The Brussels II Regulation 2003 Recognition and enforcement Chapter III, Section 1 of the Brussels II Regulation 2003 deals with the recognition of judgements of the courts of a Member State in one of the other Member States. It applies to judgments which have established a divorce, legal separation or marriage annulment as well as to judgments on matters of parental responsibility, including those concerning rights of access and matters of child abduction. The general principle is that judgments given in one Member State are automatically recognized by the authorities and courts of another Member State, without the need to start a legal procedure there in order to get this result. The authorities of another Member State can only refuse the recognition of such judgments on specific grounds, mentioned in Article 22 and Article 23 BR II 2003. If a national or local authority refuses the recognition of a judgment of the court of the Member State of origin, then any interested party has the right to ask the court of the Member State where recognition is sought, to officially recognize this judgment. Such a decision is binding to all authorities of that Member State. On the other hand, if the national or local authorities of another Member State have recognized the judgment, any interested party can also ask the court of the Member State whose authorities have recognized the judgment, to undo this recognition and to declare that the judgment of the court of the Member State of origin is not to be recognized at all.
Section 2 of Chapter III of the Brussels II Regulation 2003 deals with the enforcement of judgments in other Member States. With regard to the possibility to request for the enforcement of a judgment of the court of the Member State of origin in another Member State a distinction has to be made between, on the one hand, judgments which have established a divorce, legal separation or marriage annulment and, on the other hand, judgments on matters of parental responsibility. The Brussels II Regulation 2003 does not regulate the enforcement of judgments which have established a divorce, legal separation or a marriage annulment. Its scope is limited to the question which Member State has jurisdiction over such matters and to the procedure to get these judgments recognized in other Member States. A judgment which has established a divorce, legal separation or marriage annulment can’t actually be enforced, since it has no other legal effects than that the marriage is ended. But it can be necessary to get it recognized in another Member State, this to be able to start on that base other legal proceedings there, for instance about the division of matrimonial community property or the observance of maintenance obligations, child support, arrangements concerning rights of parental access et cetera. While, for matrimonial matters, recognition procedures are sufficient, in view of the limited scope of the Brussels II Regulation 2003 (restricted to the end of the marriage only) and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses. For this reason section 2 of Chapter III of the Brussels II Regulation 2003 includes a few provisions for the execution of foreign judgments on matters of parental responsibility. Enforcement can be achieved through a so-called ‘exequatur procedure’, in which the court of the Member State where enforcement is sought, can only review if basic formalities and conditions are met, but not if the judgment of the court of the Member State of origin is to its substance or outcome correct. As far as it concerns the enforcement of judgments on access rights and the return of an abducted child, there is, besides the exequatur procedure, another possibility to achieve the wanted result of enforceability of the judgment in the other Member State. This procedure, however, can only be used if the court of the Member State of origin has added a specific certificate to its judgment, which makes it directly enforceable in every other Member State. One has to be aware that the recognition and enforcement procedure itself is not governed by the Brussels II Regulation 2003, but by national law. Yet it is essential that national authorities apply rules which secure efficient and speedy enforcement of decisions issued under the Regulation so as not to undermine its objectives. This applies in particular with regard to access rights and the return of the child following an abduction for which the exequatur procedure is no longer the only way to achieve enforceability in order to speed up the procedure.
It has not been necessary to include in the Brussels II Regulation 2003 an equivalent of Article 16 of Council Regulation (EC) No 1347/2000 (Brussels II 2001) on agreements with third countries. This is because pre-existing agreements are already protected in accordance with Article 307 of the EC-Treaty. As regards future agreements, which can only be concluded by the Community to the extent they may affect the Regulation or alter its scope in accordance with the AETR case law, these would take precedence over the Brussels II Regulation 2003 even in the absence of a specific provision to this effect.
A judgment which has established a divorce, legal separation or marriage annulment or which contains a decision on matters of parental responsibility, like the right to have assess to a child, is of course recognized and enforceable as such in the State which court has given this judgment. Sometimes it is necessary to get these judgments also recognized as such in another Member State of the European Union. The principle rule with regard to recognition is set in Article 21(1) BR II 2003. It indicates that ‘a judgment given in a Member State, shall be recognised in the other Member States without any special procedure being required’. In particular no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State (Article 21(2) BR II 2003. It should be noted that the judgment of the court of origin must be a final one against which no further appeal lies in the Member State of origin. Otherwise a request to recognize a judgement at the court of another Member State is not possible (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). Paragraph 1 of Article 21 also provides that authentic instruments and court settlements shall be recognized under the same conditions as judgments. In addition, the provisions on recognition (and enforcement) also cover costs and expenses.
