Comment on the Brussels II Regulation (2003)

SECTION 3 Provisions common to Sections 1 and 2

Article 37 Brussels II Regulation (2003)

Article 37 Documents 1. A party seeking or contesting recognition or applying for a declaration of enforceability shall produce: (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and (b) the certificate referred to in Article 39. 2. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: (a) the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document; or (b) any document indicating that the defendant has accepted the judgment unequivocally.

Paragraph 1 refers to the documents which must be produced in any event by a party seeking or contesting recognition or applying for enforcement of a judgment. All enforcement treaties require a copy of the judgment which satisfies the conditions necessary to establish its authenticity in accordance with the locus regit actum rule, that is to say the law of the place in which the judgment was given. Where appropriate, a document must also be produced showing that the applicant is in receipt of legal aid in the State of origin.

Paragraph 2 refers to the documents which must be produced in the case of a judgment given in default. In cases of non-recognition, proof must be provided in the required form that the written application or a similar document was notified or, in the case of a judgment in divorce, legal separation or marriage annulment proceedings, that the respondent has unequivocally accepted the content of the judgment.

Paragraph 2(b) is worded in such a way as to be consistent with Article 22(b) and Article 23(c) (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

Article 38 Brussels II Regulation (2003)

Article 38 Absence of documents 1. If the documents specified in Article 37(1)(b) or (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production. 2. If the court so requires, a translation of such documents shall be furnished. The translation shall be certified by a person qualified to do so in one of the Member States.

In order to facilitate attainment of its objective, this Article allows the court to specify a time for the production of documents, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production (e.g. where documents have been destroyed). This possibility is allowed only for documents specified in Article 37 (1)(b) (2) .

This provision must be seen in conjunction with the provision in Article 30 regarding the consequences if the application for exequatur is not supported by the documents required in earlier Articles. If, despite the mechanisms put in place, the documents presented were insufficient and the court did not succeed in obtaining the information desired, it could declare the application inadmissible.

In line with the simplification aimed at in the Regulation, a translation will be necessary only if the court so requires. In addition, the translation can be certified by a person qualified to do so in any of the Member States and not necessarily in the State of origin or the State in which enforcement is sought. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

Article 39 Brussels II Regulation (2003)

Article 39 Certificate concerning judgments in matrimonial matters and certificate concerning judgments on parental responsibility The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility).

In addition to the documents required under Article 37, the party applying for enforcement must also produce documents which establish that, according to the law of the Member State of origin, the judgment is enforceable and has been served. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

SECTION 4 Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child

This Section does away with the exequatur in the Member State of enforcement for judgments that have been certified in the Member State of origin. As a result, the judgment shall be treated for enforcement purposes as if it were given in the Member State of enforcement.

The procedural requirements that must be met for certification concern the hearing of the child and default judgments, thus corresponding to the grounds of non-recognition in Article 23(b)(c).

As regards default judgments, a distinction is drawn between rights of access and the return of the child. On the one hand, abolishing exequatur for rights of access does not apply to default judgments (the alternative would have been to set out minimum standards on the service of documents). On the other hand, this is not a concern in cases of child abduction given their nature as well as the elaborate cooperation mechanism foreseen in Chapter III.

As regards Article 23 (e)(f), it should always be possible to invoke the existence of an irreconcilable later judgment at the enforcement stage under the law of the Member State of enforcement. This is the case today, for instance, where the second judgment is issued after the first judgment has obtained the exequatur but before any action for enforcement has been undertaken.

As regards Article 23 (a), the ground of public policy is not expected to be invoked often for the non-recognition of judgments under the Brussels II Regulation 2003. Should Member States have specific concerns about situations where this may still be relevant, they can make specific proposals in this respect.

As regards the right to be heard of other holders of parental responsibility (Article 23(d)), their views would normally be taken into account in both rights of access and return cases. Should this not have been the case, the original judgment can be appealed and may be modified accordingly.

Article 40 Brussels II Regulation (2003)

Article 40 Scope 1. This Section shall apply to: (a) rights of access; and (b) the return of a child entailed by a judgment given pursuant to Article 11(8). 2. The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter.

This Section goes beyond the scope of the French initiative on rights of access to also apply to the return of the child. This is an essential element of the solution to child abduction cases put forth in Chapter III.

With respect to rights of access, the scope has been limited to parents, as national laws differ considerably on the issue of rights of access of holders of parental responsibility other than parents.

Should a judgment not benefit from certification pursuant to this Section, it may still be recognized and enforced by applying the provisions of Sections 1 and 2. This could, for instance, concern a default judgment on rights of access.

