Comment on the Brussels II Regulation (2003)

SECTION 2 Parental responsibility

Article 8 Brussels II Regulation (2003)

Article 8 General jurisdiction 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. 2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.

Within the Brussels Regulation II a complete system has been set up by Proposal 2002 regarding jurisdiction for judgments on parental responsibility aimed at avoiding conflicts of competence. The rules have to a large extent been inspired by the corresponding rules of the 1996 Hague Convention. The basic ground of the child's habitual residence (Article 8) is qualified in certain cases of a change in the child's residence (lawful or unlawful) or pursuant to an agreement between the holders of parental responsibility (Articles 9 and 10 and a flexibility mechanism is also provided (Article 15). The aim is to attribute jurisdiction in all cases in a way that serves the best interests of the child.

These rules apply irrespective of the child's habitual residence being within or outside the Community. However, should the Community decide for the ratification of the 1996 Hague Convention by the Member States, the rules on jurisdiction set out in the Convention would take precedence over Community rules where the child concerned is not resident within the Community and is resident in a Contracting Party to the Convention that is not a Member State (Proposal 2002).

As in the 1996 Hague Convention, jurisdiction according to the Regulation is based in the first place on the child's habitual residence (Article 8). This means that, where a child's habitual residence changes, the courts of the Member State of his or her new habitual residence shall have jurisdiction. In line with customary practice within the Hague Conference where the concept of 'habitual residence' has been developed, the term is not defined, but is instead a question of fact to be appreciated by the judge in each case.

The concept of ‘habitual residence’ under Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

[see comment]

---

ECJ 2 April 2009 C-523/07
1. The concept of ‘habitual residence’ under Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case. (See also Opinion of Advocate General Kokott, delivered on 29 January 2009)

"The physical presence alone of the child in a Member State, as a jurisdictional rule alternative to that laid down in Article 8 of the Regulation, is not sufficient to establish the habitual residence of the child. According to settled case-law, it follows from the need for uniform application of Community law and from the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11, and Case C-98/07 Nordania Finans and BG Factoring [2008] ECR I-1281, paragraph 17). Since Article 8(1) of the Regulation does not make any express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of ‘habitual residence’, that determination must be made in the light of the context of the provisions and the objective of the Regulation, in particular that which is apparent from Recital 12 in the preamble, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity. The case-law of the Court relating to the concept of habitual residence in other areas of European Union law (see, in particular, Case C-452/93 P Magdalena Fernández v Commission [1994] ECR I-4295, paragraph 22; Case C-372/02 Adanez-Vega [2004] ECR I-10761, paragraph 37; and Case C-66/08 Kozlowski [2008] ECR I-0000) cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Article 8(1) of the Regulation. The ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. As the Advocate General pointed out in point 44 of her Opinion, the parents’ intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State. By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State. In the light of the criteria laid down in paragraphs 38 to 41 of this judgment and according to an overall assessment, it is for the national court to establish the place of the children’s habitual residence. However, it is conceivable that at the end of that assessment it is impossible to establish the Member State in which the child has his habitual residence. In such an exceptional case, and if Article 12 of the Regulation, which concerns the jurisdiction of the national courts with respect to questions relating to parental responsibility where those questions are related to an application for divorce, legal separation or marriage annulment, is not applicable, the national courts of the Member State in which the child is present acquire jurisdiction to hear and determine the substance of the case pursuant to Article 13(1) of the Regulation".

Article 9 Brussels II Regulation (2003)

Article 9 Continuing jurisdiction of the child's former habitual residence 1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence. 2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

This Article applies in certain cases of relocation, that is of a lawful change of residence of a child, to allow jurisdiction to remain for some time with the Member State of the former residence of the child. The conditions that must be met for the continuing jurisdiction of the courts of the Member State of the child's former residence that have already issued a judgment on parental responsibility are that the child has only recently moved to his or her new residence while one of the holders of parental responsibility continues to reside in the Member State of the former residence of the child. Thus the modification of its earlier judgment to take into account the child's relocation is made by the court that is closest to the child, which allows for some continuity without nonetheless touching on the definition of the term 'habitual residence'. [Proposal 2002]

Paragraph 2 provides that an appearance that is not entered for the purpose of contesting jurisdiction does not automatically imply that he or she has accepted the court's jurisdiction. It is important in family law cases that the judge should have some discretion in evaluating whether this is the case.