The national and local governments (Municipality’s registrar's office) and administrative services (Tax Authorities, Aliens Police Registration Department) of another Member State thus automatically have to recognize a judgment of the court of another Member State on matters of divorce, legal separation, marriage annulment and parental responsibility. No exequatur procedure or other legal proceeding has to be started to get this result. Nevertheless the authorities and administration services have the possibility to refuse the recognition of such a judgment, but only on specific grounds, which are mentioned in the Brussels II Regulation 2003. These rules make a distinction between the recognition of judgments which have established a divorce, legal separation or marriage annulment and those one matters of parental responsibility, irrespective of the fact if the judgment on a matter of parental responsibility is given by a court of the Member State of origin on a separate request or as one of the decisions in a legal proceeding to get a divorce, legal separation or marriage annulment. Article 22 BR II 2003 sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while Article 23 BR II 2003 contains grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings or separately. The reason for the division 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 division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999 and Borras (1998) C 221/50))
The national and local authorities (such as the Municipality’s registrar's office) and administrative services (Tax Authorities, Aliens Police Registration Department) of a Member State still may and even have to verify under the Brussels II Regulation 2003 if the judgment of the court of another Member State is valid and has to be recognized as such. The same applies to the courts of the Member State where recognition is sought, for instance at an appeal of an interested party against a decision of the national of local authority to refuse or to grant the requested recognition. It is also conceivable that during an already pending case, for instance over a claim to observe a maintenance obligation, to respect access rights or to divide the matrimonial community property of the former spouses, the court is indirectly confronted with a statement or defence of one of the parties that a judgment of the court of another Member State relating to a divorce, legal separation, marriage annulment or a matter of parental responsibility is not valid and therefore can’t be recognized as such or, reversed, is valid, so that the end of the marriage has to be recognized indeed. Where the recognition of a judgment is raised in this way as an incidental question in a court of a Member State, that court may determine that issue, so that it is not necessary to file this question as a separate lawsuit or request at the court which is appointed by the Member States to rule over matters of recognition of judgments coming from other Member States. The Brussels II Regulation 2003 takes the view that the Member State in which recognition is sought, must examine the grounds of jurisdiction on the basis of which the judgment in the Member State of origin has been adopted. But it encloses strict rules to what extent the concerning authorities and courts are entitled to determine whether a judgment of the court of another Member State has to be recognized or not. The authorities and courts of the Member State where recognition is sought, are subject to the following limitations in the matter.
The authorities or court of the Member State in which recognition is sought may not review the jurisdiction of the court of origin nor may it apply the test of public policy to the rules relating to jurisdiction set out in Articles 2 to 8. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999) The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts or grounds as the Member State of origin. This provision is to be seen in conjunction with Article 22 point (a) BR II 2003. It is designed to meet the concerns of States with more tolerant internal provisions on divorce who fear that the judgments given by their courts might not be recognised in other Member States because they are based on grounds unknown in the legislation of the Member States in which recognition is sought. The provision therefore limits indiscriminate use of public policy (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). An example might be legal separation as a basis for divorce: if in the State of origin divorce can be granted after a separation of two years, an incorrect interpretation of the public policy of the State in which recognition is sought, where the law requires five years of separation, could result in the refusal of recognition. Under no circumstances may a judgment be reviewed as to its substance. This is the classic prohibition on review as to substance at the time of recognition (or enforcement). It is a necessary rule in order not to subvert the meaning of the exequatur procedure, which does not mean allowing the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin. The object of the provision is to prevent the measures from being reviewed in the exequatur procedure, although it may in no case lead to their being set in stone. Although the basic principle is that the Member State in which recognition is sought may not review the original judgment, a change in circumstances, however, may lead to a need for revision of the protective measures, as always happens when we are dealing with situations which, despite having a degree of permanence in time, may need modification, which would be the responsibility of the competent authority regarding parental responsibility. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999) In that sense, for instance, Article 27 of the 1996 Hague Convention makes it clear that the prohibition on review as to substance does not prevent such review as is necessary of the protective measures adopted. In this case too, the provision in this Article must be understood as being without prejudice to the adoption by the competent authority of a new ruling on parental responsibility when a change in circumstances occurs at a later stage (Borras (1998) C 221/53). With due observance of the above limitations, the authorities and courts of the Member State where recognition is sought, can decide that a judgment of the court of another Member State is not to be recognized, but only on specific grounds, which are laid down in Article 22 (grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment) and Article 23 (grounds of non-recognition of judgments relating to parental responsibility). Otherwise they are compelled to recognize the judgment of the courts of other Member States on matters which fall under the scope of the Brussels II Regulation 2003.
The grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment are laid down in Article 22 BR II 2003. A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised:
In line with normal practice, the first ground of non-recognition of judgments relating to a divorce, legal separation or marriage annulment is the fact that it is manifestly contrary to public policy in the State in which recognition is sought. The Member States were extremely sensitive on this issue on account of the major discrepancies between their laws on divorce. Those Member States in which dissolution of the marriage bond is easiest feared that their judgements may not be recognised in Member States with more stringent rules. To provide adequate guarantees for both groups of States, a system has been established whereby, on the one hand, non-recognition on grounds that recognition is manifestly contrary to the public policy of the State in which recognition is sought, is retained, and, on the other hand, other provisions stipulate that recognition may not be refused on the grounds that divorce, legal separation or marriage annulment would not be allowed on the same facts. So it needs to be borne in mind, too, that Article 26 of the Brussels II Regulation 2003 prevents a judgment being reviewed as to its substance, Article 25 prohibits non-recognition of a foreign judgment 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 and Article 24 states that the test of public policy may not be applied to the rules relating to jurisdiction. At the time of recognition, the court having jurisdiction must examine the judgment given in the State of origin in the light of the provisions referred to in the preceding paragraph. That solution is based on the arrangement under the 1970 Hague Convention on the Recognition of Divorces and Legal Separations to which some Member States are party (Borras (1998) C 221/51. Paragraph (b) includes the ground of non-recognition which gave rise to the highest number of cases of non-recognition under the 1968 Brussels Convention (Article 27(2)) and therefore to the largest number of problems and questions put to the Court of Justice in relation to grounds of non-recognition. It is the non-recognition in cases where the judgment was given in default of appearance, if the respondent was not notified properly and in good time to defend himself. The last part of the provision is added to provide that the judgment must be recognised, as is the normal consequence of the proper operation of the Brussels II Regulation 2003, where the respondent has accepted it unequivocally, as for instance by remarrying (Borras (1998) C 221/51). Irreconcilability of the judgment with other judgments is dealt with in two separate provisions, points (c) and (d) of Article 22. In contrast to the provisions of Article 27(5) of the 1968 Brussels Convention, there is no requirement for the objective and the ground to be identical. Point (d) also deals with irreconcilability of the judgment with other judgments. It relates 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: (a) it was given earlier and (b) it fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. An example may clarify the situation to which this provision refers. In non-member State E a separation judgment is given that meets the requirements for recognition in State B. Subsequently, a decision granting the same spouses a divorce is given in Member State C, requesting recognition of that judgment in Member State B. In this situation, the divorce judgment given in Member State C is not irreconcilable with the previous legal separation judgment given in non-member State E and is therefore recognised in Member State B. In the opposite case, that is to say if a divorce judgment is given in non-member State E and subsequently a separation judgment is given in Member State C, Member State B will refuse to recognise Member State C’s judgment on the ground that it is irreconcilable with a divorce judgment given in non-member State E which meets the requirements for recognition in Member State B (Borras (1998) C 221/51-52). If none of the above grounds for non-recognition apply, then the authorities, administrative services and courts of the Member State where recognition is sought, are compelled to recognize the judgment (and its immediate effects) of the court of the Member State of origin by which a divorce, legal separation or marriage annulment is established. This also applies with regard to other questions where the end of the marriage is of importance to make a decision or grant a right.
As mentioned earlier, the Brussels II Regulation 2003 entails separate grounds for non-recognition of judgments relating to parental responsibility because they may have been given by another authority or court of the Member State of origin than that who has given a judgment which has established a divorce, legal separation or marriage annulment, depending on the internal distribution of jurisdiction within the State of origin. Also the intentions and objectives of parental-responsibility proceedings differ from those of matrimonial proceedings (Borras (1998) C 221/50) As a principle a judgment relating to parental responsibility will automatically be recognized by the national and local authorities and services and even by the courts of another Member State, unless one of the grounds of non-recognition in Article 23 BR II 2003 applies. Article 23 covers the grounds of non-recognition of judgments relating to parental responsibility understood in the broad sense and therefore including not only court judgments but also decisions of whatever kind by whatever authority with regard to parental responsibility, whether or not closely connected with a divorce. In addition to the general comment above on the justification for the separation of these grounds of non-recognition from those relating to matrimonial judgments, the grounds included merit some further comment (Borras (1998) C 221/52). A judgment relating to parental responsibility shall not be recognised:
The provision on public policy, which also appears in Article 22 (a) BR II 2003, corresponds exactly to the provision in Article 23(2)(d) of the 1996 Hague Convention, in that it makes it impossible to refuse recognition purely because the judgment is manifestly contrary to public policy and requires that consideration be given to taking the best interests of the child into account as well. As in the 1996 Hague Convention (Article 23(2)(b) and (c)), the grounds of non-recognition include (in points (b) and (d) of Article 23 BR II 2003) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard. The child must be heard in accordance with the rules applicable in the Member State concerned, which must include the rules in the United Nations Convention of 20 November 1989 on the Rights of the Child and in particular Article 12 thereof, which provides: Default of appearance is dealt with in point (c) of Article 23 and the comments on point (b) of Article 22 also apply. The grounds of non-recognition include (in point (d)) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard. See also the comment on point (b). Finally, points (e) and (f) deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-Member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity (Borras (1998) C 221/52). See the comments on point (e). Point (g) of Article 23 BR II 2003 refers to the situation that a child is placed in another Member State and the procedure prescribed in Article 56 BR II 2003 has not been complied with. Where a court having jurisdiction under Articles 8 to 15 BR II 2003 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement. The judgment on placement referred to may be made in the requesting State only if the competent authority of the requested State has consented to the placement. The procedures for consultation or consent are governed by the national law of the requested State. Where the authority having jurisdiction under Articles 8 to 15 BR II 2003 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State. If none of the above grounds for non-recognition apply, then the authorities, administrative services and courts of the Member State where recognition is sought, are compelled to recognize the judgment (and its immediate effects) of the court of the Member State of origin.
