The Brussels II Regulation 2003

Relations with other Conventions and instruments

Relation with other instruments (Article 59)

Since the European Union and its Commission have no power over States that are not a member of the European Union, the Brussels II Regulation 2003 can’t order that bilateral or multilateral Conventions between one or more Member States and other countries, have come to an end. So these Conventions stay in force as far as it concerns the relationship of a Member State to a non-member state, which are both a party to such Conventions. But the Brussels II Regulation 2003 forbids Member States to close new Conventions with the same scope. Neither can Member State join such existing (multilateral) Conventions to which they where not yet a party at the moment the Brussels II Regulation 2003 came into force.

However, as far as it concerns the mutual relationship between the Member States, the European Commission and Parliament have direct power. In order to achieve uniformity and legal certainty the Brussels II Regulation 2003 sets aside all bilateral and multilateral Conventions to which the Member States are a party as far as it concerns their mutual relationship with regard to subjects which are covered by the Brussels II Regulation 2003. ‘Subject to the provisions of Articles 60, 63, 64 and paragraph 2 of this Article, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of this Regulation which have been concluded between two or more Member States and relate to matters governed by this Regulation’ (Article 59(1) BR II 2003). So paragraph 1 contains the general rule that the Brussels II Regulation 2003 shall, for the Member States which are parties to it, supersede bilateral or multilateral conventions existing between the Member States. It does not list the Conventions which exist. The reason is that in relation to other Conventions the Brussels II Regulation 2003 is the basic instrument on the matters covered by it (Article 1 BR II 2003). Existing Conventions which apply in part to these matters are dealt with, as far as it concerns the mutual relationship between Member States, in Articles 60 and 61 BR II 2003 and Article 63 BR II 2003.

A special exception to the previous rule is made for Finland and Sweden (not for Denmark since it hasn’t except the Brussels II Regulation 2003). These Member States are both a party to the Agreement of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden which contains rules of international private law concerning marriage, adoption and custody. That Agreement was amended most recently by an Agreement adopted in Stockholm in 1973. As a result of the political agreement reached in December 1997 within the European Union, 59(2) BR II 2003 refers to this particular situation, enabling the Nordic Member States to continue applying the Nordic Agreement in their mutual relations. However, the conditions laid down in that Article must be fulfilled.

Firstly the principle of non-discrimination on the grounds of nationality between citizens of the Union must be respected also by Finland and Sweden at the application of the before mentioned Nordic Agreement. Paragraph 2(b) of Article 59 BR II 2003 affirms the principle of non-discrimination on grounds of nationality on a declaratory basis, as Article 6 of the EC Treaty applies in all matters governed by the Treaty and therefore by the Regulation. It will be monitored by the Court of Justice. The Commission considers that Member States wishing to exercise this right should reiterate the Declaration annexed to the Regulation.

Secondly, Article 59(2)(c) orders that the rules of jurisdiction in any future agreement to be concluded between the Member States referred to in subparagraph (a) (Finland and Sweden) which relate to matters governed by the Brussels II Regulation must be in line with those laid down in this Regulation. Paragraph (c) is included to guarantee that the rules governing jurisdiction included in any future agreement between the Nordic Member States concerning the matters included in the Regulation comply with the Brussels II Regulation 2003.

Thirdly, 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 of this Regulation, shall be recognised and enforced in the other Member States under the rules laid down in Chapter III of this Regulation.

The agreements and conventions referred to in Articles 59(1), 60 and 61 shall continue to have effect on the mutual relationship between Member States which are a party to the mentioned Conventions, but only in relation to matters not governed by the Brussels II Regulation 2003 (Article 62(1) BR II 2003).

Relations with certain multilateral conventions (Article 60)

Article 60 BR II 2003 contains the general rule that the Brussels II Regulation 2003 takes precedence over other international Conventions to which the Member States are party in so far as they concern matters governed by the Regulation. It should be pointed out that not all the Member States are party to all the Conventions mentioned in this Article and that their inclusion in the list does not mean that the Member States are recommended to accede to them. The provision is simply a practical statement of the relationship between this Regulation and other Treaty texts as far as it concerns the mutual relationship between the Member States which are also a party to the listed Conventions. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

‘The text adopted means that this [Regulation] takes precedence and that it must therefore be compulsory to apply it in place of such other agreements. Some Member States wanted the use of this [Regulation] to be optional in relation to one or other of the conventions listed or even to apply internal rules in its place if they were more favourable, but that proposal was rejected. Legal certainty and mutual confidence require the rule which was finally adopted whereby there is an obligation to give precedence to the application of this [Regulation]. (….) The inclusion of the 1970 Hague Convention on divorce means that this [Regulation] must take precedence since it is also a double Convention’. (Borras (1998) C 221/60)

‘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:

1. the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors;
   
2. the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages;
   
3. the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations;
   
4. the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, and;
   
5. the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’.