[see comment]

Article 10 Brussels II Regulation (2003)

Article 10 Jurisdiction in cases of child abduction In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

The fact that jurisdiction automatically follows a change in the child's habitual residence presents the risk of resorting to unlawful action to establish artificial jurisdictional links with a view to obtaining custody of a child. To prevent this, the first part of the sentence of Article 10 provides that, as a general matter, the change in a child's habitual residence resulting from abduction does not entail a transfer of jurisdiction to the courts of the Member State to which the child has been abducted. But as an exception to this general rule, Article 10 recognizes as well that it may be legitimate in certain cases for the de facto situation created by an unlawful act of child abduction to produce as a legal effect the transfer of jurisdiction. To this end, a balance must be struck between allowing the court that is now closest to the child to assume jurisdiction and preventing the abductor from reaping the benefit of his or her unlawful act [Proposal 2002].

The Regulation only allows a transfer of jurisdiction when the abducted child has acquired a habitual residence in another Member States and the strict conditions in Article 10 of the Brussels II Regulation have been met. The effect is that the left behind parent in the Member State of origine, where the child lived before its abduction, has the opportunity to retain jurisdiction in the Court of origin before jurisdiction shifts to the Member State where the abducted child has acquired a new habitual residence. In line with customary practice within the Hague Conference where the concept of 'habitual residence' has been developed, the term is not defined, but is instead a question of fact to be appreciated by the judge in each case.

Article 10 of the Regulation states that the Court of the Member State of the new habitual residence has gained jurisdiction when:

a. all persons having a right of custody with regard to the abducted child (if neccessary this includes the left behind parent in de Member State where the child lived before its abduction) have agreed (acquiesced) that the Member State of the new habitual residence of the child has jurisdiciton with regard to the question if the child is abducted and/are should be returned to the person from whom it was taken in the Member State where it lived before its abduction;

or

b. the child has resided in the Member State where it actualy lives for a period of at least one year after the persons with right of custody has had, or should have had knowledge of the whereabouts of the child and the child is settled in his/her new environment. But in that case the jurisdiction only shifts to the court of the Member State of the new habitual residence when at least one of the following conditions is met:

(i) Within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.

(ii) A request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i) above.

(iii) A case before the Court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed.

(iv) A Judgment on custody that does not entail the return of the child, has been issued by the Courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. ]

The solution put forth in this Chapter is premised on a level of trust inherent in a common judicial area and is expected to produce a deterrent effect, in that it would no longer be possible to bring about a change in the court having jurisdiction through unlawful action. Hence the Member State to which the child has been abducted can only take a provisional measure not to return the child, which could in turn be superseded by a decision on custody taken in the Member State of the child's habitual residence. And unlike the Hague Conventions only on the basis of the latter would jurisdiction be transferred. The solution relies on the active cooperation between central authorities, which must institute proceedings and keep each other informed of all stages in the process. For purposes of hearing the child, the mechanism of Council Regulation (EC) No 1206/2001 may be used.

At the international level, the 1980 Hague Convention aims at the restoration of the status quo by requiring the State to which a child has been abducted to order his or her immediate return. The Convention creates an effective ad hoc remedy without putting in place common rules on jurisdiction, recognition and enforcement. The latter are proposed in the 1996 Hague Convention, which nonetheless gives precedence to the 1980 Hague Convention. Ultimately both conventions allow under certain circumstances for a transfer of jurisdiction to the Member State to which the child has been abducted once a decision not to return the child has been taken by a court in that State. In Article 7 of the 1996 Hague Convention this balance is found on the basis that sufficient time has passed and that no request for return lodged within the one-year period is still pending. This means either that no request for return has been lodged, or that the Member State to which the child has been abducted has decided that a valid reason exists for not returning the child by applying one of the exceptions to return of the 1980 Hague Convention.

Given that a Community-specific solution is fashioned in cases of child abduction, Article 4 of Council Regulation (EC) No 1347/2000 has not been included. Instead, the 1980 Hague Convention is now listed in Article 63 among the conventions over which the Regulation takes precedence in the relations between Member States [Proposal 2002].

[see comment]

Article 11 Brussels II Regulation (2003)

Article 11 Return of the child 1. 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 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit. 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.

[see comment]

---

ECJ 11 July 2008 C-195/08 PPU
2. Except where the procedure concerns a decision certified pursuant to Articles 11(8) and 40 to 42 of Regulation No 2201/2003, any interested party can apply for non-recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand (See also Opinion of Advocate General Sharpston of 1 July 2008).

Article 12 Brussels II Regulation (2003)

Article 12 Prorogation of jurisdiction 1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child. 2. The jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final; (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final; (c) the proceedings referred to in (a) and (b) have come to an end for another reason. 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child. 4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to 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, jurisdiction under this Article shall be deemed to be in the child's interest, in particular if it is found impossible to hold proceedings in the third State in question.