[see comment]

Article 41 Brussels II Regulation (2003)

Article 41 Rights of access 1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal. 2. The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if: (a) where the judgment was given in default, the person defaulting was 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, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally; (b) all parties concerned were given an opportunity to be heard; and (c) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. The certificate shall be completed in the language of the judgment. 3. Where the rights of access involve a cross-border situation at the time of the delivery of the judgment, the certificate shall be issued ex officio when the judgment becomes enforceable, even if only provisionally. If the situation subsequently acquires a cross-border character, the certificate shall be issued at the request of one of the parties.

Paragraph 1 states the basic principle whereby a special procedure in the Member State of enforcement shall not be required for the recognition and enforcement of judgments that have been certified in accordance with the provisions of this Section.

Paragraph 2 sets out the relevant procedural requirements, namely that the judgment was not given in default of appearance and that the child was given an opportunity to be heard having regard to his or her age and maturity. The standard form in Annex VI must be used for the certificate.

[see comment]

Article 42 Brussels II Regulation (2003)

Article 42 Return of the child 1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures. The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)). The certificate shall be completed in the language of the judgment.

Paragraph 1 states the basic principle whereby a special procedure in the Member State of enforcement shall not be required for the recognition and enforcement of judgments that have been certified in accordance with the provisions of this Section.

Paragraph 2 sets out the relevant procedural requirement, namely that the child was given an opportunity to be heard having regard to his or her age and maturity [see hearing the child]. The standard form in Annex VII must be used for the certificate [see new removal of the child to another Member State].

[see comment]

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ECJ 11 July 2008 C-195/08 PPU
1. Once a non-return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in Article 42 of Council Regulation (EC) No 2201/2003, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. Since no doubt has been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child.
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 43 Brussels II Regulation (2003)

Article 43 Rectification of the certificate 1. The law of the Member State of origin shall be applicable to any rectification of the certificate. 2. No appeal shall lie against the issuing of a certificate pursuant to Articles 41(1) or 42(1).

Article 44 Brussels II Regulation (2003)

Article 44 Effects of the certificate The certificate shall take effect only within the limits of the enforceability of the judgment.

Article 45 Brussels II Regulation (2003)

Article 45 Documents 1. A party seeking enforcement of a judgment shall produce: (a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and (b) the certificate referred to in Article 41(1) or Article 42(1). 2. For the purposes of this Article, — the certificate referred to in Article 41(1) shall be accompanied by a translation of point 12 relating to the arrangements for exercising right of access, — the certificate referred to in Article 42(1) shall be accompanied by a translation of its point 14 relating to the arrangements for implementing the measures taken to ensure the child's return. The translation shall be into the official language or one of the official languages of the Member State of enforcement or any other language that the Member State of enforcement expressly accepts. The translation shall be certified by a person qualified to do so in one of the Member States.

For enforcement purposes, the judgment must be accompanied by the certificate and, where necessary in the case of rights of access, by a translation of the certificate.

Only point 10 of the certificate concerning rights of access, which describes the arrangements for the exercise of rights and access, may have to be translated. No translation is required for the certificate concerning return.

SECTION 5 Authentic instruments and agreements

Article 46 Brussels II Regulation (2003)

Article 46 Authentic instruments and agreements Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments.

[see comment]

SECTION 6 Other provisions

Article 47 Brussels II Regulation (2003)

Article 47 Enforcement procedure 1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.

This Regulation does not touch on the enforcement procedure, which is to be carried out under the law of the Member State of enforcement. So when the Summary Judge of a Dutch District Court has issued a court order in which an enforceable foreign judgment is pronounced enforceable too in the Netherlands, the execution itself will take place according to Dutch national statutory provisions and rules for seizures, foreclosures and sales under execution and, if necessary, with regard to bankruptcies.

Article 48 Brussels II Regulation (2003)

Article 48 Practical arrangements for the exercise of rights of access 1. The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected. 2. The practical arrangements made pursuant to paragraph 1 shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter.

A distinction must be drawn between decisions on attributing rights of access and decisions on organizing their exercise. In the latter case the courts of the Member State of enforcement should have some leeway to make the necessary practical arrangements, to the extent that these are not foreseen in the original decision and that its essential elements are respected.

Article 49 Brussels II Regulation (2003)

Article 49 Costs The provisions of this Chapter, with the exception of Section 4, shall also apply to the determination of the amount of costs and expenses of proceedings under this Regulation and to the enforcement of any order concerning such costs and expenses.

