Comment on the Brussels II Regulation (2003)


CHAPTER III RECOGNITION AND ENFORCEMENT


SECTION 1 Recognition

The provisions of this Title reproduce Section 1 of Chapter III of Council Regulation (EC) No 1347/2000.

It has not been necessary to include Article 16 of Council Regulation (EC) No 1347/2000 on agreements with third countries. This is because preexisting agreements are already protected in accordance with Article 307 of the Treaty. As regards future agreements, which can only be concluded by the Community to the extent they may affect the Regulation or alter its scope in accordance with the AETR case law, these would take precedence over the Regulation even in the absence of a specific provision to this effect.


Article 21 Brussels II Regulation (2003)

Article 21 Recognition of a judgment
1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.
3. Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised. The local jurisdiction of the court appearing in the lisd by each Member State to the Commission pursuant to Article 68 shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought.
4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

This Article establishes in paragraph 1 the principle of automatic recognition that does not imply any specific procedure of judgments to which Article 13 applies. It should be noted that the judgment must be a final one against which no further appeal lies in the Member State of origin. Paragraph 1 also provides that authentic instruments and court settlements shall be recognized under the same conditions as judgments. In addition, the provisions on recognition and enforcement also cover costs and expenses.

Paragraph 2 aims at the effect most frequently sought by European citizens. The main effect of automatic recognition is that no procedures are required for the updating of civil status documents in another Member State, the existence of a final judgment given in another Member State being sufficient for the purpose. This means that the civil-status records can be updated without the need for any additional decision, which saves time and money.

For purposes of proceedings on recognition or non-recognition, paragraph 3 refers to the same procedures as for a declaration of enforceability of a judgment on parental responsibility in Section 2. Local jurisdiction is determined by reference to the internal law of the Member State where proceedings are brought. However, in the case of rights of access or the return of the child certified pursuant to Chapter IV, Section 3, it would no longer be possible to apply for non-recognition. The recognition of a foreign judgment may be appealed to also during legal proceedings as an incidental question.

[see comment]

Borras Report 1998: Article 14 Recognition [Art. 21 BR 2003]

62. The provisions in this Article are based on Article 26 of the 1968 Brussels Convention. However, there is a fundamental difference in view of the matters covered by this Convention, and it relates to the effects of recognition. While there was agreement on the provision in paragraph 1 which involves automatic recognition, in the sense of recognition that does not imply any specific procedure, in all the Member States of judgments given in each one, the same level of agreement did not exist on the effects which should follow, particularly in relation to the most important issue, the updating of civil-status records. (Borras (1998) C 221/49)

63. That is why, after lengthy discussion, agreement was reached on Article 14(2) which requires no special procedure for updating the civil-status records of a Member State, the existence of a final judgment relating to divorce, legal separation or marriage annulment given in another Member State being sufficient for the purpose. The recognition involved is therefore not judicial but is equivalent to recognition for the purposes of civil-status records.

In the wording of this provision account was taken of Article 8 of the Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages, prepared in the International Commission on Civil Status. That is an important change and it will be much appreciated by European citizens since that is the effect most frequently sought and, once the Convention enters into force, updating civil-status records without the need for any additional decision will save time and money, thus representing a considerable advance over the 1968 Brussels Convention. It should be noted that the judgment must be a final one against which no further appeal lies, and that too is different from the 1968 Brussels Convention situation. See Article 32(3) [was 33(3)] regarding the documents to be presented. (Borras (1998) C 221/49/50)

64. As specified in Article 1 in relation to the scope of the Convention in terms of matters covered, it is sufficient to repeat here that the recognition referred to in this Article does not affect questions of the fault of spouses, marriage contract, maintenance or any other consequences of an economic or any other nature included in the same judgment. It is a question, therefore, only of recognition of the dissolution of the link of marriage or of the legal separation (see paragraph 22). For provisional measures, see Article 12(59). (Borras (1998) C 221/50)

65. As specified in the 1968 Brussels Convention, the recognition of the foreign judgment may be accepted or contested, and the procedure set out in paragraph 3 for enforcement will be followed. The concept of an ‘interested party’ entitled to apply for a decision as to whether the judgment should or should not be recognised must be interpreted in the broad sense under the national law applicable and may include the public prosecutor or other similar bodies where permitted in the State in which the judgment is to be recognised or contested. (Borras (1998) C 221/50)

66. The provision on recognition as an incidental question comes from Article 26 of the Brussels Convention with some amendments. It is for reasons of simplicity that the courts hearing the main case also have jurisdiction to determine recognition of a judgment of incidental form. (Borras (1998) C 221/50)

 


Article 22 Brussels II Regulation (2003)

Article 22 Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment
A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally;
(c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or
(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Article 22 sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while Article 23 sets out the grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings. The reason for the division is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases.