The national and local authorities and administrative services of the Member State where recognition is sought, shall recognize the judgment of the court of another Member State, unless one of the grounds of non-recognition of Article 22 and Article 23 BR II 2003 applies. When an authority or public service of a Member State refuses the recognition of a judgment of the court of another Member State, any interested party has the right to appeal against this decision at the court of the Member State where recognition is sought. The same applies to an interested party who doesn’t approve that the authorities or public service have recognized the foreign judgment. He can file a request at the court of the Member State whose authorities have recognized the judgment, to undo this decision. Therefore the recognition or non-recognition of a foreign judgment may be accepted or contested. The concept of an ‘interested party’, as mentioned in Article 21(3) Brussels II Regulation 2003, entitled to apply for a decision as to whether the judgment should or should not be recognised must be interpreted in the broad sense under the national law applicable and may include the public prosecutor or other similar bodies where permitted in the State in which the judgment is to be recognised or contested (Borras (1998) C 221/50). The Brussels II Regulation 2003 states which procedure has to be followed by an interested party who applies for a decision that the judgment of the court of another Member State is to be or is not be recognised. This appeal has to be done in accordance with the procedures provided for in Section 2 of this Chapter with regard to the enforcement of judgments on matters of parental responsibility, therefore by means of a so-called ‘exequatur procedure’. This means that the request for a recognition or non-recognition must be made to the competent court in the Member State in which recognition is sought. All Member States have designated for this purpose specific courts, where such requests can be lodged, which can be found in list 1. This court shall declare, without delay, that the judgment is recognized or not-recognized in that Member State. But at making this decision, it has to observe the Articles 24 to 26 BR II 2003, which imply that the court cannot review the matter of jurisdiction of the court of origin (Article 24), nor may it re-consider matters because its national marital law differs from the national law that was applicable to the case (Article 25). And under no circumstances it may review the judgment to its substance. It can only refuse recognitions on one of the grounds of Article 22 (judgments which have established a divorce, legal separation or marriage annulment) or Article 23 (judgments on matters of parental responsibility).
The seised court, who is asked to rule on a request for a recognition or non-recognition of a judgment coming from another Member State, forms its decision only on the base of the information presented by the applicant. No other parties are involved at this stage of the procedure. Within six weeks the court gives a judgment in which it grants or refuses the request of the applicant to recognize or to deny the recognition of the judgment of the court of the Member State of origin. With respect to this decision all interested parties, thus the applicant and other interested persons who want the judgment to be recognized or not to be recognized, can resort to a superior court of that same Member State to review the decision of the court at first instance. But also the Court of Appeal is not allowed to reconsider the foreign judgment with regard to its substance, nor can it review the jurisdiction of the court of the Member State of origin or compare the outcome to its national matrimonial law. It can only examine if the lower court has ruled on the request in accordance with the criteria set in the Brussels II Regulation 2003 for the recognition of judgments of the courts of other Member States. This means it can only refuse the recognition on one of the specific grounds mentioned in Article 22 and Article 23 BR II 2003. For more information about the exequatur procedure and the possibility to contest the decision of the lower court see the comments to the exequatur procedure for enforcement of judgments on matters of parental responsibility.
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 21(4) BR II 2003). It is for reasons of simplicity that the courts hearing the main case also have jurisdiction to determine recognition of a judgment of incidental form (Borras (1998) C 221/50). So it is not necessary to stay the proceeding and lead the request of question to the court that is designated by this Member State for the purpose to rule about requests of recognition or non-recognition of judgments of other Member States. The court where the issue of recognition is raised as an incidental question, may investigate itself if the judgment of the court of another Member State has to be recognizes or not. Of course it has to respect the same criteria and grounds of non-recognition. It’s judgment on this question is open to an appeal at the superior court which may normally review the other matters of the judgment at first instance. When an ordinary court decides in an incidental question about the recognition of a foreign judgment, then it’s no longer possible to file a request on this matter at another court of the same Member State, not even the one who has been specifically designated for making decisions about the recognition and non-recognition of judgments of the courts of other Member States.
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 (Article 27(1) BR II 2003). 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 (Article 27(2) BR II 2003). This provision must be seen in conjunction with the provisions of Article 21(2) BR II Regulation 2003, providing that automatic recognition and in particular the updating of civil-status records do not require any special procedure if the judgment of the State of origin is one against which no further appeal lies under the law of that Member State. Article 27 allows the court of a Member State in which recognition is sought to stay the proceedings if an ordinary appeal against the judgment has been lodged. For stay of enforcement, see Article 35 BR II Regulation 2003. In the case of judgments given in Ireland or the United Kingdom, provision is made for special features of their national legislation (Borras (1998) C 221/53-54).