[see comment]

Article 50 Brussels II Regulation (2003)

Article 50 Legal aid An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 21, 28, 41, 42 and 48 to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State of enforcement.

If the applicant has benefited in the State of origin from complete or partial legal aid or exemption from costs or expenses he will also be entitled, in the State in which enforcement is sought, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the State addressed (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Article 51 Brussels II Regulation (2003)

Article 51 Security, bond or deposit No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in another Member State on the following grounds: (a) that he or she is not habitually resident in the Member State in which enforcement is sought; or (b) that he or she is either a foreign national or, where enforcement is sought in either the United Kingdom or Ireland, does not have his or her ‘domicile' in either of those Member States.

This Article repeats the now well-established principle that no security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition or enforcement of a judgment given in another Member State (cautio judicatum solvi) (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Article 52 Brussels II Regulation (2003)

Article 52 Legalisation or other similar formality No legalisation or other similar formality shall be required in respect of the documents referred to in Articles 37, 38 and 45 or in respect of a document appointing a representative ad litem.

No legalisation or other similar formality is required for the documents referred to in Articles 32, 33, 34(2) [were 33, 34 and 35(2)] or for a document appointing a representative ad litem in the proceedings for obtaining exequatur. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

CHAPTER IV COOPERATION BETWEEN CENTRAL AUTHORITIES IN MATTERS OF PARENTAL RESPONSIBILITY

Article 53 Brussels II Regulation (2003)

Each Member State shall designate one central authority. These may be existing authorities entrusted with the application of international conventions in this area.

[see comment]

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ECJ 2 April 2009 C-523/07
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.

Article 54 Brussels II Regulation (2003)

Article 54 General functions The central authorities shall communicate information on national laws and procedures and take measures to improve the application of this Regulation and strengthening their cooperation. For this purpose the European Judicial Network in civil and commercial matters created by Decision No 2001/470/EC shall be used.

In the first place, as members of the European Judicial Network [14], the central authorities work on an information system and discuss issues of common interest and their methods of cooperation. In this context they may also develop best practices on family mediation or facilitate the networking of organizations working in this area.

[14] Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, OJ No L 174 of 27.6.2001, p. 25.

[see comment]

Article 55 Brussels II Regulation (2003)

Article 55 Cooperation on cases specific to parental responsibility The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to: (a) collect and exchange information: (i) on the situation of the child; (ii) on any procedures under way; or (iii) on decisions taken concerning the child; (b) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child; (c) facilitate communications between courts, in particular for the application of Article 11(6) and (7) and Article 15; (d) provide such information and assistance as is needed by courts to apply Article 56; and (e) facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.

Most importantly, central authorities assume an active role for the purpose of ensuring the effective exercise of rights of parental responsibility in specific cases, within the limits placed on their action by national law. Hence, they share information, give advice, promote mediation, and facilitate court-to-court communications. They play a particularly important role in cases of child abduction, where they have an obligation to locate and return the child, including where necessary to institute proceedings for this purpose.

[see comment]

Article 56 Brussels II Regulation (2003)

Article 56 Placement of a child in another Member State 1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement. 2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement. 3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State. 4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

[see comment]

Article 57 Brussels II Regulation (2003)

Article 57 Working method 1. Any holder of parental responsibility may submit, to the central authority of the Member State of his or her habitual residence or to the central authority of the Member State where the child is habitually resident or present, a request for assistance as mentioned in Article 55. In general, the request shall include all available information of relevance to its enforcement. Where the request for assistance concerns the recognition or enforcement of a judgment on parental responsibility that falls within the scope of this Regulation, the holder of parental responsibility shall attach the relevant certificates provided for in Articles 39, 41(1) or 42(1). 2. Member States shall communicate to the Commission the official language or languages of the Community institutions other than their own in which communications to the central authorities can be accepted. 3. The assistance provided by the central authorities pursuant to Article 55 shall be free of charge. 4. Each central authority shall bear its own costs.

The ability to work in other languages and the provision of services free of charge are very important considerations for facilitating access to the central authorities.

[see comment]

Article 58 Brussels II Regulation (2003)

Article 58 Meetings 1. In order to facilitate the application of this Regulation, central authorities shall meet regularly. 2. These meetings shall be convened in compliance with Decision No 2001/470/EC establishing a European Judicial Network in civil and commercial matters.

It is also foreseen to use the network to hold meetings of the central authorities.