In line with normal practice, point (a) mentiones the first ground of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, namely the fact that it is manifestly contrary to public policy in the State in which recognition is sought. But it needs to be borne in mind, too, that Article 19 of the Brussels II Regulation 2003 prevents a judgment being reviewed as to its substance, Article 18 prohibits non-recognition of a foreign judgment because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts and Article 17 states that the test of public policy may not be applied to the rules relating to jurisdiction.

Point (b) includes the ground of non-recognition where the judgment was given in default of appearance, if the respondent was not notified properly and in good time to defend himself. But the judgment must be recognised, as is the normal consequence of the proper operation of the Regulation, where the respondent has accepted it unequivocally, as for instance by remarrying.

Irreconcilability of the judgment with other judgments is dealt with in two separate provisions, points (c) and (d). There is no requirement for the objective and the ground to be identical.

Point (c) refers to irreconcilability with a judgment given in proceedings between the same parties in the Member State in which recognition is sought, regardless of whether the judgment in the latter State predates or postdates the judgment given in the State of origin.

Point (d) relates to cases in which the judgment, whether given in another Member State or in a non-member State between the same parties, meets two conditions:
- it was given earlier, and
- it fulfils the conditions necessary for its recognition in the Member State in which recognition is sought(COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 15(1) Grounds of non-recognition [Art. 22 BR 2003]

67. This Article corresponds to Article 27 of the 1968 Brussels Convention and contains the grounds for non-recognition or non-enforcement. In view of the matter dealt with in the Convention, the grounds of non-recognition provided for in Article 23 of the 1996 Hague Convention also had to be taken into consideration in order to facilitate harmonious application of both Conventions when the time comes. Whereas some States wanted the grounds of non-recognition to be optional, most States were in favour of making them compulsory as in Article 27 of the 1968 Brussels Convention. (....)

68. The structure of this Article [now Art. 22 and 23 BR 2003] may seem rather surprising. Paragraph 1 [now Art. 22 BR 2003] sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while paragraph 2 [now Art. 23 BR 2003] sets out the grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings. The reason for the division is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases. It was therefore advisable to split the grounds of non-recognition into two paragraphs. (Borras (1998) C 221/50)

69. In line with normal practice, the first ground of non-recognition of judgments relating to a divorce, legal separation or marriage annulment is the fact that it is manifestly contrary to public policy in the State in which recognition is sought, something Member States do not want to give up even though experience demonstrates that the corresponding provision in Article 27(1) of the Brussels Convention has been of no practical significance. Nevertheless, sensitivity regarding the basic principles that justify the considerations of public order is less in cases involving property than in family cases. It needs to be borne in mind, too, that Article 19 [was 18] of this Convention prevents a judgment being reviewed as to its substance, Article 18 [was 17] prohibits non-recognition of a foreign judgment because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts and Article 17 [was 16(3)] states that the test of public policy may not be applied to the rules relating to jurisdiction. Nevertheless, it should be noted that the States are extremely sensitive on this issue on account of the major discrepancies between their laws on divorce. Those Member States in which dissolution of the marriage bond is easiest fear that their judgements may not be recognised in Member States with more stringent rules. To provide adequate guarantees for both groups of States, a system is being established whereby, on the one hand, non-recognition on grounds that recognition is manifestly contrary to the public policy of the State in which recognition is sought is retained (Article 15(1)(a)) and, on the other hand, Article 18 [was 17] stipulates that recognition may not be refused on the grounds that divorce, legal separation or marriage annulment would not be allowed on the same facts (see commentary on [this] Article [ ]). At the time of recognition, the court having jurisdiction must examine the judgment given in the State of origin in the light of the provisions referred to in the preceding paragraph. That solution is based on the arrangement under the 1970 Hague Convention on the Recognition of Divorces and Legal Separations to which some Member States are party. (Borras (1998) C 221/51)

On this issue, see also the statement by Ireland (in connection with Article 46(2), with due regard for the provision in Article 9 which refers to examination as to jurisdiction by the court of origin).