The only effect of a judgment which has established a divorce, legal separation or marriage annulment, is the ending of a marriage. It has no immediate effect on maintenance obligations or the division of matrimonial community property, since these matters have to be solved, if need be, through separate legal proceedings. That is why no particular provisions are put down in the Brussels II Regulation 2003 for the right of enforcement of such judgments in other Member States, especially since recognition includes the amendment of civil-status records without any special procedure being required. With regard to judgments on matters of parental responsibility this is different. The nature of these judgments implies that it must be possible to actually get access to the child or even remove it from another Member State. After all, the term ‘parental responsibility' includes, according to Article 2(7) BR II, 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 incorporates all rights of custody and rights of access. The right of custody includes rights and duties relating to the care of the person of a child and in particular the right to determine the child’s place of residence. The right of access includes in particular the right to take a child to a place other than his or her habitual residence for a limited period of time. So the term ‘parental responsibility' encompasses also matters such as guardianship and the placement of a child in a foster family or in institutional care. This definition of ‘parental responsibility’ is broad, since it was felt to be important not to discriminate between children by excluding certain measures and thus leaving certain children and situations outside the scope of the Brussels II Regulation 2003. Hence the term relates to both the person and the property of the child, while a holder of parental responsibility may be either a natural or a legal person. The relevant rights and duties may be acquired by judgment, by operation of law or by an agreement having legal effect. It is further specified that the term includes rights of custody and rights of access. The matters referred to may, in particular, deal with (a) rights of custody and rights of access, (b) guardianship, curatorship and similar institutions, (c) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child, (d) the placement of the child in a foster family or in institutional care and (e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property. Rules for enforcement were regarded to be necessary in relation to the exercise of parental responsibility for a child of both spouses. For this reason Section 2 of Chapter III of the Brussels II Regulation 2003 governs the need for exequatur if a judgment given in one Member State is to be enforced in another. All that is required is that the courts listed decide, on the application of any interested party, on the possibility of enforcement in the Member State in which recognition and enforcement is sought, a possibility which can only be refused on the grounds listed in Article 22 and Article 24 BR II 2003. Section 2 covers all civil proceedings relating to parental responsibility. The enforcement procedure itself is governed by the national law of the Member State of enforcement (Article 47(1) BR II 2003). So the appointed court of the Member State where enforcement is sought, decides whether a declaration of enforceability is appropriate with due observance of the Brussels II Regulation 2003, and in particular of Section 2 and Section 3 of Chapter III of this Regulation. If it gives a declaration of enforceability the applicant is able to execute the judgment of the court of the Member State of origin in the Member State of enforcement, but only in conformity with its national laws concerning the enforcement and execution of judgments. The Brussels II Regulation 2003 plays no part in this matter, but a judgment of another Member State, that is declared enforceable, can’t have less weight in this respect. This is emphasised in Article 47(2) BR II 2003: Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 of Chapter III of the Brussels II Regulation 2003 shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. Nevertheless, with regard to the exercise of rights of access, a distinction must be drawn between decisions on attributing rights of access and decisions on organizing their exercise. In the latter case the courts of the Member State of enforcement should have some leeway to make the necessary practical arrangements, to the extent that these are not foreseen in the original decision and that its essential elements are respected. This is laid down in Article 48 BR II 2003. ‘The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected’ (Article 48(1) BR II 2003). ‘The practical arrangements made pursuant to paragraph 1 shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter’ (Article 48(2) BR II 2003). Exequatur, is a concept specific to the private international law and
refers to the decision by a court authorising the enforcement in that
country of a judgment, arbitral award, authentic instruments or court
settlement given abroad. In order to acquire the right to enforce a judgment
on matters of parental responsibility of the court of one of the Member
States in another Member State, the Brussels II Regulation 2003 has chosen
for a so-called ‘exequatur procedure’. The objective of such
a procedure is only to get a written authorisation of the competent court
of the Member State where recognition and enforcement are sought, to execute
a judgment of a court of another Member State. It is a simple and quick
procedure, since the requested court is not allowed to consider the case
again as to its substance. This is already done by the court of the other
Member State, which previously has given its judgment on this matter.
The court of the Member State of enforcement is bound to the outcome as
documented in the foreign judgment. It can only examine if this judgment
meets certain conditions, which are laid down in Article
22 and Article
23 BR II 2003. If that’s the case, then the court must recognize
the foreign judgment and declare it also enforceable in its own Member
State. The court of the Member State of enforcement is neither allowed
to review the jurisdiction of the court of the Member State of origin
(Article 24 BR II
2003). When the court of the Member State of origin has decided it has
jurisdiction over the matter, then this is a fact, even when the court
of the Member State of enforcement thinks differently. After the request for recognition and enforcement of the foreign judgment is lodged at the court of the Member State where enforcement is sought, the exequatur procedure starts. The requested court examines solely on the basis of the documents and papers which are added to the request of the applicant, if recognition and enforcement of the foreign judgment is in line with the criteria of the Brussels II Regulation 2003. Neither the applicant, nor the person against whom enforcement is sought, nor the child concerned, are heard during this procedure. They cannot present their views to the court at this stage. The court decides therefore of its own motion. It can only refuse the requested recognition and enforcement on limited grounds (Article 21 and Article 23 BR II 2003). In principle within six weeks the requested court must give a judgment in which it recognizes that the foreign judgement can be enforced and executed as an enforceable judgment in its own Member State or in which it refuses the request of the applicant. All interested parties, the applicant and the person against whom enforcement is sought as well as the child concerned, can resort to a superior court of the Member State of enforcement to review this decision of the court at first instance. But also the Court of Appeal is not allowed to reconsider the foreign judgment with regard to its substance, nor can it review the jurisdiction of the court of the Member State of origin. It can only examine if the lower court has ruled on the request for recognition and enforcement in accordance with the criteria set in the Brussels II Regulation 2003 for the recognition and enforcement of judgments of the courts of other Member States.