Article 12 determines where and under what conditions authorities of the State, the judicial bodies of which have jurisdiction in matrimonial proceedings in accordance with the grounds set out in Article 2, have jurisdiction in a matter relating to 'parental responsibility' over a child.

Article 12 paragraph 1 sets out the conditions under which the authorities of the Member State exercising jurisdiction on the divorce also have jurisdiction to decide on parental responsibility where the child is resident not in that State but in another Member State. Both of the following conditions have to be met: (a) at least one of the spouses must have parental responsibility in relation to the child and (b) the jurisdiction of the courts must have been accepted by the spouses and must be in the best interests of the child. Therefore, the spouses may accept the jurisdiction of the divorce court to also decide on parental responsibility over their common children.

Article 12 paragraph 2 determines when the jurisdiction conferred by paragraph 1 will cease, listing three alternative events any of which will cause it to cease.

Subparagraph (a) deals with the basic assumption that the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final, that is to say that no further appeal or review of any kind is possible. Once that happens, and without prejudice to subparagraph (b), Article 12(1) and (2) no longer apply. Parental responsibility will then have to be determined either by national law or by the relevant international Conventions.

In addition to this well-known situation, and without prejudice to the residual rule in subparagraph (c), subparagraph (b) adds another situation where, on the date on which the judgment on the matrimonial proceedings becomes final, in the sense that such a judgment cannot be the subject of any sort of appeal, proceedings in relation to parental responsibility are still pending and provides that jurisdiction will not cease until a judgment in the responsibility proceedings has become final; in any event in this situation jurisdiction on parental responsibility may be exercised even if the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final.

Subparagraph (c) deals with the residual or concluding situation where the proceedings have come to an end for another reason (for example, the application for divorce is withdrawn or one of the spouses dies). (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

Paragraph 3 of Article 12 allows for an agreement among all holders of parental responsibility to bring the case before the courts of a Member State with which the child has a substantial connection. Such a connection may for instance be based on the habitual residence of one of the holders of parental responsibility or on the nationality of the child. This solution aims at promoting agreement, even if only on the court that should hear the case, also giving some flexibility to the holders of parental responsibility, while the court seized must find that assuming jurisdiction is in the best interests of the child [Proposal 2002].

[see comment]

---

Borras Report 1998: Article 3 Parental responsibility

35. Article 1 having established that proceedings relating to parental responsibility (for the use of this term see commentary on Article 1) which are seen to be connected with the proceedings relating to divorce, legal separation or marriage annulment fall within the scope of the Convention, Article 3 determines where and under what conditions authorities of the State, the judicial bodies of which have jurisdiction in matrimonial proceedings in accordance with the grounds set out in Article 2, have jurisdiction in a matter relating to parental responsibility over a child of both spouses. Article 3 thus comprises three paragraphs: paragraph 1 establishes the jurisdiction of the authorities of the Member State whose courts have jurisdiction in the matrimonial proceedings and paragraph 2 deals with cases where the child is not habitually resident in that Member State. Paragraph 3 sets a time limit for such jurisdiction. (Borras (1998) C 221/39)

36. The structure and content of this provision are the product of difficult negotiation, both within the Community and in relation to worldwide provisions, particularly the 1996 Hague Convention. The fact that the Community Convention limits itself to children habitually resident in the Member States facilitates its compatibility with the Hague Convention. The agreement between the Member States to include this matter within the scope of the Convention simply transferred the problem to the establishment of grounds of jurisdiction, since while there were no problems where the child is habitually resident in the State whose authorities have jurisdiction in the matrimonial proceedings, the same does not apply to cases where the child is habitually resident in another Member State.

The problem is further complicated by the fact that Article 52(2) of the 1996 Hague Convention provides that that Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain, in respect of children habitually resident in any of the States Parties to such agreements, provisions on matters governed by that Convention. As a result, where both Conventions are in force, the Convention to which this report relates will take precedence in respect of children resident in Member States of the European Union which are party to it, whereas the Hague Convention will apply to other cases. (Borras (1998) C 221/40)

37. There are no problems in relation to Article 3(1) which establishes jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in the Member State whose authorities also exercise jurisdiction in the matrimonial proceedings. It needs to be made clear that in no case does that provision mean that it must be the same authorities in the State concerned who rule on the matrimonial issue and on the parental responsibility: the rule is intended only to establish that the authorities deciding on both matters are authorities of the same State. In practice, they will be the same authorities in some States and separate authorities in others. For the purposes of the Convention, the only point of interest is that they be authorities of the same Member State, with due regard for the internal distribution of competence. (Borras (1998) C 221/40)

