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The Brussels II Regulation: How the European Community has Moved into Family Law

Published online by Cambridge University Press:  17 January 2008

Peter McEleavy
Peter McEleavy
Affiliation:
Lecturer in Law, University of Aberdeen.
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Extract

On 1 March 2001 Council Regulation (EC) No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses (Brussels II) entered into force.1 In the United Kingdom at least this significant step went relatively unnoticed. Nevertheless, the Regulation marks a new departure for the European Community and is likely to be but the first in a series of instruments dealing with family law issues. This article will use an analysis of the evolution of the Brussels II initiative to explore how and why the European Community has been able to move into an area not innately associated with traditional European goals.2 It will then reflect on the wider impact of the Regulation and any future initiatives for private international law and family law in Europe.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 883 - 908
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 OJ 2000 L160, 19–29. See generally, P McEleavy ‘The Communitarisation of Divorce Rules: What Impact for English and Scottish Law?’, forthcoming; H Gaudemet-Tallon ‘Le Règlement n° 1347/2000 du Conseil du 29 mai 2000: ‘Compétence, reconnaissance et exécution des decisions en matière matrimoniale et en mati`re de responsibilité parentale des enfants communs’, Journal de Droit International (2001), 381Google Scholar; B Ancel and H Muir Watt ‘La Désunion Européenne: le Règlement dit Bruxelles II’ Rev. crit DIP 2001, 403–57; P de Vareilles-Sommières ‘La libre circulation des jugements rendus en matière matrimoniale en Europe– Convention de Bruxelles II du 28 mai 1998 et proposition de règlement (CE) du Conseil’ Gaz. Pal 1999, Doct, 2018–31; Francq, S and Boxstael, J-L Van ‘Le règlement de Bruxelles II– Compétence, reconnaissance et exécution en matière matrimoniale et en matière de responsabil-ite parentale’ Journal des tribunaux, Droit Européen (2001), 73Google Scholar: Watté, N and Boularbah, H ‘Les nouvelles regies de conflit de jurisdictions en matière de désunion des époux—le règlement communautaire “Bruxelles II”’ Journal des tribunaux (2001), 369Google Scholar.

2 Current Community objectives are set out in the revised version of Art 3 EC Treaty.

3 Hereinafter ‘Brussels I’. Matrimonial matters were excluded from its scope for the practical reason that it was considered too difficult to unify the jurisdiction rules of the Member States, even though at that time this only concerned the original six members of the EEC, see Jenard Report [1979] OJ C59 at 10 and also the discussion in Beaumont, P and Moir, G ‘Brussels Convention II: A New Private International Law Instrument in Family Matters for the European Union or Community?’ (1995) ELR 268–88, at 270Google Scholar. Of course it was also the case that such matters did not directly affect the course of economic integration, which was the primary focus of the EEC.

4 Council Regulation (EC) No 44/2001 of 22 Dec 2000, which entered into force on 1 Mar 2002. The Regulation will not apply to Denmark, therefore Brussels I will continue to exist with regard to civil and commercial litigation involving Denmark and the other fourteen Member States.

5 For a comparative analysis of double, mixed and single conventions see: Mehren, AT Von, ‘Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference?’ Law and Contemporary Legal Problems (1994), 271, 282.CrossRefGoogle Scholar

6 ‘The Explanatory Report on the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters,’ prepared by A Borrás, OJ 1998 C221/27 at 35, para 22. Some authors have referred to this as introducing a species of dépegage into this area: Francq and Van Boxstael, ibid, 74.

7 For the habitual residence requirement see Art 3.

8 The Regulation will not apply to Denmark which has opted out of Title IV of the EC Treaty, and, unlike the United Kingdom and Ireland it cannot selectively opt into initiatives, see Protocol to the Amsterdam Treaty on the Position of the United Kingdom and Ireland, OJ 1997 C340/99.