[see comment]

CHAPTER V RELATIONS WITH OTHER INSTRUMENTS

Article 59 Brussels II Regulation (2003)

Article 59 Relation with other instruments 1. Subject to the provisions of Articles 60, 63, 64 and paragraph 2 of this Article, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of this Regulation which have been concluded between two or more Member States and relate to matters governed by this Regulation. 2. (a) Finland and Sweden shall have the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply, in whole or in part, in their mutual relations, in place of the rules of this Regulation. Such declarations shall be annexed to this Regulation and published in the Official Journal of the European Union. They may be withdrawn, in whole or in part, at any moment by the said Member States. (b)The principle of non-discrimination on the grounds of nationality between citizens of the Union shall be respected. (c) The rules of jurisdiction in any future agreement to be concluded between the Member States referred to in subparagraph (a) which relate to matters governed by this Regulation shall be in line with those laid down in this Regulation. (d) Judgments handed down in any of the Nordic States which have made the declaration provided for in subparagraph (a) under a forum of jurisdiction corresponding to one of those laid down in Chapter II of this Regulation, shall be recognised and enforced in the other Member States under the rules laid down in Chapter III of this Regulation. 3. Member States shall send to the Commission: (a) a copy of the agreements and uniform laws implementing these agreements referred to in paragraph 2(a) and (c); (b) any denunciations of, or amendments to, those agreements or uniform laws.

Paragraph 1 contains the general rule that this Regulation shall, for the Member States which are parties to it, supersede bilateral or multilateral conventions existing between the Member States. It does not list the Conventions which exist. The reason is that in relation to other conventions this Regulation is the basic instrument on the matters covered by it (Article 1). Conventions which apply in part to these matters are dealt with in Articles 60 and 61 and 63.

Finland and Sweden are party to the Agreement of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden which contains rules of international private law concerning marriage, adoption and custody. That Agreement was amended most recently by an Agreement adopted in Stockholm in 1973. As a result of the political agreement reached in December 1997 within the European Union, Article 59(2) refers to this particular situation, enabling the Nordic Member States to continue applying the Nordic Agreement in their mutual relations. However, the conditions laid down in that Article must be fulfilled.

Under Article 59(2) of the Regulation, each one of the Nordic Member States will have the right to declare that the 1931 Nordic Agreement will apply in whole or in part in their mutual relations in place of the rules contained in this Regulation.

Paragraph 2(b) affirms the principle of non-discrimination on grounds of nationality on a declaratory basis, as Article 6 of the EC Treaty applies in all matters governed by the Treaty and therefore by the Regulation. It will be monitored by the Court of Justice.

The Commission considers that Member States wishing to exercise this right should reiterate the Declaration annexed to the Regulation, which is reproduced in a footnote (29).

(29) Declaration, to be annexed to the Convention by any of the Nordic Member States entitled to make a Declaration within the meaning of Article 59(2). The application of the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, is in line with Article K.7 of the Treaty in that the Convention does not prevent the establishment of closer cooperation between two or more Member States in so far as such cooperation does not conflict with, or impede, that provided for in the Convention. They undertake no longer to apply Article 7(2) of the 1931 Nordic Agreement in their mutual relations and to review at an early date the rules of jurisdiction applicable in the framework of that Agreement in the light of the principle set out in Article 59(2)(b). The grounds for refusal used in the context of the uniform laws are in practice applied in a manner consistent with those laid down in Title III of this Regulation.

Paragraph (c) is included to guarantee that the rules governing jurisdiction included in any future agreement between the Nordic Member States concerning the matters included in the Regulation comply with this Regulation.

A judgment handed down in a Nordic Member State pursuant to the Nordic Agreement shall also be recognised and enforced in the other Member States in accordance with the rules contained in Chapter III of this Regulation, provided that the grounds of jurisdiction used by the Nordic court correspond to those laid down in Chapter II.

Member States are to notify the Commission of such agreements and of any changes and denunciations.

The utility of preserving this exception will be considered in the report to be presented by the Commission (Article 45) (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Article 60 Brussels II Regulation (2003)

Article 60 Relations with certain multilateral conventions In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation: (a) the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors; (b) the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages; (c) the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations; (d) the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children; and (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

This provision contains the general rule that this Regulation takes precedence over other international conventions to which the Member States are party in so far as they concern matters governed by this Regulation.

The text adopted means that this Regulation takes precedence and that it must therefore be compulsory to apply it in place of such other agreements.