70. Paragraph 1(b) includes the ground of non-recognition which gave rise to the highest number of cases of non-recognition under the 1968 Brussels Convention (Article 27(2)) and therefore to the largest number of problems and questions put to the Court of Justice in relation to grounds of non-recognition. We are referring to non-recognition in cases where the judgment was given in default of appearance, if the respondent was not notified properly and in good time to defend himself. A point has been added to the original provision. It provides that the judgment must be recognised, as is the normal consequence of the proper operation of the Convention, where the respondent has accepted it unequivocally, as for instance by remarrying. (Borras (1998) C 221/51)

71. Irreconcilability of the judgment with other judgments is dealt with in two separate provisions, points (c) and (d) of paragraph 1. In contrast to the provisions of Article 27(5) of the 1968 Brussels Convention, there is no requirement for the objective and the ground to be identical.

The first refers to irreconcilability with a judgment given in proceedings between the same parties in the Member State in which recognition is sought, regardless of whether the judgment in the latter State predates or postdates the judgment given in the State of origin. A special problem arises when one judgment is on divorce and the other is on separation. An example may clarify the situation. Consider the case of a separation judgment given in State A and a subsequent divorce judgment given in State B. If recognition of the second judgment is sought in State A, recognition cannot be refused on grounds of its irreconcilability with the judgment given previously in State A, since separation may be considered a preliminary to divorce and, consequently, there would be not conflict with a subsequent divorce judgment.

However, if recognition of the separation judgment given in State A were sought in State B, where the marriage had been dissolved by a divorce judgment, the judgment would have to be rejected since the separation judgment had been replaced by a divorce judgment in State B. The advantage of this interpretation is that it guarantees that the matrimonial situation of the spouses will be considered the same throughout the 15 Member States. Any other interpretation would mean that the spouses could be considered divorced in 14 States but only as legally separated in State A. The second provision relates to cases in which the judgment, whether given in another Member State or in a non-Member State between the same parties, meets two conditions: (a) it was given earlier; (b) it fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. An example may clarify the situation to which this provision refers. In non-member State E a separation judgment is given that meets the requirements for recognition in State B. Subsequently, a decision granting the same spouses a divorce is given in Member State C, requesting recognition of that judgment in Member State B. In this situation, the divorce judgment given in Member State C is not irreconcilable with the previous legal separation judgment given in non-member State E and is therefore recognised in Member State B. In the opposite case, that is to say if a divorce judgment is given in non-member State E and subsequently a separation judgment is given in Member State C, Member State B will refuse to recognise Member State C’s judgment on the ground that it is irreconcilable with a divorce judgment given in non-member State E which meets the requirements for recognition in Member State B. (Borras (1998) C 221/51-52)


Article 23 Brussels II Regulation (2003)

Article 23 Grounds of non-recognition for judgments relating to parental responsibility
A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
or
(g) if the procedure laid down in Article 56 has not been complied with.

Article 23 covers the grounds of non-recognition of judgments relating to parental responsibility understood in the broad sense and therefore including not only court judgments but also decisions of whatever kind by whatever authority provided that they are closely connected with the divorce.

The provision on public policy, which also appears in point (a) makes it impossible to refuse recognition purely because the judgment is manifestly contrary to public policy and requires that consideration be given to taking the best interests of the child into account as well. Default of appearance is dealt with in point (c) and the comments on point (b) of Article 22 also apply.

The grounds of non-recognition include (in point (d)) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard.

Finally, points (e) and (f) deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 15(2) Grounds of non-recognition [Art. 23 BR 2003]

68. The structure of this Article [now Art. 22 and 23 BR 2003] may seem rather surprising. Paragraph 1 [now Art. 22 BR 2003] sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while paragraph 2 [now Art. 23 BR 2003] sets out the grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings. The reason for the division is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases. It was therefore advisable to split the grounds of non-recognition into two paragraphs. (Borras (1998) C 221/50)

(69. - 71. ...)