9 Domicile and Matrimonial Proceedings Act 1973, s 5(2) (England and Wales), s 7(2) Scotland. To avoid having a complicated system of parallel jurisdictional bases for Regulation and non-Regulation cases, the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001, no 310, r 3; and the European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001, no 36, r 2, provide that the Council Regulation bases of jurisdiction shall replace the bases found in the 1973 Act. Only if the Council Regulation bases of jurisdiction do not apply and the defendant is not a national of a continental Member State or domiciled in Ireland may reliance be placed on the English or Scottish domicile of either party to the proceedings to establish jurisdiction; see the discussion in McEleavy, ibid.

10 Art 2(1)(a)(i).

11 Art 2(1)(a)(iv).

12 Art 2(1)(a)(ii).

13 Art 2(1)(a)(v).

14 This depends on whether the applicant happens to be linked by nationality/domicile with that jurisdiction, Art 2(1)(a)(vi), The Borrás Report, ibid, notes at para.32 that this provision was the result of a late compromise reached in Dec 1997. Nationality is the connecting factor used by the continental Member States, domicile by the United Kingdom and Ireland.

15 Continental Member States.

16 United Kingdom and Ireland.

17 Family Law Act 1986, ss 2 and 2A (England); s 11 (Scotland) and see the discussion in McEleavy, op cit.

18 There is no such restriction in the existing law where the child is not habitually resident in the forum. Moreover the exercise of jurisdiction in respect of matters relating to parental responsibility under the Regulation is strictly time limited, see Art 3(3).

19 Art 11.

20 Art 11(1) and (2). The lis pendens rule in para 2 for ‘dependent actions’, unlike that in para 1, is confined to matrimonial proceedings.

21 As is the case with Brussels I non-European defendants are treated in a much less favourable way. Indeed the impact of Art 8(2) means that under the Regulation regime they will be subject to an increased number of exorbitant jurisdictional rules than before. Under this provision as against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his “domicile' within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.

22 See McEleavy, op cit.

23 A judgment granted under a Contracting State's residual rules, as per Art 8, will be entitled to automatic recognition and enforcement in the same way as any other judgment made under the Regulation.

24 Separate grounds for non-recognition are provided for matrimonial orders and parental responsibility orders.

25 Notwithstanding this formulation Art 13(2) makes clear that the enforcement of costs orders in respect of the divorce or separation proceedings is covered by Ch III of the Regulation, see Gaudemet-Tallon, op cit, 415.

26 Domicile and Matrimonial Proceedings Act 1973, Schedule 1, para. 8 (England and Wales), Schedule 3, para. 8 (Scotland).

27 For a discussion of the jurisdiction issues at work here see: McEleavy, op cit.

28 In 2000 it is estimated that there were 694,000 divorces within the European Union, a rise of almost 200,000 from 1980. United Kingdom divorces accounted for almost 23 per cent of this total with a figure 158,700. This was the second highest national total behind Germany, 190,600 divorces: Statistics in Focus, Population and Social Trends, Theme 3–15/2001, European Communities, 2001.

29 One might add that there are also policy reasons in favour of introducing a regime that will prevent forum shopping. Although on the other hand one might question to what extent this remains a pressing concern today given the relative ease with which divorces can be obtained within most ‘Western’ States. Cf. the situation which existed at the time of the drafting of the 1970 Hague Convention, see: Anton, AE ‘The Recognition of Divorces and Legal Separations’ (1969) 18 ICLQ, 620–43, at 620.Google Scholar

30 Under Art 14(2) of the Regulation no special procedure shall be required for up-dating 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.

31 See, in particular, Bellet, P and Goldman, B, ‘Official Report’, Acts and Documents of the 11th Session, Book II, also repr in Family Law Quarterly, vol 5 (1971), 321Google Scholar, and Anton, op cit.

32 Denmark, Finland, Italy, Luxembourg, Netherlands, Portugal, Sweden, and the United Kingdom.

33 The non-EU parties being Australia, China (Hong Kong SAR only), Cyprus, Czech Republic, Egypt, Norway, Poland, Slovakia, and Switzerland; see <http://www.hcch.net/e/status/stat18e.html>.