The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue to produce effects between the Member States which are party thereto, in compliance with Article 60 (Article 62(2) BR II 2003). Thus in so far as these Conventions concern matters which are not governed by the Brussels II Regulation 2003, the Member States, which have ratified one or more of the above mentioned Conventions, are bound to act in accordance with it in their mutual relationship. This means, for instance, that the Hague Convention of 25 October 1980 on the civil aspects of international child abduction (‘the 1980 Hague Convention’), which has been ratified by all Member States, will continue to apply in the relations between Member States. Yet, the 1980 Hague Convention is supplemented by certain provisions of the Brussels II Regulation, which come into play in cases of child abduction between Member States. The rules of the Regulation prevail over the rules of the 1980 Hague Convention in relations between Member States in matters covered by the Regulation.

It should be noted also that the Brussels II Regulation 2003 in situations of child abduction refers in Article 11 to the procedure under the 1980 Hague Convention. ‘Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention'), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 of Article 11 shall apply. Since the Brussels II Regulation 2003 itself orders to recognize this procedure of the 1980 Hague Convention, this procedure is of course not set aside by the Regulation.

Relation with the 1996 Hague Convention (Article 61)

As concerns the relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, the Brussels II Regulation 2003 shall, according to Article 61, apply:

1. where the child concerned has his or her habitual residence on the territory of a Member State;
   
2. as concerns the recognition and enforcement of a judgment given in a court of a Member State on the territory of another Member State, even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the said Convention.

   ‘The scope of application of the Regulation is very similar to that of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of the child (“the 1996 Hague Convention”). Both instruments contain rules on jurisdiction, recognition and enforcement of decisions on parental responsibility.
   Six Member States have ratified or adhered to the Convention to this date (June 2005): the Czech Republic, Latvia, Estonia, Slovakia, Lithuania and Slovenia. The remaining Member States, with the exception of Hungary and Malta, have all signed but not yet ratified the Convention. It is foreseen that the Convention will enter into force in the Member States once they have all ratified it in the interest of the Community. The relationship between the two instruments is clarified in Articles 61 and 62.

   Articles 61 and 62
   In order to determine whether the Regulation or the Convention applies in a specific case, the following questions should be examined:

   (a) Does the case concern a matter covered by the Regulation?

   The Regulation prevails over the Convention in relations between Member States in matters covered by the Regulation. Consequently, the Regulation prevails in matters of jurisdiction, recognition and enforcement. On the other hand, the Convention applies in relations between Member States in matters of applicable law, since this subject is not [yet] covered by the Regulation.

   (b) Does the child concerned have his/her habitual residence on the territory of a Member State?

   If both (a) and (b) apply, the Regulation prevails over the Convention.

   (c) Does the case concern the recognition and/or enforcement of a decision issued by a court in another Member State?

   Question (c) must be addressed on the basis that the rules on recognition and
   enforcement of the Regulation apply with regard to all decisions issued by the competent court of a Member State. It is irrelevant whether the child concerned lives within the territory of a particular Member State or not so long as the courts of that State have competence to take the decision in question. Hence, the rules on recognition and enforcement of the Regulation apply to decisions issued by the courts of a Member State even if the child concerned lives in a third State which is a contracting Party to the Convention. The aim is to ensure the creation of a common judicial area which requires that all decisions issued by competent courts within the European Union are recognised and enforced under a common set of rules.

   Article 12(4)
   As described in Chapter II, Article 12 of the Regulation introduces a limited prorogation option for a party to choose to seise a court of a Member State in which the child is not habitually resident, but with which the child has nevertheless a substantial connection. This option is not limited to situations where the child is habitually resident within the territory of a Member State, but it applies also where the habitual residence of the child is in a third State that is not a contracting party to the 1996 Hague Convention. In that case, jurisdiction under Article 12 shall be deemed to be in the child’s best interests, in particular, but not only, if it is found impossible to hold proceedings in the third State in question (Article 12(4)).

   By contrast, if the child is habitually resident in the territory of a third State which is a contracting party to the Convention, the rules of the Convention apply’ (Practice Guide 2005, p. 45-47).

Treaties with the Holy See (Article 63)

This Article deals with agreements with non-member countries, in practice the exclusive jurisdiction of ecclesiastical courts to annul canonical marriages. Portugal would in fact violate the international obligations it assumed under the Concordat if it applied the rules in Articles 2 et seq. recognising the jurisdiction of civil courts to annul Portuguese canonical marriages.