72. Paragraph 2 covers the grounds of non-recognition of judgments relating to parental responsibility understood in the broad sense and therefore including not only court judgments but also decisions of whatever kind by whatever authority provided that they are closely connected with the divorce. In addition to the general comment above on the justification for the separation of these grounds of non-recognition from those relating to matrimonial judgments, the grounds included merit some further comment. (Borras (1998) C 221/52)

73. The provision on public policy, which also appears in paragraph 2(a), corresponds exactly to the provision in Article 23(2)(d) of the 1996 Hague Convention, in that it makes it impossible to refuse recognition purely because the judgment is manifestly contrary to public policy and requires that consideration be given to taking the best interests of the child into account as well.

Default of appearance is dealt with in point (c) and the comments on point (b) of paragraph 1 also apply.

As in the 1996 Hague Convention (Article 23(2)(b) and (c)), the grounds of non-recognition include (in points (b) and (d)) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard. The child must be heard in accordance with the rules applicable in the Member State concerned, which must include the rules in the United Nations Convention of 20 November 1989 on the Rights of the Child and in particular Article 12 thereof, which provides:

‘1. The States party shall guarantee any child who is in a position to form a judgment of his own the right to express an opinion freely on any matter affecting him, and that due account is taken of the child’s opinion, in the light of his age and maturity.

2. To that end the child shall be given an opportunity to be heard in any legal or administrative proceedings affecting him, either directly or through a representative or an appropriate body, in accordance with the rules of procedure of national law’.

Finally, points (e) and (f) deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-Member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity. The commentary on Article 3(3) also needs to be taken into account in this connection (end of jurisdiction of the court hearing the matrimonial proceedings in matters of parental responsibility). (Borras (1998) C 221/52)


Article 24 Brussels II Regulation (2003)

Article 24 Prohibition of review of jurisdiction of the court of origin
The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

The court in which recognition is sought may not review the jurisdiction of the court of origin nor may it apply the test of public policy to the rules relating to jurisdiction set out in Articles 3 to 14 (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Articel 17 (was 16) Prohibition of revieuw of jurisdiction of court of origine [Art. 24 BR 2003]

75. This provision means that the Member State in which recognition is sought must examine the grounds of jurisdiction on the basis of which the judgment in the Member State of origin has been adopted. The court is, however, subject to certain limitations in the matter. Under paragraph 2, the court in which recognition is sought is bound by the findings of fact on which the court of the Member State of origin based its jurisdiction. Secondly, under paragraph 3 it may not review the jurisdiction of the court of origin nor may it apply the test of public policy to the rules relating to jurisdiction set out in Articles 2 to 8. (Borras (1998) C 221/52-53)


Article 25 Brussels II Regulation (2003)

Article 25 Differences in applicable law
The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.

This provision is to be seen in conjunction with Article 22 (1)(a). It is designed to meet the concerns of States with more tolerant internal provisions on divorce who fear that the judgments given by their courts might not be recognised in another State because they are based on grounds unknown in the legislation of the State in which recognition is sought. The provision therefore limits indiscriminate use of public policy.

The 'law' of the Member State in which recognition is sought includes both internal substantive provisions and private international law provisions. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 18 (was 17) Differences in applicable law [Art. 25 BR 2003]

76. This provision is to be seen in conjunction with Article 15(1)(a) [now Art. 22(1)(a) BR 2003] (see commentary on the provision). It is designed to meet the concerns of States with more tolerant internal provisions on divorce who fear that the judgments given by their courts might not be recognised in another State because they are based on grounds unknown in the legislation of the State in which recognition is sought. The provision therefore limits indiscriminate use of public policy.

An example might be legal separation as a basis for divorce: if in the State of origin divorce can be granted after a separation of two years, an incorrect interpretation of the public policy of the State in which recognition is sought, where the law requires five years of separation, could result in the refusal of recognition.

The drafting difficulties encountered in the Working Party resulted in a text which refers only to the ‘law’ of the Member State in which recognition is sought and the word ‘internal’ has been deleted: the reason for the deletion was to include both internal substantive provisions and private international law provisions. The objective is simply to ensure that differences between legislation in the Member States cannot result in non-recognition and, ultimately, the very purpose of the Convention being turned into a dead letter. (Borras (1998) C 221/53)


Article 26 Brussels II Regulation (2003)

Article 26 Non-review as to substance
Under no circumstances may a judgment be reviewed as to its substance.

