The Brussels II Regulation 2003

Common provisions for determining jurisdiction

Jurisdiction over matters of divorce, legal separation, marriage annulment, parental responsibility and child abduction.

1. actions to accomplish a divorce, legal separation or marriage annulment;
2. actions on the basis of parental responsibility;
3. actions after a child has been abducted;
4. actions to protect the property of the child, provided the aim is to protect the child itself.

‘Bearing in mind the major differences between internal regulations in the Member States and the interplay of choice-of-law rules applicable, it is easy to imagine that the fact that the grounds of jurisdiction set out in [Article 3 BR II 2003] are alternatives may lead some spouses to attempt to make their application in matrimonial matters before the courts of a State which, by virtue of its choice-of-law rules, applies the legislation most favourable to their interests. For that reason, the court first seised must examine its jurisdiction, which might not happen if the issue were discussed in that Member State only as an exception’ (Borras (1998) C 221/45)

‘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’ (Article 18(1) BR II 2003).

1. an obligation on the court to stay proceedings, not merely an option;
2. the respondent’s rights of defence to be examined by the court, both as to whether he has been able to receive the document ‘in sufficient time to enable him to arrange for his defence’ and as to whether ‘all necessary steps have been taken to this end’.

‘The recent signing of the Convention of 26 May 1997 on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters has led to a provision that, once it has entered into force, Article 19 thereof will be applied instead of the provisions in paragraph 1. Bearing in mind the possibility of the early application of the 1997 Convention, there will be a gradual substitution of the European Community Convention for the Hague Convention and there will not, therefore, be a general entry into force. As Articles 15 and 16 of the Hague Convention are reproduced in the 1997 Convention the change of Convention applicable will not entail any significant changes’ (Borras (1998) C 221/45).

‘The difference in rules between the Member States also affects the very notion of lis pendens. The notion is more restricted in some States (France, Spain, Italy and Portugal) requiring the same subject-matter, the same cause of action and the same parties, and broader in others which require only the same cause of action and the same parties. The lis pendens mechanism is designed to avoid parallel actions and consequently the possibility of irreconcilable judgments on the same issues and the objective was to provide a rule which, on the basis of the basic principle of prior temporis, could provide a solution for the various possibilities in family law, which differ from those in property law. The traditional lis pendens arrangement did not solve all the problems and there was therefore a need to find a new wording which would achieve the objective desired. After lengthy discussion, it was the Luxembourg Presidency which proposed the text finally accepted by the Member States’ (Borras (1998) C 221/46).

‘53. Paragraph 1 contains the traditional lis pendens rule, that is to say the prior temporis rule applicable to all proceedings covered by the [Regulation], provided the subject-matter and cause of action are the same between the same parties. To avoid the risk of negative conflict of jurisdiction, it is stipulated that 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’ (Borras (1998) C 221/46).

‘Once a court has been seised pursuant to Article 3 of the Regulation and declared itself competent, courts of other Member States are no longer competent and must dismiss any subsequent application. The aim of the “lis pendens” rule is to ensure legal certainty, avoid parallel actions and the possibility of irreconcilable judgments.
The wording of Article 19(1) has been modified slightly compared to Article 11(1) and (2) of the Brussels II Regulation [2001]. The change was introduced to simplify the text without changing the substance.
Article 19(1) covers two situations:
(a) Proceedings relating to the same subject-matter and cause of action are brought before courts of different Member States and;
(b) Proceedings which do not relate to the same cause of action, but which are
“dependent actions” are brought before courts of different Member States (Practice Guide 2005, p. 49).

‘Article 19(2) regulates the situation where proceedings relating to parental responsibility are brought in different Member States concerning:
- the same child and
- the same cause of action
In that situation, Article 19(2) stipulates that the court first seised is, in principle,
competent. The court second seised has to stay its proceedings and wait for the other court to decide whether it has jurisdiction. If the first court considers itself competent, the other court must decline jurisdiction. The second court may only continue its proceedings if the first court comes to the conclusion that it does not have jurisdiction or if the first court decides to transfer the case pursuant to Article 15.
It is expected that the lis pendens mechanism will be rarely used in proceedings relating to parental responsibility since the child is usually habitually resident in only one Member State in which the courts have jurisdiction according to the general rule of jurisdiction (Article 8).
The Regulation provides for another way of avoiding potential conflicts of jurisdiction by allowing a transfer of the case. Hence, Article 15 allows a court, as an exception and under certain conditions, to transfer a case, or a part thereof, to another court (see chapter III)’ (Practice Guide 2005, p. 22).

‘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’ (Article 19(3) BR II 2003).

’57 (…)( That would be the case, for instance, if an application for divorce were presented in Sweden and an application for annulment in Austria: the Austrian court would have to decline jurisdiction even though Swedish law makes no provision for annulment. Once the divorce ruling was final in Sweden, however, the interested party could apply to a court in Austria, in order to ensure that those effects of the divorce which would be null under Austrian law would have the necessary effects ex tunc as opposed to divorce which has only effects ex nunc, bearing in mind, moreover, that the recognition of the scope of this Convention is restricted to changes in civil status (see paragraph 64). The same principle would apply to the reverse situation. That is to say that the [Regulation] will not prevent an Austrian judgment on annulment from being the object, in Sweden, of a subsequent court judgment to the effect that the annulment will have the effect of a divorce ruling in Sweden. The same problems would not, however, arise in relation to separation since, although Swedish law does not provide for it, divorce produces effects which are more extensive than and superimposed on the effects of separation’ (Borras (1998) C 221/47)

‘As regards the rule on provisional and protective measures, it must be observed that it is not subject to the jurisdictional rules of the Regulation because it refers to proceedings encountered within its scope and is based on national law jurisdiction. The provision makes it clear that such measures may be adopted in one State even though the court of another State has jurisdiction to hear the case. Moreover, this Article applies only to urgent cases.
As to the content of the provision, it should be noted that although provisional and protective measures may be adopted in connection with proceedings within the scope of the Regulation and are applicable only in urgent cases, they relate to both persons and to property and therefore touch on matters not covered by the Regulation, in the case of actions provided for in national rules. The measures to be adopted are very broad since they can affect both persons and assets in the State in which they are adopted, something which is very necessary in matrimonial disputes. The Regulation says nothing about the type of measures or about their connection with the matrimonial proceedings. These measures, accordingly, affect even matters that do not come within the scope of the Regulation. This is a rule which enshrines national law jurisdiction, thereby derogating from the rules laid down in the first part of the Regulation. The provision makes it clear that such measures may be adopted in one State even though the court of another State has jurisdiction to hear the case. The measures will, of course, cease to apply once the court having jurisdiction gives a judgment on the basis of one of the grounds of jurisdiction set out in the Regulation and that judgment is recognised (or enforced) under the Regulation. Other measures relating to matters excluded from the scope of the Regulation will continue to apply until appropriate judgments are given by a court with jurisdiction for, for example, marriage contracts’ (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999 and Borras (1998) C 221/47-48)