34 The Borras Report, op cit, at 29, notes that at the initial stages of research into the Brussels II project some Member States expressed satisfaction at the results achieved by applying the 1970 Hague Convention.

35 Recognition of Divorces and Legal Separations Act 1971. The relevant provisions for the recognition of foreign divorces are now to be found in the Family Law Act 1986.

36 Ireland was the last Member State to accept divorce following the referendum of 24 Nov 1995; the Family Law (Divorce) Act 1996 entered into force on 27 Feb 1997.

37 The primary grounds of jurisdiction are found in Art 1070 of the Nouveau Code de Procedure Civile.

38 A detailed example of such a case is discussed by J Pirrung ‘Unification du droit en matière familiale: la Convention de l'Union européenne sur la reconnaissance des divorces et la question de nouveaux travaux d'UNIDROIT’ Uniform Law Review (1998), 629–40, at 629–31. The French jurisdiction rules are discussed in this context by Sturlèse, B ‘Les nouvelles règies du droit international privé européen du divorce’ JCP G (2001), I, 241, 243.Google Scholar

39 Loussouarn, Y and Bourel, P, Droit International Privé, 6th edn (2001), Dalloz, Paris, 579Google Scholar. For a practical Anglo-French example, albeit one where the French expert evidence is a little confused, see: CvC (Divorce: Stay of English Proceedings) [2001] 1 FLR 624, and commentary in McEleavy ’Case Digest‘ [2001] International Family Law, 202.

40 There is no legal reason why jurisdictional problems of this nature could not have arisen in respect of other international French marriages. However, there does not appear to be evidence of anything other than Franco-German marriages giving rise to such problems; see the Report of the House of Lords Select Committee on the European Communities ‘Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ HL Paper 19, Session 1997–8, oral evidence of Professor Hartley at 12.

41 Oral evidence of John Watherston to the House of Lords' Select Committee, q. 157. The Report of the Commission des Affaires Etrangeres (P Dhaille) for the French Assemblée Nationale on the Brussels II Convention, Report No 2190, 23 Feb 2000, states bluntly that the Convention was not compatible with French law.

42 Ibid.

43 Sturlèse, op cit, 242.

44 Commission proposal for a Council Regulation establishing a general framework for Community activities to facilitate the implementation of a judicial area in civil matters, COM (2001) 221 final, 15 May 2001, Explanatory Report, 1.

45 Pirrung, op cit, 631. This had been preceded by discussions with the French, UK, and Dutch delegates to this Group.

46 For further details see: Pirrung, J ‘Internationales Privat- und Verfahrensrecht der Scheidung in den Europäischen Gemeinschaften—eine Skizze Erfordernis einer neuen internationalen Rechtsgrundlage’, in Grensoverschrijdend privaatrecht, Mélanges en l'honneur de J. van Rijn van Alkemade, Deventer (1993), 189 et seq.Google Scholar

47 Ibid, para 7.

48 The Group comprises leading private international lawyers from each of the Member States of the European Union. Its activities are sponsored by the European Commission and, as in this instance, serve as a test-bed for future European legislative initiatives.

49 The final meeting took place in Heidelberg and the text elaborated is sometimes referred to as the Heidelberg Project, see ‘Proposal for a Convention Concerning Jurisdiction and the Enforcement of Judgments in Family and Succession Matters’ NILR (1995), 169Google Scholar, with note by Tebbens, H Duintjer; ‘Une proposition pour une Convention concernant la compétence judiciaire et l'exécution des décisions en matière familiale et successorale’ IPRax (1994), 67Google Scholar with note by E Jayme; and Rev crit. DIP (1993), 841.

50 B Sturlèse L 'extension du système de la Convention de Bruxelles au droit de la famille, Travaux du Comité Francais de Droit International Privé (1995–8), éditions Pedone.