38. Paragraph 2 sets out the conditions under which the authorities of the Member State exercising jurisdiction on the divorce also have jurisdiction to decide on parental responsibility where the child is resident not in that State but in another Member State. Both of the following conditions have to be met: at least one of the spouses must have parental responsibility in relation to the child and the jurisdiction of the courts must have been accepted by the spouses and must be in the best interests of the child. This provision is taken from Article 10(1) of the 1996 Hague Convention, which guarantees that there is no contradiction between Article 3(2) of the Convention under discussion and the relevant provisions of the said Hague Convention. The relevant provision of the Hague Convention says practically the same thing, the only difference being that in addition to requiring that one of the parents have parental responsibility, it also requires that at the time of commencement of the proceedings, one of the parents habitually resides in that State.

The difference derives from the differing subject matters of the two Conventions: the Hague Convention deals with protection of children, whereas the Convention to which this report relates deals with matrimonial matters and for that reason the parents’ connection with the territory of a State for the purposes of determining jurisdiction in matrimonial matters is determined by the grounds set out in Article 2. Article 3(2) is designed to cover one particular situation in which the best solution is to use the same grounds as in the Hague Convention. (Borras (1998) C 221/40)

39. The Convention chose not to enshrine perpetuatio jurisdiccionis for the divorce forum in relation to protection of the child of both spouses and for that reason paragraph 3 determines when the jurisdiction conferred by paragraphs 1 and 2 will cease, listing three alternative events any of which will cause it to cease. This provision follows Article 10(2) of the 1996 Hague Convention, the object being to avoid any contradiction between the two texts.

(a) Subparagraph (a) deals with the basic assumption that the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final, that is to say that no further appeal or review of any kind is possible. Once that happens, and without prejudice to subparagraph (b), Article 3(1) and (2) no longer apply. Parental responsibility will then have to be determined either by national law or by the relevant international Conventions. (Borras (1998) C 221/40)

(b) In addition to this well-known situation, and without prejudice to the residual rule in subparagraph (c), subparagraph (b) adds another situation where, on the date on which the judgment on the matrimonial proceedings becomes final, in the sense that such a judgment cannot be the subject of any sort of appeal, proceedings in relation to parental responsibility are still pending and provides that jurisdiction will not cease until a judgment in the responsibility proceedings has become final; in any event in this situation jurisdiction on parental responsibility may be exercised even if the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final. It was necessary to insert this provision in this Convention because it is conceivable that when different authorities within the same country are involved or in cases before the same authorities, the judgment on the matrimonial proceedings may be final at a time when the proceedings on parental responsibility have not yet come to an end. Jurisdiction on the parental responsibility therefore ceases on whichever of those two dates applies. It is therefore understood that proceedings on parental responsibility, once initiated, must continue until a final judgment is reached. The fact that the application relating to the marriage has been resolved may not prejudice the expectations created both for the parents and for the child that the parental responsibility proceedings will terminate in the Member State in which they began. Although not expressly stated, the intention is that there should be no perpetuatio jurisdiccionis but that proceedings on parental responsibility initiated in connection with matrimonial proceedings should not be interrupted. (Borras (1998) C 221/41)

(c) Subparagraph (c) deals with the residual or concluding situation where the proceedings have come to an end for another reason (for example, the application for divorce is withdrawn or one of the spouses dies). (Borras (1998) C 221/41)

Article 13 Brussels II Regulation (2003)

Article 13 Jurisdiction based on the child's presence 1. Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction. 2. Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

Paragraph 1 provides that if a child's habitual residence cannot be established, then the Member State of the child's presence shall by default assume jurisdiction.

Paragraph 2 provides for the jurisdiction of the Member State of the child's presence also in respect of refugee children.

This Article is subsidiary in relation to the jurisdictional bases in the preceding Articles.

[see comment]

Article 14 Brussels II Regulation (2003)

Article 14 Residual jurisdiction Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.

Following the provision in Article 6 (exclusive nature of jurisdiction under Articles 3, 4 and 5), this Article deals with arrangements existing in the national legal system which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-member State and none of the jurisdictional criteria of the Regulation is met, jurisdiction should be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one whereby the applicant who is a national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State. The prerequisite for applying that provision is that the respondent does not have his habitual residence in a Member State and is not a national of a Member State according to the criteria applicable to the case.