This is the classic prohibition on review as to substance at the time of recognition or enforcement. It is a necessary rule in order not to subvert the meaning of the exequatur procedure, which does not mean allowing the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin.

The object of the provision is to prevent the measures from being reviewed in the exequatur procedure, although it may in no case lead to their being set in stone.

The basic principle is that the Member State in which recognition is sought may not review the original judgment, which is the logical consequence of a double Convention. However, a change in circumstances may lead to a need for revision of the protective measures, as always happens when we are dealing with situations which, despite having a degree of permanence in time, may need modification, which would be the responsibility of the competent authority regarding parental responsibility. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 19 (was 18) Non-review as to substance [Art. 26 BR 2003]

77. This is the classic prohibition on review as to substance at the time of recognition or enforcement. The same provision appears in Article 29 of the 1968 Brussels Convention and in other Conventions on enforcement. It is a necessary rule in Conventions of this kind in order not to subvert the meaning of the exequatur procedure, which does not mean allowing the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin.

78. The inclusion of this rule in this Convention led to some reluctance by certain delegations in so far as it could mean making the measures adopted in connection with parental responsibility immovable. The object of the provision is to prevent the measures from being reviewed in the exequatur procedure, although it may in no case lead to their being set in stone. The basic principle is that the Member State in which recognition is sought may not review the original judgment, which is the logical consequence of a double Convention. However, a change in circumstances may lead to a need for revision of the protective measures, as always happens when we are dealing with situations which, despite having a degree of permanence in time, may need modification. In that sense, for instance, Article 27 of the 1996 Hague Convention makes it clear that the prohibition on review as to substance does not prevent such review as is necessary of the protective measures adopted. In this case too, the provision in this Article must be understood as being without prejudice to the adoption by the competent authority of a new ruling on parental responsibility when a change in circumstances occurs at a later stage. (Borras (1998) C 221/53)

 


Article 27 Brussels II Regulation (2003)

Article 27 Stay of proceedings
1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.
2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.

This provision must be seen in conjunction with Article 21(2) , providing that automatic recognition and in particular the updating of civil-status records do not require any special procedure if the judgment of the State of origin is one against which no further appeal lies under the law of that Member State.

This Article allows the court of a Member State in which recognition is sought to stay the proceedings if an ordinary appeal against the judgment has been lodged. For stay of enforcement, see Article 28 (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 20 (was 19) Stay of proceedings [Art. 27 BR 2003]

79. This provision must be seen in conjunction with the provisions of the Convention (specifically Article 14(2) [is now Art. 21(2) BR 2003]) providing that automatic recognition and in particular the updating of civil-status records do not require any special procedure if the judgment of the State of origin is one against which no further appeal lies under the law of that Member State.

This Article allows the court of a Member State in which recognition is sought to stay the proceedings if an ordinary appeal against the judgment has been lodged. For stay of enforcement, see Article 28 [was 27 BC and is now Art. 35 BR 2003] (and the commentary thereon in paragraph 94). In the case of judgments given in Ireland or the United Kingdom, provision is made for special features of their national legislation. (Borras (1998) C 221/53-54)

 


SECTION 2 Application for a declaration of enforceability


Article 28 Brussels II Regulation (2003)

Article 28 Enforceable judgments
1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

This provision governs the need for exequatur if a judgment given in one Member State is to be enforced in another. All that is required is that the courts listed decide, on the application of any interested party, on the possibility of enforcement in the State in which recognition is sought, a possibility which can only be refused on the grounds listed in Articles 22 (matrimonial matters ) and 23 (parental responsibility) in connection with Article 24. While, for matrimonial matters, recognition procedures are sufficient, in view of the limited scope of the Regulation and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses.

'Interested party', for the purposes of the application, covers not only the spouses or children but must also include the public authority (Public Prosecutor's Office or similar authority) in States where that is possible.

The purpose of this provision is solely to make it possible to enforce a judgment given in another State in relation to parental responsibility since the procedure for enforcement in the strict sense is governed by each State's internal law. Thus, once exequatur has been obtained in a State, that State's internal law will govern the practical measures for enforcement.