‘A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there’ (Article 28(1) BR II 2003). Paragraph 2 contains a provision taking account of the particular situation in the United Kingdom. ‘However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom’ (Article 28(2) BR II 2003). This provision governs the need for exequatur if a judgment given in one Member State is to be enforced in another. All that is required is that the courts, listed by the Member States, decide, on the application of any interested party, on the possibility of enforcement in the Member State in which recognition is sought. The purpose of this provision is solely to make it possible to enforce a judgment given in another State in relation to parental responsibility since the procedure for enforcement in the strict sense is governed by each State's internal law. Thus, once exequatur has been obtained in a Member State, that State's internal law will govern the practical measures for enforcement. The various other provisions of Section 2 are intended to establish a procedure common to all the Member States for obtaining exequatur which will replace the relevant provisions in internal legislation or in other Conventions. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999 and Borras (1998) C 221/54).
Article 29 BR II 2003 makes clear where an interested party, who wants to get a declaration of enforcement with effect in another Member State, has to lodge his application. It is divided into two paragraphs: the first governs the type of authority with international jurisdiction for enforcement and the second refers to the court having local jurisdiction within that State. These provisions are applicable to recognition, via Article 21(3) BR II 2003, as well as to enforcement. The intention is to make matters easier for the European citizen, who will know from the beginning which court is to be seised. Paragraph 1 refers to a list of authorities having international jurisdiction. ‘An application for a declaration of enforceability shall be submitted to the court appearing in the list notified by each Member State to the Commission pursuant to Article 68’ (Article 29(1) BR II 2003). Every Member State has appointed a particular court or group of courts where applications for recognition and enforcement can be lodged. In the Netherlands such a request can be lodged before the presiding Judge of any District Court. Paragraph 2 provides that jurisdiction will lie with the local court of the place of the habitual residence of the person against whom enforcement is sought or of the place of habitual residence of any child to whom the application relates. It was noted, however, that there could be situations in which neither the person against whom enforcement was sought nor the child was habitually resident in a Member State. In such cases jurisdiction lies with the local court of the place of enforcement.
Article 30 BR II 2003 and other provisions of Section 2 govern the various aspects of the procedure to be followed for enforcement of judgments. The regulation is based on a procedure at the request of a party which will be the same in all Member States. It is fast and simple. Article 30 BR II 2003 deals with the action to be taken by the applicant. ‘The procedure for making the application shall be governed by the law of the Member State of enforcement’ (Article 30(1) BR II 2003). This means that national legislation must be consulted for the information to appear in the application, the number of copies to be submitted to the court, the authority with which they are to be deposited, the language in which they are to be drawn up and also whether or not a lawyer or any other representative or agent needs to be involved. In the Netherlands all court documents must be translated in Dutch by an official translator, unless it concerns small messages which content is at once clear. An exception is made for documents in proceedings before a court in the province of Friesland. These documents may be drawn up in Frisian. At the District Court, Court of Appeal or the Supreme Court a party must be represented by a solicitor. ‘The applicant must give an address for service within the area of jurisdiction of the court applied to. However, if the law of the Member State of enforcement does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem’ (Article 30 (2) BR II 2003). This provision is of interest both as to the notice of the judgment to the applicant (Article 32 BR II 2003]]) and the appeal against the judgment granting exequatur, which will be contradictory (Article 33 BR II 2003). Finally, paragraph 3 of Article 30 requires that the documents referred to in Article 37 and Article 39 BR II 2003 be attached to the application. It concerns a copy of the judgment which satisfies the conditions necessary to establish its authenticity and the certificate referred to in Article 39, which is issued by the court of the Member State of origin, which has also given the judgment. To begin with, paragraph 1 of Article 37 BR II 2003 refers to the documents which must be produced in any event by a party seeking or contesting recognition or applying for enforcement of a judgment. All enforcement treaties require a copy of the judgment which satisfies the conditions necessary to establish its authenticity in accordance with the locus regit actum rule, that is to say the law of the place in which the judgment was given. Where appropriate, a document must also be produced showing that the applicant is in receipt of legal aid in the State of origin (Borras (1998) C 221/57). In addition, in the case of a judgment given in default (non-appearance of the defendant) of the court of the Member State of origin, the party seeking recognition or applying for a declaration of enforceability shall produce 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 any document indicating that the defendant has accepted the judgment unequivocally. Paragraph 2 of Article 37 BR II 2003 refers to the documents which must be produced in the case of a judgment given in default and it is logical that it confines itself to cases in which recognition or enforcement is being sought because, precisely in cases of non-recognition it is normal that no such documents exist, as a judgment given in default is concerned. In cases of non-recognition (see Article 22 and Article 23 BR II 2003), proof must be provided in the required form that the written application or a similar document was notified or, in the case of a judgment in divorce, legal separation or marriage annulment proceedings, that the respondent has unequivocally accepted the content of the judgment (Borras (1998) C 221/58). If the documents specified in Article 37(1)(b) – i.e. the certificate referred to in Article 39 BR II 2003 - or Article 37(2) – i.e. documents in case of a judgment given in default - 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 (Article 38 (1) BR II 2003). In order to facilitate attainment of its objective, this provision allows the court to specify a time for the production of documents, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production (e.g. where documents have been destroyed). This possibility is allowed only for documents specified in Article 37(1)(b) and (2) BR II 2003, and thus not for a copy of the judgment itself. This provision must be seen in conjunction with the provision in Article 30 BR II 2003 regarding the consequences if the application for exequatur is not supported by the documents required in earlier Articles. If, despite the mechanisms put in place, the documents presented were insufficient and the court did not succeed in obtaining the information desired, it could declare the application inadmissible. 