Such jurisdiction is termed 'residual' in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Regulation. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). Through this Article the Regulation itself foresees in a residual application of national rules of conflicts of law in the event that no court of a Member State has jurisdiction pursuant to Articles 8 to 13. A court decision based on residual jurisdiction benefits, as a result, from the rules of this Regulation for its recognition and enforcement in all other Member States.

[see comment]

---

Borras Report 1998: Article 8 Residual jurisdiction [Art. 14 BR 2003]

46. This Article corresponds to the rules of exorbitant jurisdiction referred to in Articles 3 and 4 of the 1968 Brussels Convention. There are, however, differences between the two texts. The nature of the jurisdictions laid down in the aforementioned Articles renders unnecessary a provision such as Article 3 of the 1968 Brussels Convention. (Borras (1998) C 221/43)

47. Following the provision in Article 7 (exclusive nature of jurisdiction under Articles 2 to 6), this Article deals with arrangements existing in the national legal system which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-Member State and none of the jurisdictional criteria of the Convention is met, jurisdiction should be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one whereby the applicant who is a national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State. The prerequisite for applying that provision is that the respondent does not have his habitual residence in a Member State and does not have his ‘domicile’ within the territory of a Member State and is not a national of a Member State according to the criteria applicable to the case in accordance with the statement provided for in Article 2(2) (see above).

Such jurisdiction is termed ‘residual’ in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Convention. That description was regarded as preferable to ‘extra-Community disputes’. In view of the function that that Article performs, like that of Article 4 of the Brussels Convention, contrary to the practice followed in Article 3 of the 1968 Brussels Convention, a list of these types of jurisdiction has not been included in this Article. Some States, like the Netherlands, have no jurisdiction in their internal legal system which can be defined as ‘residual’ for the purposes of Article 2 of the Convention.

Such jurisdiction does, however, exist in other national systems. Some examples are set out below.

In Germany, the rules of jurisdiction provided for in sections (1), (3) and (4) of Article 606a of the ‘Zivilprozessordnung’ could be described as residual; they provide that German courts have international jurisdiction when (1) one spouse is German or was German when the marriage took place; (2) one spouse is stateless and is habitually resident in Germany; or (3) one spouse is habitually resident in Germany, except where any judgment reached in their case could not be recognised in any of the States to which either spouse belonged.

In Finland, under Section 8 of the ‘Laki eräistä kansainvälisluontoisista perheoikeudellisista suhteista’/‘Lag angående vissa familjerättsliga förhållanden av internationell natur’ (International Family Relations Act) revised in 1987, Finnish courts will hear matrimonial cases even where neither spouse is habitually resident in Finland if the courts of the State of habitual residence of either of the spouses do not have jurisdiction or if application to the courts of the State of habitual residence would cause unreasonable difficulties and, furthermore, in the circumstances it would appear to be appropriate to assume jurisdiction (forum conveniens).

In Spain the only example would be one of the rules contained in Article 22(3) of the ‘Ley Orgánica del Poder Judicial’ (Law on the judicial system) of 1 July 1985 which allows the application to be made in Spain when the applicant is Spanish and is resident in Spain but does not meet any of the requirements in Article 2(1) of this Convention such as the express or tacit submission referred to in Article 22(2). Apart from that, all the other grounds for international jurisdiction in matrimonial matters which exist in Spanish law are contained in the Convention, these being that both spouses are habitually resident in Spain at the time of the application or that both spouses are of Spanish nationality, whatever their place of residence, provided that the application is made either jointly or with the agreement of the other spouse. (Borras (1998) C 221/43-44)

In France, Article 14 of the Civil Code would give French courts jurisdiction if the petitioner had French nationality.

In Ireland the courts would have jurisdiction in matters of annulment (Section 39 of the Family Law Act, 1995) divorce (Section 39 of the Family Law (Divorce) Act, 1996), and legal separation (Section 31 of the Judicial Separation and Family Law Reform Act, 1989), when either of the spouses is domiciled, for the purposes of Article 2(3), in the State on the date of institution of proceedings.

In Italy, the rules laid down in Articles 3, 4, 32 and 37 of Law 218 of 31 May 1995 on the reform of the Italian system of private international law are of this nature.