The various provisions which follow are intended to establish a procedure common to all the Member States for obtaining exequatur which will replace the relevant provisions in internal legislation or in other Conventions (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 21 (was 20) Enforceable judgments [Art. 28 BR 2003]

80. This provision governs the need for exequatur if a judgment given in one Member State is to be enforced in another. All that is required is that the courts referred to in the subsequent Articles decide, on the application of any interested party, on the possibility of enforcement in the State in which recognition is sought, a possibility which can only be refused on the grounds listed in Articles 15 (grounds of non-recognition) and 16 (see Article 24 [was 23(2)] and the commentary thereon in paragraph 89). While, for matrimonial matters, recognition procedures are sufficient, in view of the limited scope of the Convention and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses.

‘Interested party’, for the purposes of the application, covers not only the spouses or children but must also include the public authority (Public Prosecutor’s Office or similar authority) in States where that is possible. (Borras (1998) C 221/54)

81. The purpose of this provision is solely to make it possible to enforce a judgment given in another State in relation to parental responsibility since the procedure for enforcement in the strict sense is governed by each State’s internal law. Thus, once the exequatur has been obtained in a State, that State’s internal law will govern the practical measures for enforcement.

The various provisions which follow are intended to establish a procedure common to all the Member States for obtaining exequatur which will replace the relevant provisions in internal legislation or in other Conventions. Paragraph 2 contains a provision taking account of the particular situation in the United Kingdom. (Borras (1998) C 221/54)


Article 29 Brussels II Regulation (2003)

Article 29 Jurisdiction of local courts
1. An application for a declaration of enforceability shall be submitted to the court appearing in the list notified by each Member State to the Commission pursuant to Article 68.
2. The local jurisdiction shall be determined by reference to the place of habitual residence of the person against whom enforcement is sought or by reference to the habitual residence of any child to whom the application relates. Where neither of the places referred to in the first subparagraph can be found in the Member State of enforcement, the local jurisdiction shall be determined by reference to the place of enforcement.

This provision is divided into two paragraphs: the first governs the type of authority with international jurisdiction for enforcement and the other refers to the court having local jurisdiction within that State. These provisions are applicable to enforcement and, via Article 21(3), as well as to recognition. The intention is to make matters easier for the European citizen, who will know from the beginning which court is to be seised.

Paragraph 1 lists the authorities having international jurisdiction. Each Member State has made clear whcih type of national court is competent to admit an application for the enforcement of a foreign judgment. In the Netherlands an application for exequatur has to be lodged at the Summary Judge of the District Court.

Paragraph 2 provides that jurisdiction will lie with the local court of the place of the habitual residence of the person against whom enforcement is sought or of the place of habitual residence of any child to whom the application relates. It was noted, however, that there could be situations in which neither the person against whom enforcement was sought nor the child was habitually resident in a Member State, and th second sentence provides that in such cases jurisdiction lies with the local court of the place of enforcement.

An action to have a judgment given in another Member State recognised or not recognised, is dealt with in Article 21(3), that refers as well to the list of Article 68 and leaves the matter of local jurisdiction to the internal legislation of the State in which the application is made (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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Borras Report 1998: Article 22 (was 21) Jurisdiction of local courts [Art. 29 BR 2003]

82. This provision is based on Article 32 of the 1968 Brussels Convention but, unlike that Article, it is divided into three paragraphs: the first governs the type of authority with international jurisdiction for enforcement and the other two refer to the court having jurisdiction within that State. These provisions are applicable to recognition, via Article 14(3), as well as to enforcement. The intention is to make matters easier for the European citizen, who will know from the beginning which court is to be seised. (Borras (1998) C 221/54)

83. Paragraph 1 lists the authorities having international jurisdiction. It follows the same system as in Article 32(1) of the 1968 Brussels Convention.

84. The solution differs from the one adopted in the 1968 Brussels Convention in relation to determining the court with local jurisdiction within the Member State. The reason for this is that, in relation to judgments both in matrimonial matters and on custody, there were major differences between the positions adopted since for some the rule ought to be deleted whereas for others its existence was vital, even though its content was open to discussion.

