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Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation

Published online by Cambridge University Press:  21 May 2009

Th.M. de Boer
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Since 1 March 2001, family courts in the European Union (except Denmark) have been obliged to follow the rules of EC Regulation 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. The Regulation was meant to complement the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, and that is why it has come to be known as the ‘Brussels II Regulation’. The Convention covers, roughly speaking, patrimonial matters – such as property, contracts and torts – while the Regulation deals with divorce and child custody. On 1 March 2002, another Regulation entered into force, replacing the Brussels Convention and therefore aptly called the ‘Brussels I Regulation’. However, ‘Brussels I’ does not apply in Denmark, and that means that the Brussels Convention is still in force as between Denmark and the other EU member states. To complicate matters further, another Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters continues to apply in all EU member states, as well as in Norway, Iceland, Switzerland and Poland: the Lugano Convention of 1988. Its text is virtually identical to that of the Brussels Convention, but there are major differences between the Lugano Convention and the Brussels I Regulation. As far as patrimonial matters are concerned, the courts in Europe now have to juggle with three different sets of rules: the Brussels I Regulation, the Brussels Convention and the Lugano Convention.

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Netherlands International Law Review , Volume 49 , Issue 3 , December 2002 , pp. 307 - 351
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Copyright © T.M.C. Asser Press 2002

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References

2. OJL 160,30 June 2000, pp. 19–29.Google Scholar The Regulation is the final product of a number of efforts to draft a comprehensive set of rules on jurisdiction and recognition in the main area of international family law. It started with a proposal for an EC Convention on Jurisdiction and the Enforcement of Judgments in Family and Succession Matters prepared by the European Group on Private International Law. It was followed by a proposal for an EC Convention covering only divorce, legal separation and marriage annulment. The scope of the latter Convention was later expanded with child custody. A Working Party on the Extension of the Brussels Convention then completed the text of a Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, which was approved by the Council on 28 May 1998: OJC 221, 16 July 1998Google Scholar. The Regulation is based on this Convention, but some provisions were added or deleted. Yet, the Explanatory Report to the Convention, ibid., written by Professor Alegria Borras, was not adapted to the new text.

3. The Lugano Convention addresses the issue of successive treaties in Title VII. Art. 54 ter covers the relationship between the Lugano and the Brussels Convention. ‘Lugano’ takes precedence over ‘Brussels’ if its Arts. 16 or 17 confer jurisdiction on a contracting state outside the EU, or if the defendant is domiciled there. However, neither the Lugano Convention nor the Brussels I Regulation has anything to say on their mutual relationship. Art. 68(2) of the Regulation does stipulate that any reference to the Brussels Convention ‘shall be understood as a a reference to this Regulation’, but only ‘in so far as this Regulation replaces the provisions of the Convention between Member States’ [emphasis added]. Obviously, Norway, Switzerland, Iceland and Poland are not bound to this provision, not even where application of Art. 54 ter is concerned. An adaptation of the Lugano Convention would seem to be in order, anyhow, to attune it to the changes brought about by the Regulation.

4. Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance, Brussels, 17 May 2002, COM(2002) 222 final/2 2002/0110 (CNS). Confiisingly, this Proposal was preceded by another one, which was meant to repeal and replace the Brussels II provisions on parental responsibility only; infra n. 25.

5. Many authors have already commented on Brussels II, notably in Germany and the Netherlands, less so, it seems, in other EU member states. Here is a chronological list of citations I encountered:

1993–1998: J. Pirrung, ‘Internationales Privat- und Verfahrensrecht in den Europaischen Gemeinschaften - eine Skizze zum Erfordernis einer neuen internationalen Rechtsgrundlage’, in Grensoverschrijdend privaatrecht, Een bundel opstellen over privaatrecht in internationaal verband, (Liber Amicorum J. van Rijn vanAlkemade) (Deventer, Kluwer 1993) pp. 189–204; Th.M. de Boer, ‘Favor divortii en rechtsmacht, Commentaar op artikel 2 van het voorstel voor een bevoegdheids- en executieverdrag in zaken van familie- en erfrecht’, in S.C.J.J. Kortmann, et al., eds., Op Rechl, Bundel opstellen aangeboden aanprof. mr. A. V.M. Struycken ter gelegenheidvan zijn zilveren ambtsjubileum aan de Kalholieke Universiteit Nijmegen(Zwotte, W.E.J.Tjeenk, Willink 1996) pp. 19–31; K, Boele-Woelki, ‘Waarom Brussel II?’, 20 Tijdschrift voor Familie- en Jeugdrecht (FJR) (1998) p. 125;Google ScholarE, Jayme and C, Kohler, ‘Europaisches Kollisionsrecht 1998: Kulturelle Unterschiede und Parallelaktionen’, 18 Praxis desInternationalen Privat- und Verfahrensrechts (IPRax) (1998) pp. 417–429;Google Scholar J. Meeusen, ‘Nieuw internationaal procesrecht op komst in Europa: het EEX II-verdrag’, De Gerechtsdeurwaarder (1998) pp. 77–83; idem, ‘Nieuw internationaal procesrecht op komst in Europa: het EEX II-verdrag’, 62 Rechtskundig Weekblad (1998–1999) pp. 755–758;Google Scholar J. Pirrung, ‘Unification du droit en matiere familiale: la convention de I’Union européenne sur la reconaissance des divorces et la question de nouveaux travaux d’UNIDROIT, 3 Uniform Law Review/Revue du Droit Uniforme (1998) pp. 629–640; B. Sturlese, ‘Premiers commentaires sur un evenement juridique: la signature de la Convention de Bruxelles 2 ou quand I’Europe se preoccupe des conflits familiaux’, 72 La semainejuridique (Jurisclasseur periodique) (1998) pp. 1145–1148;Google Scholar