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 38(2) BR II 2003). In line with the simplification aimed at in the Brussels II Regulation 2003, a translation will be necessary only if the court so requires. In addition, the translation can be certified by a person qualified to do so in any of the Member States and not necessarily in the State of origin or the State in which enforcement is sought. As mentioned before, Dutch Law orders that the language of the courts in the Netherlands is Dutch. Accordingly, the initial summons or application initiating proceedings must be drawn up in that language, just as all other documents and papers, even evidence, that is brought before the court. In addition to the documents required under Article 37 BR II 2003, the party applying for enforcement must also produce documents which establish that, according to the law of the Member State of origin, the judgment is enforceable and has been served. Therefore it is necessary to attach to the application a certificate as referred to in Article 39 BR II 2003. The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility). The request to issue such a certificate can also be done separately after the legal proceeding at that court has ended. No legalisation or other similar formality shall be required in respect of the documents referred to in Article 37 and Article 38 or in respect of a document appointing a representative ad litem in the proceedings for obtaining exequatur (Article 52 BR II 2003).
‘The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application’ (Article 31(1) BR II 2003). This provision establishes the unilateral, ex parte, nature of the exequatur procedure, in which the person against whom enforcement is sought will not be entitled to make any submissions on the application, even in exceptional cases, since such submissions would systematically change the procedure from a unilateral into a contradictory one. The rights of defence are respected by allowing the person against whom enforcement is sought to appeal against the decision granting enforcement. The court must give its decision 'without delay', but no time limit is set since such a limit does not exist in judicial practice and no sanction would be possible if it were not met. Since the general rule is the grant of exequatur on the basis of the mutual confidence created by the assumption that all courts within the European Union will have applied the Brussels II Regulation 2003 correctly, the procedure in this instance remains unilateral and rapid given that there is provision for appeal in the later Articles of the Regulation in cases in which there are problems. ‘The application may be refused only for one of the reasons specified in Articles 22, 23 and 24’ (Article 31(1) BR II 2003). ‘Under no circumstances may a judgment be reviewed as to its substance’ (Article 31(2) BR II 2003). Therefore the court may rule only on enforcement and may not at this stage review custody measures.
‘The appropriate officer of the court shall, without delay, bring to the notice of the applicant the decision given on the application in accordance with the procedure laid down by the law of the Member State of enforcement’ (Article 32 BR II 2003). This Article provides that the decision of the requested court will be notified in accordance with the law of the Member State in which enforcement is sought. It illustrates the importance of an address for service or appointment of a representative ad litem (see Article 30 BR II 2003) and has implications for the lodging of appeals referred to in the Articles that follow (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).
Where the exequatur procedure at first instance is one-sided, in the sense that only the applicant makes a request, to which the judgment and certificate of the court of the Member State of origin are added, the procedure of appeal against this decision involves both parties. The decision on the application for a declaration of enforceability may be appealed against by either party’ (Article 33(1) BR II 2003). ‘The appeal shall be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68’ (Article 33(2) BR II 2003). In the Netherlands this is the Court of Appeal in whose resort the District Court that gave a decision at fist instance is located. ‘The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters’ (Article 33(3) BR II 2003). ‘If the appeal is brought by the applicant for a declaration of enforceability, the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 18 shall apply’ (Article 33(4) BR II 2003). ‘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 33(5) BR II 2003). Initially there were two separate provisions: one concerning the possibility to appeal against a judgment which authorised the requested enforcement (Art. 26 BC, later Art. 27 BR II 2000) and one regarding the possibility of appeal by the applicant when enforcement was refused (Art. 27 BC, later Art. 28 BR II 2000). This changed already under The Brussels II Regulation 2000, when the two provisions were put together in Article 26 BR II 2000. As of then the decision on the application for a declaration of enforceability may be appealed against by either party. The appeal has to be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68. Unlike the application procedure to give a judgment to authorise the enforcement of another judgment from a different Member State, which procedure is unilateral, in the sense that only the applicant is involved, and not the person against whom enforcement is sought, the appeal itself is always dealt with in accordance with the rules governing procedure in contradictory matters. This topic needs to be taken into account particularly with regard to the language differences, which must not, under any circumstances, equate 'contradictory' with 'contentious'. In some Member States the term means contentious as well as contradictory, whereas such is not the case in others. Hence, although the procedure must always be contradictory, whether or not it is also contentious will depend on