The solution ultimately adopted was to distinguish between two separate scenarios, depending on whether the application is for enforcement or for recognition. The possibilities offered by the 1968 Brussels Convention are thus extended. Thus, what constitutes the general rule is stated first, i.e. the rule concerning an application for exequatur. Paragraph 2(a) provides that jurisdiction will lie with the local court of the place of the habitual residence of the person against whom enforcement is sought or of the place of habitual residence of any child to whom the application relates. It was noted, however, that there could be situations in which neither the person against whom enforcement was sought nor the child was habitually resident in a Member State, and point (b) provides that in such cases jurisdiction lies with the local court of the place of enforcement.

In the second scenario, where there was action to have a judgment given in another Member State recognised or not recognised, paragraph 3 [now Art. 21 (3) BR 2003] leaves the matter to the internal legislation of the State in which the application is made. (Borras (1998) C 221/54-55)


Article 30 Brussels II Regulation (2003)

Article 30 Procedure
1. The procedure for making the application shall be governed by the law of the Member State of enforcement.
2. The applicant must give an address for service within the area of jurisdiction of the court applied to. However, if the law of the Member State of enforcement does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.
3. The documents referred to in Articles 37 and 39 shall be attached to the application.

This Article and those following it govern the various aspects of the procedure to be followed for enforcement of judgments. The arrangements are based on a procedure at the request of a party which will be a Community one, that is to say that the same procedure, which will be fast and simple, will apply in all Member States, which is an undoubted advantage. This provision deals with the action to be taken by the applicant.

In the first place, it provides that the detailed rules for submitting the application will be determined in accordance with the internal law of the State in which enforcement is sought (paragraph 1). This means that national legislation must be consulted for the information to appear in the application, the number of copies to be submitted to the court, the authority with which they are to be deposited, the language in which they are to be drawn up and also whether or not a lawyer or any other representative or agent needs to be involved.

Paragraph 2 also requires that the applicant give an address for service or else appoint a representative ad litem within the area of jurisdiction of the court applied to. That provision is of interest both as to the notice of the judgment to the applicant (Article 32) and the appeal against the judgment granting exequatur, which will be contradictory (Article 33).

Finally, paragraph 3 requires that the documents referred to in Articles 37 and 39 shallbe attached to the application (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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Article 31 Brussels II Regulation (2003)

Article 31 Decision of the court
1. The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application.
2. The application may be refused only for one of the reasons specified in Articles 22, 23 and 24.
3. Under no circumstances may a judgment be reviewed as to its substance.

Paragraph 1 establishes the unilateral, ex parte, nature of the exequatur procedure, in which the person against whom enforcement is sought will not be entitled to make any submissions on the application, even in exceptional cases, since such submissions would systematically change the procedure from a unilateral into a contradictory one. The rights of defence are respected by allowing the person against whom enforcement is sought to appeal against the decision granting enforcement.

The court may rule only on enforcement and may not at this stage review custody measures: Articles 60 and 61 would prevent that. The court must give its decision 'without delay' but no time limit is set since such a limit does not exist in judicial practice and no sanction would be possible if it were not met. Since the general rule is the grant of exequatur on the basis of the mutual confidence created by the assumption that all courts within the Community will have applied the Regulation correctly, the procedure in this instance remains unilateral and rapid given that there is provision for appeal in the later Articles of the Regulation in cases in which there are problems.

Paragraph 2 stipulates that the application may be refused only for one of the reasons specified in Articles 22 (matrimonial matters), 23 (parental responsibility) and 24 (both) and paragraph 3 indicates that under no circumstances a foreign judgment maybe reviewed as to its substance (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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ECJ 11 July 2008 C-195/08 PPU
3. Article 31(1) of Regulation No 2201/2003, in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for non-recognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make such submissions (see also Opinion of Advocate General Sharpston of 1 July 2008)

 


Article 32 Brussels II Regulation (2003)

Article 32 Notice of the decision
The appropriate officer of the court shall without delay bring to the notice of the applicant the decision given on the application in accordance with the procedure laid down by the law of the Member State of enforcement.

This Article provides that the application will be notified in accordance with the law of the State in which enforcement is sought. It illustrates the importance of an address for service or appointment of a representative ad litem (see Article 30 ) and has implications for the lodging of appeals referred to in the Articles that follow (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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Article 33 Brussels II Regulation (2003)

Article 33 Appeal against the decision
1. The decision on the application for a declaration of enforceability may be appealed against by either party.
2. The appeal shall be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68.
3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.
4. If the appeal is brought by the applicant for a declaration of enforceability, the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 18 shall apply.
5. An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. No extension of time may be granted on account of distance.