51 This date is quoted from Community officials and the German Justice Ministry in Beaumont and Moir, op cit 269.

52 See Sturlese, op cit.

53 Memorandum by the Lord Chancellor's Department, evidence to the House of Lords' Select Committee, op cit, 37.

54 See, eg, the Children Act 1989, s 1(5) and the Children (Scotland) Act 1995, s ll(7)(a).

55 One commentator who was closely involved in the project has noted that there were 4 States that had strong reservations about dealing with custody matters, see Pirrung, op cit, 634.

56 Oral evidence of John Watherston to the House of Lords' Select Committee, ibid, q 164.

57 See Hague Convention of 1 February 1971 on Recognition and Enforcement of Judgments in Civil and Commercial Matters, which clashed with Brussels I and the discussion in Beaumont and Moir, op cit, 274/5.

58 The Convention entered into force on 1 Jan 2002.

59 Many of the members of the Working Party on the Extension of the Brussels Convention were also representing their countries at the Hague.

60 House of Lords' Select Committee Report, op cit, 21 and 22.

61 See Sturlèse, op cit.

62 Memorandum by the Lord Chancellor's Department, evidence to the House of Lords' Select Committee, op cit, 36.

63 Ibid, 37.

64 See Protocol to the Amsterdam Treaty of the Position of the United Kingdom and Ireland, OJ 1997 C340/99.

65 Hereinafter: Brussels II Convention.

66 European Parliament Report on the draft Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters (13245/97 - C4–0063/98 - 97/0918 (CNS)), 16 Apr 1998, A4–0131/98. For a discussion on the potential legal bases for the Convention see also Beaumont and Moir, op cit, 275–85.

67 OI 1998 C221/1–18 (Convention), 19–26 (Protocol on jurisdiction of the ECJ).

68 Projets de lois, nos 384 and 385, Journel Officiel, Doc. Sénat, session ordinaire, 1998–9.

69 Lois nos. 2000–209 and 2000–211, 8 Mar 2000, Journel Officiel, no 58, 9 Mar 2000, 3672. A few weeks later on 20 Mar l'Assemblee nationale passed a resolution calling for the urgent adoption and implementation of the proposed Regulation, Texte adopté, no 474, ‘Petite Loi’.

70 Both States made a declaration to this effect on the day of the signature of the Convention, see Drouet, S ‘La Communautarisation de ‘Bruxelles II’ Chronique d'une Mutation Juridique’ (2001), Revue du Marché commun et de l'Union européenne, 247, at 252.Google Scholar

71 In the ‘Vienna Action Plan’ adopted at the Council meeting on 3 Dec 1998, OJ 1999 C 19/01, attention was drawn, at para 23, to the question of how to handle conventions in the field to be transferred to Community competence which would be signed but not yet ratified at the time of the entry into force of the Amsterdam Treaty.

72 In addition it should be noted that these provisions are found within Title IV of the Treaty, which is titled: Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons.

73 Kohler, C ‘Interrogations sur les sources du droit international privé européen après le traite d'Amsterdam’ Rev. crit. DIP (1999), 1–30Google Scholar; Basedow, J ‘The Communitarisation of the Conflict of laws under the Treaty of Amsterdam’ (2000) CMLR, 687Google Scholar; Remien, O ‘European private International law, the European Community and its Emerging Area of Freedom, Security and Justice’ (2001) CMLR, 53 at 74Google Scholar. For further analysis of how the Council and Commission may have come to their wide interpretation of Art 65 as a legal basis for Community action see: Kennett, WA, Enforcement of Judgments In Europe (Oxford: Oxford University Press, 2000), 12Google Scholar; and Israël, J, ‘Conflicts of Law and the EC after Amsterdam A Change for the Worse?’ (2000) Maastricht Journal of European and Comparative Law, 81 at 93 et seq.CrossRefGoogle Scholar

74 See Beaumont, P ‘European Court of Justice and Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters’ [1999] ICLQ, 223 at 228Google Scholar and H Gaudemet-Tallon ‘La Convention dite de Bruxelles II’ (communication du 24 Mar 1999), Travaux du Comité franςais de DIP 1999 (forthcoming).

