp. 338-339.

    [38] In principle, necessary only for measures relating to parental responsibility. On the procedure for recognition and enforcement, see R. Wagner, 'Die Anerkennung und Vollstreckung von Entscheidungen nach der Brussel II-Verordnung', IPRax, 2, 2001, pp. 73-86.

    [39] R. Baratta, 'Separazione e divorzio nel DIPr italiano', op cit, 2002, p. 1586, note 171.

    [40] In Pellegrini v Italy. In that connection, see M. Guzman, 'Novedades en materia de reconocimiento de resoluciones eclesiasticas sobre nulidad matrimonial', Aranzadi civil, No 13, 2002, pp. 15-18.

    [41] Judgment of 27 June 2002 of the Spanish Supreme Court, Actualidad Juridica Aranzadi, No 540, 11 July 2002, pp. 1-6. In that connection, see R. M. Moliner, 'La rebeldia y el reconocimiento de efectos civiles a las sentencias canonicas de nulidad (a proposito de la Sentencia del Tribunal Supremo de 27 de junio de 2002)', Boletn de Informacion del Ministerio de justicia, No 1927, 15 October 2002, pp. 3113-3132, although it does not coincide with what is stated in the note referred to.

    [42] Now Article 34(2) of Regulation (EC) No 44/2001.

    [43] That was what happened in the initial Spanish version of Article 34(2) of Regulation (EC) No 44/2001, which, unlike the other language versions, had 'de forma regular' ('duly'). As a result, a corrigendum was published in Official Journal L 176 of 5 July 2002. In that connection, see P. Jimenez Blanco, 'La redaccion erronea del art. 34.2) de la version espanola del Reglamento (CE) numero 44/2001, relativo a la competencia judicial, el reconocimiento y la ejecucion de resoluciones judiciales en materia civil y mercantil', Revista Espanola de Derecho International, 1 and 2, 2001, pp. 742-745.

    [44] Examples open to question are given in point 71 of the Borras report and are discussed elsewhere, as in B. Ancel and H. Muir Watt, 'La desunion europeenne: le reglement dit "Bruxelles I"', op cit, pp. 447-449.

    [45] For instance, Annex I to Council Regulation (EC) No 1347/2000 was amended for the Netherlands by Commission Regulation (EC) No 1185/2002 of 1 July 2002 (OJ L 173, 3.7.2002).

    [46] Although here too there is scope for building on the work already done, in line with the Tampere mandate and in close cooperation with the Hague Conference on Private International Law, which is preparing an ambitious text on the subject.

    [47] OJ C 247, 31.8.1999, p. 1.

    [48] Opinion delivered on 17 November 1999 (not yet published in the Official Journal).

    [49] OJ C 368, 20.12.1999, p. 23.

    [50] OJ C 221, 16.7.1998; p. 1. On the same day as the Convention was drawn up, the Council took note of the explanatory report to the Convention, as prepared by Prof. Alegria Borras. This explanatory report is set out on page 27 of the aforementioned Official Journal.

    [51] OJ L 184, 17.7.1999, p. 23.

    [52] Seep. 37 of this Official Journal.

    [53] None of these Member States made this statement when the Regulation was adopted.

    [54] Documents referred to in Article 32(2) must be attached.

    [55] Documents referred to in Article 32(2) must be attached.

    [56] If more than four children are covered, use a second form.