Comment on
EC Regulation
Brussels II 2003

• Scope of application of the Brussels II Regulation 2003
  • History of the Brussels II Regulation 2003
  • Geographical scope of the Brussels II Regulation 2003
  • Material scope of the Brussels II Regulation 2003
  • Transitional law
  • Co-operation between central authorities and between
    courts (Articles 53-58)

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• Jurisdiction over matters of divorce, legal separation and marriage annulment
  • Basic principles of the Brussels II Regulation 2003 (divorce, legal separation and marriage annulment)
  • Basic system for jurisdiction over matters of divorce, legal separation or marriage annulment
  • General jurisdiction (Article 3)
    • Grounds related to habitual residence (point (1) a)
    • Grounds related to nationality (point (1) b)
  • Jurisdiction with regard to counterclaims (Article 4)
  • Conversion of legal separation into divorce (Article 5)
  • Exclusive nature of jurisdiction (Article 6) and residual jurisdiction (Article 7)
  • New developments on jurisdiction under the Brussels II Regulation 2003
    • Article 3a: Choice of court by the parties in proceedings relating to divorce and legal separation
    • Article 7: The new rule on residual jurisdiction




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• Jurisdiction over matters of parental responsibility
  • Basic system for jurisdiction over matters of parental responsibility
  • General jurisdiction in matters of parental responsibility (Article 8)
  • Continuing jurisdiction of the child's former habitual residence (Article 9)
  • Prorogation of jurisdiction (Article 12)
    • (a) Derived jurisdiction because of a connection with a matrimonial proceeding (Article 12 (1)(2))
    • (b) Derived jurisdiction because the child has a substantial connection with that Member State who’s court is seised (Article 12 (3))
  • Jurisdiction based on the child's presence (Article 13)
  • Residual jurisdiction (Article 14)
  • Transfer to a court better placed to hear the case (Article 15)
  • Cooperation between Member States in case of the placement of a child in another Member State

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• Jurisdiction over matters of child abduction
  • The rules on child abduction (Articles 10, 11, 40, 42, 55)
  • Jurisdiction in cases of child abduction (Articles 10, 11, 40, 42, 55)
  • Rules to ensure the prompt return of the child
  • The requested court decides that the child shall not return (Article 11 (6)(7)(8))
  • The court of origin rules on all rights of custody and access and/or the return of the child (Articles 11 (7) and 42)

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• Common provisions for determining jurisdiction
  • Jurisdiction over matters of divorce, legal separation, marriage annulment, parental responsibility and child abduction
  • Common provisions for the courts of the Member States to determine their jurisdiction
  • Seizing of a Court (Article 16)
  • Examination of its own motion as to jurisdiction (Article 17)
  • Examination as to admissibility (Article 18)
  • Lis pendens and dependent actions (Article 19)
  • Provisional, including protective, measures (Article 20)

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• Applicable law in matters of divorce and legal separation
  • New Chapter for determining the applicable law in matters of divorce and legal separation
  • Choice of law by the parties (Article 20a)
  • Applicable law in the absence of choice by the parties (Article 20b)
  • Application of foreign law (Article 20c)
  • Exclusion of renvoi (Article 20d)
  • Public policy (Article 20e)

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• Recognition and enforcement
  • Recognition and enforcement of judgments
  • Recognition of a judgment by the authorities and courts of another Member State (Article 21)
  • Limited possibilities to refuse a judgment of the courts of another Member State (Articles 24 to 26)
  • Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment (Article 22)
  • Grounds of non-recognition for judgments relating to parental responsibility (Article 23)
  • Parties may contest the recognition or the refusal of a recognition (Article 21 (3))
  • Recognition of a judgment raised as an incidental question (Article 21 (4))
  • Stay of proceedings (Article 27)
  • Enforcement of judgments on matters of parental responsibility (sec. 2, Chap. III)
  • Exequatur procedure
  • Request to make judgments enforceable in other Member States (Article 28)
  • Jurisdiction over applications to obtain a declaration of enforceability (Article 29)
  • Procedure for making an application and filing documents (Article 30)
  • Decision of the court at first instance (Article 31)
  • Notice of the court’s decision (Article 32)
  • Appeal against the court’s decision (Article 33)
  • Contesting the decision of the Court of Appeal (Article 34)
  • Stay of proceedings (Article 35)
  • Partial enforcement (Article 36)
  • Costs, legal aid and court securities (Article 49 – 51)
  • Recognition and enforcement of authentic instruments and agreements between parties (Article 46)

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• Enforcing a right of access to and the return of a child
  • Immediate enforceability of judgments in other Member States
  • Judgments concerning rights of access (Articles 40 and 41)
  • Judgments ordering the return of a child (Article 42)
  • Hearing the child (Articles 23, 41, 42)
  • New removal of the child to another Member State (Article 42)

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• Relations with other Conventions and instruments
  • Relation with other instruments (Article 59)
  • Relations with certain multilateral conventions (Article 60)
  • Relation with the 1996 Hague Convention (Article 61)
  • Treaties with the Holy See (Article 63)

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