It should be pointed out that not all the Member States are party to all the conventions mentioned in this Article and that their inclusion in the list does not mean that the Member States are recommended to accede to them. The provision is simply a practical statement of the relationship between this Regulation and other Treaty texts (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Article 61 Brussels II Regulation (2003)

Article 61 Relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children As concerns the relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, this Regulation shall apply: (a) where the child concerned has his or her habitual residence on the territory of a Member State; (b) as concerns the recognition and enforcement of a judgment given in a court of a Member State on the territory of another Member State, even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the said Convention.

The list now also includes the 1980 Hague Convention. In addition, the precedence of the Proposal to the 1996 Hague Convention is no longer limited to children habitually resident in a Member State. Should the Community decide for the ratification of the Convention by the Member States, the limitations that would be placed on Community law would thus follow from Article 52 of the Convention and would relate to children who are not resident in a Member State and who are resident in another Contracting Party.

[see comment]

Article 62 Brussels II Regulation (2003)

Article 62 Scope of effects 1. The agreements and conventions referred to in Articles 59(1), 60 and 61 shall continue to have effect in relation to matters not governed by this Regulation. 2. The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue to produce effects between the Member States which are party thereto, in compliance with Article 60.

[see comment]

Article 63 Brussels II Regulation (2003)

Article 63 Treaties with the Holy See 1. This Regulation shall apply without prejudice to the International Treaty (Concordat) between the Holy See and Portugal, signed at the Vatican City on 7 May 1940. 2. Any decision as to the invalidity of a marriage taken under the Treaty referred to in paragraph 1 shall be recognised in the Member States on the conditions laid down in Chapter III, Section 1. 3. The provisions laid down in paragraphs 1 and 2 shall also apply to the following international treaties (Concordats) with the Holy See: (a) ‘Concordato lateranense' of 11 February 1929 between Italy and the Holy See, modified by the agreement, with additional Protocol signed in Rome on 18 February 1984; (b)Agreement between the Holy See and Spain on legal affairs of 3 January 1979. (c) Agreement between the Holy See and Malta on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993, including the Protocol of application of the same date, with the second Additional Protocol of 6 January 1995. 4. Recognition of the decisions provided for in paragraph 2 may, in Spain, Italy or Malta, be subject to the same procedures and the same checks as are applicable to decisions of the ecclesiastical courts handed down in accordance with the international treaties concluded with the Holy See referred to in paragraph 3. 5. Member States shall send to the Commission: (a) a copy of the Treaties referred to in paragraphs 1 and 3; (b) any denunciations of or amendments to those Treaties.

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

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

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

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

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

(1) canonical decisions and judgments only produce civil effects if both parties consent and neither contests;

(2) there having been no contest, the ordinary court determines whether the canonical judgment has civil effects or not and, if it does, proceeds to enforce it in accordance with the Civil Code provisions on annulment and dissolution cases;

(3) annulment cases in canon law and in civil law do not coincide. For that reason, there is discussion as to whether canonical judgments 'which accord with State law' can be considered effective in the civil order;

(4) Article 80 of the Civil Code refers to Article 954 of the Code of Civil Procedure, regarding the conditions for enforcing foreign judgments. Such reference is relevant to default of appearance by the respondent. The essential issue is whether or not one of the parties has opposed the application to give the canonical judgments and decisions on marriage annulment civil effect.

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

(a) the ecclesiastical court had jurisdiction over the case in that it was a marriage celebrated in accordance with the requirements laid down by that Article;

(b) the procedure before the ecclesiastical courts afforded the parties the right to appear and to be defended, in accordance with the fundamental principles of the Italian legal system;

(c) the conditions required by Italian legislation for declaring foreign judgments effective have been met. Although Law 218 of 31 May 1995 on the reform of the Italian system of private international law (Article 73) derogated from Articles 796 et seq. of the 'Codice di Procedura Civile' (Code of Civil Procedure), in practice it is understood that, pursuant to Article 2 thereof (international agreements), those Articles remain in force for recognition of ecclesiastical judgments on annulment of marriages. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

The ability of the Member States to conclude agreements follows from the case law of the Court of Justice, while the extent of effects of such agreements follows from international law as well as the provisions of Article 61.