The safeguarding of the Concordat, in accordance with Article 63 BR II 2003, thus confers on Portugal the option of not recognising such jurisdiction nor any judgments to annul the marriages referred to which these courts might hand down.

Secondly, in accordance with paragraph 2, annulment judgments pronounced pursuant to the rules of the Concordat or the Portuguese Civil Code are recognised in the Member States once they have been incorporated into the Portuguese legal system.

The situation in Portugal is different from that in Spain and Italy where the ecclesiastical courts' jurisdiction to declare annulment is not exclusive but concurrent and there is a particular procedure for recognition in the civil system. For that reason, a separate paragraph refers to those Concordats and stipulates that judgments given under them will enjoy the same system of recognition, although there is no exclusive jurisdiction.

In Spain there is an Agreement with the Holy See on legal affairs of 3 January 1979. Separation and divorce are matters for the civil courts. The ecclesiastical courts' exclusive jurisdiction in relation to annulment disappeared after the entry into force of the 1978 Constitution; the civil courts and the ecclesiastical courts now have alternative jurisdiction and there is provision for recognition of civil effects. In such cases, in addition to the 1979 Agreement mentioned above, account needs to be taken of Article 80 of the Civil Code and the second additional Provision to Law 30/1981 of 7 July 1981, which amends the rules on matrimony in the Civil Code and determines the procedure to be followed in annulment, separation and divorce cases. The consequences of these provisions are as follows:

1. canonical decisions and judgments only produce civil effects if both parties consent and neither contests;
   
2. there having been no contest, the ordinary court determines whether the canonical judgment has civil effects or not and, if it does, proceeds to enforce it in accordance with the Civil Code provisions on annulment and dissolution cases;
   
3. annulment cases in canon law and in civil law do not coincide. For that reason, there is discussion as to whether canonical judgments 'which accord with State law' can be considered effective in the civil order;
   
4. Article 80 of the Civil Code refers to Article 954 of the Code of Civil Procedure, regarding the conditions for enforcing foreign judgments. Such reference is relevant to default of appearance by the respondent. The essential issue is whether or not one of the parties has opposed the application to give the canonical judgments and decisions on marriage annulment civil effect.

The Agreement of 18 February 1984 between the Italian Republic and the Holy See amended the 'Concordato Lateranense' of 11 February 1929. Article 8(2) provides that marriage annulment judgments by the ecclesiastical courts which are enforceable will produce effects in Italy by decision of the 'Corte d'appello' having jurisdiction, provided that:

1. the ecclesiastical court had jurisdiction over the case in that it was a marriage celebrated in accordance with the requirements laid down by that Article;
   
2. the procedure before the ecclesiastical courts afforded the parties the right to appear and to be defended, in accordance with the fundamental principles of the Italian legal system;
   
3. the conditions required by Italian legislation for declaring foreign judgments effective have been met. Although Law 218 of 31 May 1995 on the reform of the Italian system of private international law derogated from Articles 796 et seq. of the 'Codice di Procedura Civile' (Code of Civil Procedure), in practice it is understood that, pursuant to Article 2 thereof (international agreements), those Articles remain in force for recognition of ecclesiastical judgments on annulment of marriages. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

   Borras Report 1998: Article 40 (was 42) Treaties with the Holy See [now Article 63 BR II 2003]

   ‘120. When the scope of the [Regulation] was being examined (see commentary on Article 1, paragraph 20 part B) it was pointed out that certain treaties with the Holy See enjoyed special arrangements. There remained to be resolved the difficult problem linked to the fact that in Portugal, ecclesiastical courts have exclusive jurisdiction to annul a Catholic marriage concluded in accordance with the Concordat, pursuant to Article XXV of the Concordat (the term used to describe international treaties with the Holy See) between Portugal and the Holy See of 7 May 1940, as amended by the additional Protocol of 4 April 1975 and Articles 1625 and 1626 of the Portuguese Civil Code.

   It is necessary to point out that the 1975 additional Protocol has no bearing on this [Regulation] because it is limited to amending Article XXIV of the Concordat to enable civil courts to issue a decree of divorce in the case of canonical marriages, which was forbidden to both civil and ecclesiastical courts by the original version of the Concordat as canonical law does not recognise the dissolution of marriage by divorce.

   For Portugal, the problem lay in the exclusive competence of ecclesiastical courts to annul canonical marriages. Portugal would in fact violate the international obligations it assumed under the Concordat if it agreed to ratify the Convention [being the forerunner of the Brussels II Regulation] recognising the competence (pursuant to Articles 2, et seq.) of civil courts to annul Portuguese canonical marriages.