internal law, in the same way as the law of the forum determines the procedure (lex fori regit processum). But also after the two provisions were put together in a new Article 26, there still remained some differences between an appeal against a judgment which authorised the enforcement and an appeal against a judgement which refused the enforcement. Since Article 33 of the Brussels II Regulation 2003 corresponds to Article 26 of Council Regulation (EC) No 1347/2000 (Brussels II Regulation 2000), these differences are still here today. If the appeal is brought by the applicant for a declaration of enforceability, thus in case of an appeal against a judgment to refuse the requested enforcement, the party against whom enforcement is sought, shall be summoned to appear before the appellate court. If such person fails to appear, the court with jurisdiction has to examine of its own motion if it has jurisdiction, this in conformity with Article 18 of the Brussels II Regulation 2003, whether the party against whom enforcement is sought, resides in a Member State or in a non-member State. The court with jurisdiction shall stay the proceedings as 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. Although the appeal is governed by the rules of procedure in contradictory matters of the Member State of the court of appeal, there is no time limit for appeal when the applicant appeals against a judgement to refuse the enforcement of the judgment from the court of another Member State. The reason is that, if the applicant's application has been rejected, he has the right to appeal when he thinks fit and when, for example, he is able to assemble the relevant documentation. Once again, the objective of the Regulation denotes the difference in the procedure to be followed: the normal consequence is for the judgment to be enforced and, accordingly, after the first decision, taken rapidly by the unilateral procedure, every opportunity must be given for this aim to be achieved. If the appeal is brought by the party against whom enforcement is sought, thus in case of an appeal against a judgment which authorised the enforceability, the appeal 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.
‘The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each Member State to the Commission pursuant to Article 68’ (Article 34 BR II 2003). The only means of contesting a judgment given on appeal is in cassation or by any other top-level appeal procedure in Member States which do not have a cassation system. The objective of limiting the avenues of appeal in this way is to avoid unnecessary appeals which could be unfounded delaying manoeuvres. The ultimate purpose is to safeguard the objective of the Regulation which is to facilitate free movement of judgments. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). In the Netherlands a decision of the Court of Appeal can only be contested in cassation at the Supreme Court at The Hague.
In some cases it may happen that the judgment in the court of origin is enforceable even though an appeal has been initiated or the time limit for appeal has not come to an end. This is for instance the case in the Netherlands, where judgments are usually immediately enforceable, whereas an appeal against it has no effect on this enforceability. In such circumstances, it is desirable to avoid complicating the situation which would result from the grant of exequatur of the judgment. Article 35 BR II 2003 makes it possible to stay proceedings. ‘The court with which the appeal is lodged under Articles 33 or 34 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin, or if the time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged’ (Article 35(1) BR II 2003). Paragraph 2 deals with the special circumstances in Ireland and the United Kingdom. ‘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 35(2) BR II 2003). This provision therefore provides that the court with which the appeal is lodged may stay the proceedings if an ordinary appeal has been lodged against the decision in the Member State of origin or if the time for such appeal has not yet expired, but is not obliged to do so. The stay of proceedings can only take place on the application of the appellant (Borras (1998) C 221/56)
Article 36 BR II 2003 deals with two separate issues. Paragraph 1 refers to the situation where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them. In that case the court will authorise enforcement for one or more of them. ‘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’ (Article 36(1) BR II 2003). The second hypothesis, in paragraph 2, is that the applicant may request only partial enforcement of a judgment. (Borras (1998) C 221/57). No other party has this competence.
The provisions of Chapter III of the Brussels II Regulation 2003, with the exception of Section 4, shall also apply to the determination of the amount of costs and expenses of proceedings under this Regulation and to the enforcement of any order concerning such costs and expenses (Article 49 BR II 2003). If the applicant has benefited in the Member State of origin from complete or partial legal aid or exemption from costs or expenses he will also be entitled, in the Member State in which enforcement is sought, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the State addressed (Article 50 BR II 2003). Thus when applying for exequatur, a person is entitled to legal aid in the Member State of enforcement, according to the rules of that State, if he or she was so entitled in his or her Member State of origin. Such a person may also be assisted by the central authorities, which shall have the role of informing and assisting holders of parental responsibility who seek the recognition and enforcement of a decision on parental responsibility in another Member State (Article 55(b) BR II 2003). This possibility has been carried over from the Brussels II Regulation 2000. It applies also to decisions on parental responsibility, e.g. in matters of custody rights. There are, however, two exceptions where the Regulation dispenses with this procedure and where a decision is to be recognised and enforceable in other Member States without any procedure. The exceptions concern access rights (See Chapter VI) and the return of the child following abduction (See Chapter VII). Article 51 BR II 2003 repeats the now well established principle that no security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition or enforcement of a judgment given in another Member State (cautio judicatum solvi), only on the 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.
Section 5 of Chapter III of the Brussels II Regulation 2003 contains a rule with respect to the status of authentic instruments and agreements. It entails only one provision. ‘Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments’ (Article 46 BR II 2003).
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