In the United Kingdom, a distinction has to be made between divorce, separation and annulment proceedings and custody orders relating to such proceedings. With regard to divorce, annulment and legal separation proceedings, this Article may cover grounds of jurisdiction based on the ‘domicile’ of either party in the United Kingdom at the time the application is made or on habitual residence for a year immediately preceding that date. In the case of divorce and separation proceedings, the Sheriff Courts in Scotland have jurisdiction if one party is either resident in the place for 40 days immediately prior to the submission of the application or has resided there for a period of at least 40 days ending not more than 40 days before that date and has no known residence in Scotland on that date. For custody orders contained in divorce, annulment and legal separation judgments, United Kingdom judicial bodies, including the Sheriff Courts in Scotland, will have jurisdiction, but if a court outwith the United Kingdom is conducting relevant proceedings, United Kingdom courts have a wide discretion to decline jurisdiction, provided that those proceedings continue and, in addition, that the proceedings continue before a judicial body that has jurisdiction under its national legislation. In the case of Sweden, the jurisdictional rules of Swedish courts for divorce matters are to be found in the ‘lag om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap’ (Act on certain international legal relations concerning marriage and guardianship) 1904, as amended in 1973. As regards Article 7 of the Convention, Swedish courts have jurisdiction in matters of divorce if both spouses are Swedish citizens, if the petitioner is Swedish and is habitually resident in Sweden or has been so at any time since reaching the age of 18 or if, in other cases, the government gives its consent to the cases being heard in Sweden. The government can give its consent only if one of the spouses is Swedish or the petitioner cannot bring the case before the courts of the State of which he is a national. (Borras (1998) C 221/44)

Article 15 Brussels II Regulation (2003)

Article 15 Transfer to a court better placed to hear the case 1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. 2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court's own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties. 3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or (b) is the former habitual residence of the child; or (c) is the place of the child's nationality; or (d) is the habitual residence of a holder of parental responsibility; or (e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property. 4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

The rules on jurisdiction in this Section (Section 2 Parental responsibility) have been structured with a view to putting into place a complete and rational system that serves the best interests of the child. Still, there may be situations (albeit exceptional) where the courts of another Member State would be better placed to hear the case. A provision that allows the transfer of a case has thus been included both to recognize and to further promote the mutual trust that has been developing between Member States in the area of judicial cooperation.

A similar mechanism for the transfer of cases is foreseen in the 1996 Hague Convention. However, the system of the Regulation is less open-ended. It is emphasized that Article 15 of the Regualtion should apply only in exceptional circumstances. The requisite connection to the Member State to which the case may be transferred is based on the child having a former habitual residence in that Member State, or the child being a national of that Member State, or one of the holders of parental responsibility having his or her habitual residence in that Member State or the child having property there. Moreover, the transfer must be requested by a holder of parental responsibility, and cannot therefore be made on the court's own initiative. An additional safeguard is the evaluation of the court proposing the transfer as well as the court accepting the transfer that this is in the best interests of the child.

The central authorities contribute towards facilitating communications between courts for purposes of this Article. At a later stage, a mechanism for direct court-to-court transfer may be envisaged; for the time being, however, the second court must be seized using normal procedures.

[see comment]

SECTION 3 Common provisions

Article 16 Brussels II Regulation (2003)

Article 16 Seising of a Court 1. A court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

[see comment]

Article 17 Brussels II Regulation (2003)

Article 17 Examination as to jurisdiction Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

Examination as to jurisdiction is carried out automatically by the court of origin, without any need for any party to request it is of particular importance, bearing in mind the major differences between internal regulations in the Member States and the interplay of choice-of-law rules applicable. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

---

Borras Report 1998: Article 9 Examination as to jurisdiction [Art. 17 BR 2003]

49. It is worth emphasising the special importance attaching in this Convention to the examination as to jurisdiction carried out automatically by the court of origin, without any need for any party to request it. Internal legal systems are particularly sensitive to matrimonial matters, more sensitive than they are to the property matters covered by the 1968 Brussels Convention.

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 2 [Art. 3 BR 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. On this topic, see also Ireland’s particular problem regarding recognition of foreign judgments in the commentary on Article 48. (Borras (1998) C 221/45)

Article 18 Brussels II Regulation (2003)

Article 18 Examination as to admissibility 1. Where a respondent habitually resident in a State other than the Member State where the action was brought does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. 2. Article 19 of Regulation (EC) No 1348/2000 shall apply instead of the provisions of paragraph 1 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation. 3. Where the provisions of Regulation (EC) No 1348/2000 are not applicable, Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

The purpose of this provision is to guarantee the right of defence. It is not sufficient to examine jurisdiction alone, as provided for in the previous Article; it is also necessary to establish a similar rule for examining admissibility, involving staying 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. The intention is that court can thus satisfy itself that international jurisdiction is well founded and so avoid possible causes of refusal of recognition wherever possible (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

---

Borras Report 1998: Article 10 Examination as to admissibility [Art. 18 BR 2003]