Initially there were two separate provisions: one concerning the possibility to appeal against a judgment which authorised the requested enforcement (Articl 26 BC, later Article 27 BR 2000) and one regarding the possibility of appeal by the applicant when enforcement was refused (Article 27 BC, later Article 28 BR 2000). This changed already under the Brussels II Regulation 2000, when the two provisions were put together in Article 26. As of then the decision on the application for a declaration of enforceability may be appealed against by either party. The appeal has to be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68. Unlike the application procedure to give a judgment to authorise the enforcement of another judgment from a different Member State, which procedure is unilateral, in the sense that only the applicant is involved, and not the person against whom enforcement is sought, the appeal itself is always dealt with in accordance with the rules governing procedure in contradictory matters. This topic needs to be taken into account particularly with regard to the language differences, which must not, under any circumstances, equate 'contradictory' with 'contentious'. In some States the term means contentious as well as contradictory, whereas such is not the case in others. Hence, although the procedure must always be contradictory, whether or not it is also contentious will depend on internal law, in the same way as the law of the forum determines the procedure (lex fori regit processum).

But also after the two provisions were put together in a new Article 26, there still remained some differences between an appeal against a judgment which authorised the enforcement and an appeal against a judgement which refused the enforcement. Since Article 33 of the Brussels II Regulation 2003 corresponds to Article 26 of Council Regulation (EC) No 1347/2000 (Brussels II Regulation 2000), these differences are still here today.

If the appeal is brought by the applicant for a declaration of enforceability, thus in case of an appeal against a judgment to refuse the requested enforcement, the party against whom enforcement is sought, shall be summoned to appear before the appellate court. If such person fails to appear, the court with jurisdiction has to examine of its own motion if it has jurisdiction, this in conformity with Article 18 of the Brussels II Regulation 2003, whether the party against whom enforcement is sought, resides in a Member State or in a non-member State. The court with jurisdiction shall stay the proceedings 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.

Although the appeal is governed by the rules of procedure in contradictory matters of the Member State of the court of appeal, there is no time limit for appeal when the applicant appeals against a judgement to refuse the enforcement of the judgment from the court of another Member State. The reason is that, if the applicant's application has been rejected, he has the right to appeal when he thinks fit and when, for example, he is able to assemble the relevant documentation. Once again, the objective of the Regulation denotes the difference in the procedure to be followed: the normal consequence is for the judgment to be enforced and, accordingly, after the first decision, taken rapidly by the unilateral procedure, every opportunity must be given for this aim to be achieved.

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

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Article 34 Brussels II Regulation (2003)

Article 34 Courts of appeal and means of contest
The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each Member State to the Commission pursuant to Article 68.

The only means of contesting a judgment given on appeal is in cassation or by any other top-level appeal procedure in States which do not have a cassation system. The objective of limiting the avenues of appeal in this way is to avoid unnecessary appeals which could be unfounded delaying manoeuvres. The ultimate purpose is to safeguard the objective of the Regulation which is to facilitate free movement of judgments (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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Article 35 Brussels II Regulation (2003)

Article 35 Stay of proceedings
1. The court with which the appeal is lodged under Articles 33 or 34 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin, or if the time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged.
2. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

In some cases it may happen that the judgment in the court of origin is enforceable even though an appeal has been initiated or the time limit for appeal has not come to an end. In such circumstances, it is desirable to avoid complicating the situation which would result from the grant of exequatur of the judgment. This provision therefore provides that the court with which the appeal is lodged may stay the proceedings if an ordinary appeal has been lodged against the decision in the Member State of origin or if the time for such appeal has not yet expired, but is not obliged to do so. The stay of proceedings can only take place on the application of the appellant. For stay of recognition, see Article 27 (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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Article 36 Brussels II Regulation (2003)

Article 36 Partial enforcement
1. Where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them, the court shall authorise enforcement for one or more of them.
2. An applicant may request partial enforcement of a judgment.

This Article deals with two separate issues.

Paragraph 1 deals with the case where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them; in that case the court will authorise enforcement for one or more of them.

The second hypothesis, in paragraph 2, is that the applicant may request only partial enforcement of a judgment (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

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