   The safeguarding of the Concordat, in accordance with Article 40(1) [was 42(1) and is now Art. 63 BR 2003], thus confers on Portugal the option of not recognising such competence nor any judgments to annul the marriages referred to which these courts might hand down.

   Secondly, in accordance with paragraph 2, annulment judgments pronounced pursuant to the rules of the Concordat or the Portuguese Civil Code are recognised in the Member States once they have been incorporated into the Portuguese legal system.

   On the same topic, Italy (see paragraph 129 concerning Article 46) is making a declaration to be annexed to the [Regulation] in which it reserves the right, in respect of judgments by Portuguese ecclesiastical courts, to adopt the procedures and carry out the checks provided for in its own legal system in respect of similar judgments by ecclesiastical courts, on the basis of the agreements it has concluded with the Holy See. 121. The situation in Portugal is different from that in Spain and Italy where the ecclesiastical courts’ jurisdiction to declare annulment is not exclusive but concurrent and there is a particular procedure for recognition in the civil system. For that reason, a separate paragraph refers to those Concordats and stipulates that judgments given under them will enjoy the same system of recognition, although there is no exclusive jurisdiction. (Borras (1998) C 221/61)

   122. In Spain there is an Agreement between the Holy See and the Spanish State on legal affairs of 3 January 1979. Article VI.2 thereof provides that ‘the contracting parties may, under the provisions of Canon Law, seise the ecclesiastical courts to apply for a declaration of annulment or a pontifical declaration on an unconsummated marriage. At the request of either party, such ecclesiastical decisions will be effective in the civil order if they are declared to comply with the Law of the State in a judgment given by the civil court having jurisdiction’.

   Separation and divorce are, however, matters for the civil courts. The ecclesiastical courts’ exclusive jurisdiction in relation to annulment disappeared after the entry into force of the 1978 Constitution; the civil courts and the ecclesiastical courts now have alternative jurisdiction and there is provision for recognition of civil effects. In such cases, in addition to the 1979 Agreement mentioned above, account needs to be taken of Article 80 of the Civil Code and the second additional Provision to Law 30/1981 of 7 July which amends the rules on matrimony in the Civil Code and determines the procedure to be followed in annulment, separation and divorce cases. The consequences of these provisions are as follows: firstly, canonical decisions and judgments only produce civil effects if both parties consent and neither contests. Secondly, there having been no contest, the ordinary court determines whether the canonical judgment has civil effects or not and, if it does, proceeds to enforce it in accordance with the Civil Code provisions on annulment and dissolution cases. Thirdly, annulment cases in canon law and in civil law do not coincide. For that reason, there is discussion as to whether canonical judgments ‘which accord with State law’ can be considered effective in the civil order. Fourthly, Article 80 of the Civil Code refers to Article 954 of the Law on Civil Procedure, regarding the conditions for enforcing foreign judgments. Such reference is relevant to default of appearance by the respondent. The essential issue is whether or not one of the parties has opposed the application to give the canonical judgments and decisions on marriage annulment civil effect. (Borras (1998) C 221/61-62)

   123. In Italy the relevant agreement is the Agreement of 18 February 1984 between the Italian Republic and the Holy See amending the ‘Concordato Lateranense’ of 11 February 1929. Article 8(2) provides that marriage annulment judgments by the ecclesiastical courts which are enforceable will produce effects in Italy by decision of the ‘Corte d’appello’ having jurisdiction, provided that: (a) the ecclesiastical court had jurisdiction over the case in that it was a marriage celebrated in accordance with the requirements laid down by that Article; (b) the procedure before the ecclesiastical courts afforded the parties the right to appear and to be defended, in accordance with the fundamental principles of the Italian legal system; (c) the conditions required by Italian legislation for declaring foreign judgments effective have been met. Although Law 218 of 31 May 1995 on the reform of the Italian system of private international law (Article 73) derogated from Articles 796 et seq. of the ‘Codice di Procedura Civile’ (Code of Civil Procedure), in practice it is understood that, pursuant to Article 2 thereof (international agreements), those Articles remain in force for recognition of ecclesiastical judgments on annulment of marriages.

   124. Paragraph 4, like Article 36 [was 38 and is now Article 59(3) BR 2003], requires Member States party to such international treaties or concordats to send to the depositary of this [Regulation] a copy of the treaties and to notify any denunciation of or amendments to them. Deletions from the list of agreements will be made in accordance with the arrangements in Article 49(3)’ (Borras (1998) C 221/62)