75 See Proposal for a Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses, presented by the Commission, 4 May 1999, COM (1999) 220 final, 99/0110 (CNS).

76 OJ 2000 L160/19. The appropriateness of Art 65 as the legal basis for the Brussels II Regulation had previously been confirmed in an opinion from the Council Legal Service dated 11 Nov 1999, see Drouet, op cit, 250.

77 Emphasis added. For discussion on the consequentialist nature of the European Union's move towards legislating in respect of family law see: McGlynn, G ‘The Europeanisation of Family Law’ [2001] Child and Family Law Quarterly, 35 at 44 et seqGoogle Scholar.

78 This has been referred to as ‘inverted’ or ‘reverse’ subsidiarity, see Beaumont and Moir, op cit, 284. Cf Memorandum by the European Commission, Secretariat General, evidence to the House of Lords’ Select Committee, op cit, 58.

79 OJ 1999 C 19/01.

80 Betlem, G and Hondius, E ‘European Private Law After the Treaty of Amsterdam’ (2001) European Review of Private Law, 3–20, at p. 10.CrossRefGoogle Scholar

81 OJ 2001 C80/01. Under Art 2(4) qualified majority voting will be introduced in respect of measures provided for in Art 65, with the exception of aspects regarding family law (emphasis added).

82 COM (1999) 220 final, 4 May 1999; OJ 1999 C247/1. Perhaps unsurprisingly no explanation is given as to why it was not decided merely to wait for the entry into force of the Amsterdam Treaty rather than first pressing to conclude Brussels II in the form of a Convention. The answer probably lies in the fact that if ‘closure’ had not taken place in the Spring of 1998 it would have been possible that some Member States may have sought to prolong or indeed re-open certain aspects of the negotiation.

83 Where the Community has implemented a common policy in a particular area the Member States no longer have the right to take independent external action in that area which would affect the common policy. It is also possible that competence may be shared, for example where Member States wished to ratify a Convention that partially overlapped with a common policy. In cases of such ‘mixed agreements’ the Member States and the Community would have to accede together, if at all; see in general: Case 22/70 Commission v Council (ERTA) [1971] ECR 263.

84 See Art 68. As to the possible impact of Art 68(2) see Gaudemet-Tallon, op cit, 427.

85 Art 2(2).

86 In 2000 of the 70 cases head by the Judicial Committee of the House of Lords only two could be said to concern family or related issues: White v White [2000] 3 WLR 1571 and Re H (Abduction: Rights of Custody) [2000] 1 FLR 374. Ironically from a UK perspective the limitation in Art 68(1) was founded on concern that Title IV cases were, inter alia, likely to be great in number; see Fennelly, N, ‘The Area of ‘Freedom, Security and Justice’ and the European Court of Justice–A Personal View’ [2000] ICLQ, 1 at 4.CrossRefGoogle Scholar

87 Under the Protocol to the Amsterdam Treaty on the Position of the United Kingdom and Ireland, OJ 1997 C340/99, both States have opted out of Title IV, but can selectively opt into initiatives on a case-by-case basis provided notice is given within 3 months of a proposal being presented to the council. Alternatively it is possible for either state to opt in after an initiative has been adopted, for an analysis of the protocol see Beaumont, P ‘European Court of Justice and Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters’ [1999] ICLQ 223 at 226.Google Scholar

88 COM (1999) 220 final, 4 May 1999; OJ 1999 C247/1.

89 OJ 1999 C368/23.

90 OJ 2000 C274/13.

91 OJ 2000 L160/19.

92 This is best exemplified by the ‘Scoreboard mechanism,’ proposed at the Tampere European Council meeting on 5 and 16 Oct 1999, SI (1999), 800, to ensure that progress in implementing necessary measures and the meeting of deadlines is kept under constant review. See most recently the ‘Biannual Update of the Scoreboard to Review Progress on the Creation of an Area of ‘Freedom, Security and Justice’ in the European Union, (First half of 2002), 30/5/2002, COM (2002) 261.