50. The purpose of this provision is to guarantee the right of defence. It is not sufficient to examine jurisdiction alone, as provided for in the previous Article; it is also necessary to establish a similar rule for examining admissibility, involving staying 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. The intention is that court can thus satisfy itself that international jurisdiction is well founded and so avoid possible causes of refusal of recognition wherever possible. (Borras (1998) C 221/45)

51. The provision is based on Article 20 of the 1968 Brussels Convention and, on the same topic, the provisions in the 1965 Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters. The court, when applying one of the grounds of jurisdiction provided for in the Convention, will examine its jurisdiction where the respondent does not enter an appearance. The wording adopted is simpler than in other Conventions but the essential elements are covered:

(a) an obligation on the court to stay proceedings, not merely an option;

(b) 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)

Article 19 Brussels II Regulation (2003)

Article 19 Lis pendens and dependent actions 1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

This Article provides a mechanism whereby the court second seized declines its jurisdiction in favor of the court first seized. It was felt necessary to give a rule for situations in which the same cause of action has been brought to the courts of two or more different Member States. The difference in rules governing matrimonial proceedings in the Member States raises the need for changes to the lis pendens rules in the Brussels Convention of 1968. In particular, certain Member States have no provision for annulment of marriage or for judicial separation. The difference in rules between the Member States also affects the very notion of lis pendens. The notion is more restricted in some States, 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.

As regards proceedings relating to divorce, legal separation or marriage annulment (paragraph 1), the mechanism is triggered if these are 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. Article 19 applies as well when, in order to end the same marriage, in one Member State a divorce petition is lodged, whereas in another Member State an application for a marriage annulment or legal separation has been brought to court.

As regards proceedings relating to parental responsibility (paragraph 2), the mechanism is triggered if these involve matters of parental responsibility over the same child. It is expected that this will rarely be used, as the jurisdictional regime for parental responsibility does not provide for alternative grounds of jurisdiction.

Paragraph 3 sets out the consequences of the acceptance of jurisdiction by the court first seised. The provision contains a general rule, which is that the court second seised shall decline jurisdiction in favour of that court. It also contains a special rule whereby the party who brought the relevant action before the court second seised may, if he so wishes, bring that action before the court which claims jurisdiction because it was seised earlier. The first words in the second paragraph of paragraph 3, 'in that case', must therefore be interpreted as meaning that only when the court second seised declines jurisdiction does the party have the possibility of bringing the action before the court having claimed jurisdiction because it was first seised. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Article 20 Brussels II Regulation (2003)

Article 20 Provisional, including protective, measures 1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter. 2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

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. Article 20 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. In urgent cases, the courts of the Member State where the child is present or its assets are located should be able to take the necessary measures to protect the child's person or property.

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 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.

The rule laid down in this Article is confined to establishing territorial effects in the State in which the measures are adopted. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

---

ECJ 2 April 2009 C-523/07
3. A protective measure, such as the taking into care of children, may be decided by a national court under Article 20 of Regulation No 2201/2003 if the following conditions are satisfied:
– the measure must be urgent;
– it must be taken in respect of persons in the Member State concerned, and
– it must be provisional.
4. The taking of the measure and its binding nature are determined in accordance with national law. After the protective measure has been taken, the national court is not required to transfer the case to the court of another Member State having jurisdiction. However, in so far as the protection of the best interests of the child so requires, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Article 53 of Regulation No 2201/2003, the court of another Member State having jurisdiction.
5. Where the court of a Member State does not have jurisdiction at all, it must declare of its own motion that it has no jurisdiction, but is not required to transfer the case to another court. However, in so far as the protection of the best interests of the child so requires, the national court which has declared of its own motion that it has no jurisdiction must inform, directly or through the central authority designated under Article 53 of Regulation No 2201/2003, the court of another Member State having jurisdiction. (See also Opinion of Advocate General Kokott, delivered on 29 January 2009)

 

---

Borras Report 1998: Article 12 Provisional and protective measures [Art. 20 BR 2003]

58. As regards the rule on provisional and protective measures, it must be observed that it is not subject to the jurisdictional rules of the Convention because it refers to proceedings encountered within its scope and this Article applies only to urgent cases. This provision is taken from Article 24 of the 1968 Brussels Convention, although it goes further than the provisions of that Article. Although Article 24 of the Brussels Convention presents problems which are under consideration in the current review of the Brussels and Lugano Conventions, it was considered preferable not to innovate on this occasion or to incorporate any of the suggestions made on the matter. In this instance, as in some others, the question of how any improvements made to the equivalent provision in the Brussels Convention can be incorporated will be left until later. (Borras (1998) C 221/47)