[see comment]

CHAPTER VI TRANSITIONAL PROVISIONS

Article 64 Brussels II Regulation (2003)

Article 64 Transitional provisions 1 . The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after its date of application in accordance with Article 72. 2. Judgments given after the date of application of this Regulation in proceedings instituted before that date but after the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation if jurisdiction was founded on rules which accorded with those provided for either in Chapter II or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. 3. Judgments given before the date of application of this Regulation in proceedings instituted after the entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings. 4. Judgments given before the date of application of this Regulation but after the date of entry into force of Regulation (EC) No 1347/2000 in proceedings instituted before the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings and that jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

Paragraphs 1 and 2 adopt the same approach as Article 42 of Council Regulation (EC) No 1347/2000 for the application of this Regulation where proceedings are instituted before its date of application, but the judgment is handed out after that date. The general rule is that the Regulation applies only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to settlements which have been approved by a court in the course of proceedings after its entry into force.

Paragraphs 3 and 4 allow for the recognition and enforcement, using the provisions of this Proposal, of judgments that could have been recognized and enforced in accordance with Council Regulation (EC) No 1347/2000.

[see comment]

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ECJ 16 July 2009, C-168/08
1. Where the court of the Member State addressed must verify, pursuant to Article 64(4) of Council Regulation (EC) No 2201/2003, whether the court of the Member State of origin of a judgment would have had jurisdiction under Article 3(1)(b) of that Regulation, the latter provision precludes the court of the Member State addressed from regarding spouses who each hold the nationality both of that State and of the Member State of origin as nationals only of the Member State addressed. That court must, on the contrary, take into account the fact that the spouses also hold the nationality of the Member State of origin and that, therefore, the courts of the latter could have had jurisdiction to hear the case.

 

CHAPTER VII FINAL PROVISIONS

Article 65 Brussels II Regulation (2003)

Article 65 Review No later than 1 January 2012, and every five years thereafter, the Commission shall present to the European Parliament, to the Council and to the European Economic and Social Committee a report on the application of this Regulation on the basis of information supplied by the Member States. The report shall be accompanied if need be by proposals for adaptations.

Article 66 Brussels II Regulation (2003)

Article 66 Member States with two or more legal systems With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units: (a) any reference to habitual residence in that Member State shall refer to habitual residence in a territorial unit; (b) any reference to nationality, or in the case of the United Kingdom ‘domicile', shall refer to the territorial unit designated by the law of that State; (c) any reference to the authority of a Member State shall refer to the authority of a territorial unit within that State which is concerned; (d) any reference to the rules of the requested Member State shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked.

This provision takes direct account of cases in which there are two or more systems of law or sets of rules from the point of view of court procedure. However, the only grounds included are the ones relating to matters included in this Regulation. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

Article 67 Brussels II Regulation (2003)

Article 67 Information on central authorities and languages accepted The Member States shall communicate to the Commission within three months following the entry into force of this Regulation: (a) the names, addresses and means of communication for the central authorities designated pursuant to Article 53; (b) the languages accepted for communications to central authorities pursuant to Article 57(2); and (c) the languages accepted for the certificate concerning rights of access pursuant to Article 45(2). The Member States shall communicate to the Commission any changes to this information. The Commission shall make this information publicly available.

On the basis of the information communicated by Member States, the Commission will keep the information on central authorities and languages up to date and make this information publicly available.

Article 68 Brussels II Regulation (2003)

Article 68 Information relating to courts and redress procedures The Member States shall notify to the Commission the lists of courts and redress procedures referred to in Articles 21, 29, 33 and 34 and any amendments thereto. The Commission shall update this information and make it publicly available through the publication in the Official Journal of the European Union and any other appropriate means.

Article 69 Brussels II Regulation (2003)

Article 69 Amendments to the Annexes Any amendments to the standard forms in Annexes I to IV shall be adopted in accordance with the consultative procedure set out in Article 70(2).

Article 70 Brussels II Regulation (2003)

Article 70 Committee 1. The Commission shall be assisted by a committee (committee). 2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply. 3. The committee shall adopt its rules of procedure.

Article 71 Brussels II Regulation (2003)

Article 71 Repeal of Regulation (EC) No 1347/2000 1. Regulation (EC) No 1347/2000 shall be repealed as from the date of application of this Regulation. 2. Any reference to Regulation (EC) No 1347/2000 shall be construed as a reference to this Regulation according to the comparative table in Annex V.

However, judgments that would have been recognized and enforced under the provisions of Council Regulation (EC) No 1347/2000 would now still be recognized and enforced under the provisions of the Brussels II Regulation 2003 in accordance with the transitional provisions in Article 63(3) and (4).

Article 72 Brussels II Regulation (2003)

Article 72 Entry into force This Regulation shall enter into force on 1 August 2004. The Regulation shall apply from 1 March 2005, with the exception of Articles 67, 68, 69 and 70, which shall apply from 1 August 2004. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

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