93 Adopted at the European Council meeting in Vienna on 3 Dec 1998, OJ 1999 C 19/01.

94 Art 61(c) EC Treaty.

95 Tampere Conclusions, op cit, para 34.

96 OJ 2000 C 234/07.

97 The United Kingdom and Ireland have both given notice of their wish to take part in the adoption and application of the regulation, as per the Protocol to the Amsterdam Treaty.

98 See also the opinion of the Economic and Social Committee, OJ 2001 C 14.

99 McEleavy, ‘International Contact–Where Does the Future Lie?’ [2001] International Family Law, 55.Google Scholar

100 See Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law ‘A Report to the Lord Chancellor on the Facilitation of Arrangements for Contact between Children and their Non-Residential Parents and the Enforcement of Court Orders for Contact’, Lord Chancellor's Department, 2001.

101 Art 8. For up to date details on the status of reservations see the Council of Europe website at <http://conventions.coe.int/Treaty/EN/cadreprincipal.htm>.

102 See Beaumont and McEleavy, op cit.

103 N Lowe, S Armstrong, and A Mathias, ‘A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’ (Prel Doc No 3 of Mar 2001 for the attention of the Special Commission of Mar 2001).

104 Art 36.

105 Beaumont and McEleavy, op cit, chs 9 and 10.

106 Commission Working Document, ‘Mutual Recognition of Decisions on Parental Responsibility’, 27/3/2001, COM (2001) 166 final, 8. see also Karsten, I ‘The Draft EC Regulation on Parental Responsibility’ [2001] Family Law 885Google Scholar and Clive, E ‘The 1996 Hague Convention—A Proposal for Simplification’ [2002] Family Law 131.Google Scholar

107 Indeed in France there are particular problems with the operation of the Convention; abducting parents with sufficient means are often able to thwart return orders by exploiting appeals procedures. In addition the Cour de cassation has frequently given a much wider interpretation to the exceptions, particularly Art 13(l)(b), than is the case in other Contracting States, see: Civ Ire, 22 June 1999, Bull Civ 19991, no 1206; Civ Ire, 21 Nov 1995, Defrènois 1996, Art 36354, no 47 et Dalloz 1996, at 468, note Massip; and Civ Ire, 12 July 1994, Bull Civ 19941, no 248 Defrènois 1995, Art 36024, no 9, obs Massip, JCP éd G 1996,1, 3903, no 9, obs Bosse-Platière, Rev crit DIP 1995, 98, note Muir Watt.

108 Hearing of 17 Nov 2000. See also the Report drawn up for the Committee on Citizen's Freedoms and Rights, Justice and Home Affairs, M Banotti, 24 Oct 2000, A5–0311/2000 and the amendments proposed by the Parliament OJ 2001 C223/373.

109 Council Press Release 13865/00 (Presse 457).

110 COM (2001) 166 final, op cit, 2.

111 OJ 2001 C12/1.

112 OJ2001 C332E/269.

113 Under the 1980 Convention there must be a breach of actually exercised rights of custody, see Art 5. On the other hand, it may be noted that the proposed Regulation does not provide for rights arising by way of an agreement having legal effect under the law of the State of the child's habitual residence, cf Art 3 of the Hague Convention.

114 In most instances this will be the courts in the child's State of habitual residence.

115 Art 9.

116 In January 2002 the Spanish Presidency of the European Union issued a proposal whereby the French and Commission initiatives would be combined into one single instrument

117 See Case 22/70 Commission v Council (ERTA) [1971] ECR 263.

118 COM (2001) 166 final, op cit, 9.

119 Jan–June 2001.

120 COM (2001) 166 final, op cit, 9.

121 COM (2001) 166 final, op cit, 9–10.

122 Kennett, op cit, 6. See also McGlynn, op cit, 49.

123 COM (2002) 222 final.

124 This proposal was subsequently withdrawby by the Commission on 6/6/2002: COM (2002) 297 final.