59. 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 Convention and are applicable only in urgent cases, they relate to both persons and to property and therefore touch on matters not covered by the Convention, in the case of actions provided for in national rules. The differences with respect to the Brussels Convention are significant, as in the Brussels Convention the measures to which Article 24(a) refers are restricted to matters within the scope of the Convention: those in (b) on the other hand, have extraterritorial effects. 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 Convention says nothing bout 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 Convention. This is a rule which enshrines national law jurisdiction, thereby derogating from the rules laid down in the first part of the Convention. 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 Convention and that judgment is recognised (or enforced) under the Convention. Other measures relating to matters excluded from the scope of the Convention will continue to apply until appropriate judgments are given by a court with jurisdiction for, for example, marriage contracts.

The rule laid down in this Article is confined to establishing territorial effects in the State in which the measures are adopted. (Borras (1998) C 221/47-48)

CHAPTER IIA APPLICABLE LAW IN MATTERS OF DIVORCE AND LEGAL SEPARATION [as from 1.03. 2008/0135 (CNS)) Chapter IIa is inserted]

The Commission proposes to introduce harmonised conflict-of-law rules in matters of divorce and legal separation, based in the first place on the choice of the spouses. The choice is confined to laws with which the spouses have a close connection by virtue of their last common habitual residence if one of them still resides there, the nationality of one of the spouses, the law of the State of their previous habitual residence or the law of the forum.

The majority of the respondents to the Green Paper considered that common conflict-of-law rules should apply to legal separation and divorce, since legal separation is in many cases the necessary precursor to divorce. The Member States that recognise legal separation apply the same conflict-of-law rules to divorce and legal separation. By contrast, most stakeholders were not in favour of extending these rules to marriage annulment, which is closely linked to the validity of the marriage and generally governed by the law of the State where the marriage was celebrated ("lex loci celebrationis") or the law of the nationality of the spouses ("lex patriae"). [Explanatory Memorandum COM) (2006) final]

Position of the United Kingdom, Ireland and Denmark

The United Kingdom and Ireland do not participate in co-operation in matters covered by Title IV of the Treaty unless they give notice of their wish to take part in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community. Denmark is not participating in the adoption of this Regulation and is not bound by it nor subject to its application by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. [Explanatory Memorandum COM) (2006) final]

Article 20a Brussels II Regulation (2003)

The vast majority of the national conflict-of-law rules only foresee one solution in a given situation. The proposal seeks to enhance the flexibility of the spouses by allowing them to choose the law applicable to divorce and legal separation. The laws available are confined to the laws with which the spouses have a close connection. The rule includes certain procedural requirements to ensure that the spouses are aware of the consequences of their choice. [Explanatory Memorandum COM) (2006) final]

Article 20b Brussels II Regulation (2003)

In the absence of choice by the parties, the applicable law would be determined on the basis of a scale of connecting factors, based in the first place on the habitual residence of the spouses. This uniform rule will ensure legal certainty and predictability. The introduction of harmonised conflict-of-law rules is likely to greatly reduce the risk of "rush to court" since any court seised within the Community would apply the law designated on the basis of common rules. The fact that the rule is based in the first place on the habitual residence of the spouses and, failing that, on their last habitual residence if one of them still resides there will result in the application of the law of the forum in the vast majority of cases. The problems relating to the application of foreign law will therefore be scarce. [Explanatory Memorandum COM) (2006) final]

Article 20c Brussels II Regulation (2003)

Although this is not explicitly stated in the text, the proposed Regulation is meant to be of universal application, meaning that the conflict-of-law rule can designate the law of a Member State of the European Union or the law of a third State. Where the law of another Member State is designated, the European Judicial Network in civil and commercial matters can play a role in assisting the courts on the contents of foreign law. [Explanatory Memorandum COM) (2006) final]

Article 20d Brussels II Regulation (2003)

To allow renvoi would jeopardise the objective of legal certainty. The designation of a law under the uniform conflict-of-law rules consequently means designating the substantive rules of that law and not its rule of private international law. [Explanatory Memorandum COM) (2006) final]

Article 20e Brussels II Regulation (2003)

The mechanism of the public policy exception allows the court to disregard the rules of the foreign law designated by the conflict-of-law rule where the application of the foreign law in a given case would be contrary to the public policy of the forum. The word "manifestly" incompatible means that the use of the public policy exception must be exceptional. [Explanatory Memorandum COM) (2006) final]

end