1999: Th.M. de Boer, ‘Brussel II: een eerste stap naar een communautair IPR’, 21 Tijdschrift voor Familieen Jeugdrecht (FJR) (1999) pp. 244–250; M. Freudenthal and F.J.A. van der Velden, ‘Het Brussel II-verdrag in het licht van het Van Uden-arrest’, in van Buren-Dee, J.M et al. , eds., Privaatrechten Gros (Liber Amicorum F.W. Grosheide) (Antwerp, Intersentia 1999) pp. 343–354;Google Scholar M. Jänterä-Jareborg, ‘Marriage Dissolution in an Integrated Europe: The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention)’, in P, Šarčevic and P, Volken, 1 Yearbook of Private International Law (1999) pp. 1–36;Google Scholar J. Pirrung, ‘Europaische justitielle Zusammenarbeit in Zivilsachen – insbesondere das neue Scheidungsubereinkommen’, 7 Zeitschriftfür europaisches Privatrecht (1999) pp. 834–848; W. Hau, ‘Internationales Eheverfahrensrecht in der Europaischen Union’, 46 Zeitschriftftir das gesamte Familienrecht (FamRZ) (1999) pp. 484–488;Google Scholar

2000: U.P. Gruber, ‘Die neue “europaische Rechtshängigkeit” bei Scheidungsverfahren’, 47 Zeitschrift für das gesamte Familienrecht (FamRZ) (2000) pp. 1129–1135; W. Hau, ‘Das System der internationalen Entscheidungszustandigkeit im europaischen Eheverfahrensrecht’, 47 Zeitschriftftir das gesamte Familienrecht (FamRZ) (2000) pp. 1333–1341; B. Heβ, ‘Der Verordnungsvorschlag der französischen Ratsprasidentschaft vom 26.6.2000 Uber einen “Europaischen Besuchstitel’”, 20 Praxis des Internationalen Prival-und Verfahrensrechts (IPRax) (2000) pp. 361–363; E. Jayme and C. Kohler, ‘Europäisches Kollisionsrecht 2000: Interlokales Privatrecht oder universelles Gemeinschaftsrecht’, 20 Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (2000) pp. 454–465; M. Sumampouw, ‘Parental Responsibility under Brussels II’, in J. Basedow, et al., eds., Private Law in the International Arena. From National Conflict Rules Towards Harmonization and Unification (Liber Amicorum KurlSiehr) (The Hague, T.M.C. Asser Press 2000) pp. 729–745; F.J.A. van der Velden, ‘Een Europese Verordening betreffende bevoegdheid, erkenning en tenuitvoerlegging in familierechtelijke zaken’, 131 Weekbladvoor Privaatrecht, Notariaat en Registratie (WPNR) (2000) (no. 6421) pp. 753–759; N. Watte and H. Boularbah, ‘Le règlement communautaire en matière matrimoniale et de responsabilite parentale’, 23 Revue trimestrielle de droitfamilial (2000) pp. 539–604;Google Scholar

2001: B. Ancel and H. Muir Watt, ‘La desunion europeenne: le Reglement dit “Bruxelles IP”, 90 Revue crtique de droit internationalprive (2001) pp. 403–457; K. Boele-Woelki, ‘Brüssel II: Die Verordnung /ber die Zustandigkeit und die Anerkennung von Entscheidungen in Ehesachen’, 42 Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht (ZfRv) (2001) pp. 121–130; C. Bruneau, ‘La reconaissance et l’èxècution des dècisions rendues dans l’Union europèenne’, 75 La semaine juridique (Jurisclasseur periodique) (2001) pp. 801–809; V. Van den Eeckhout, ‘“Europees” echtscheiden. Bevoegdheid en erkenning van beslissingen op basis van de EG Verordening 1347/2000 van 29 mei 2000’, in J. Van Houtte and M. Pertegas Sender, eds., Het nieuwe Europese IPR: van verdrag naar verordening (Antwerp, Intersentia 2001) p. 69–101; V. Van den Eeckhout, ‘Nieuw internationaal echtscheidingsrecht: Brussel II’, 9 Tijdschrift voor Civiele Rechtspleging (TCR) 2001, p. 25–31; H. Gaudemet-Tallon, ‘Le Reglement no. 1347/2000 du Conseil du 29 mai 2000, competence, reconnaissance et execution des decisions en matière matrimoniale et en matiere de responsabilitè parentale des enfants communs’, 128 Journal de droit international (2001) pp. 382–430; R. Hausmann, ‘Neues intemationalcs Eheverfahrensrecht in der Europaischen Union’, The European Legal Forum (2000/2001) pp. 271–279; T. Helms, ‘Die Anerkennung auslandischer Entscheidungen im europaischen Eheverfahrensrecht’, 48 Zeitschriftfur das gesamte Familienrecht (FamRz) (2001) pp. 257–266;Google ScholarC, Kohler, ‘Internationales Verfahrensrecht fur Ehesachen in der Europaischen Union: Die Verordnung Brussel II’, 54 NeueJuristischeWochenschrift(NJW) (2001)pp. 10–15; P.M.M Mostermans, ‘Nieuw Europees scheidingsprocesrecht onder de loep: de rechtsmacht bij echtscheiding’, 19 Nederlands Internationaal Privaatrecht (NIPR) (2001) pp. 293–305; K..P. Puszkajler, ‘Das internationale Scheidungs-und Sorgerecht nach Inkrafttreten der Brussel H-Verordnung’, 21 Praxis des Internationalen Privat- und Verfahrensrechts (IP Rax) (2001) pp. 81–84; G.S.C.M. van Roeyen, ‘De bevoegdheid en de erkenning en tenuitvoerlegging van beslissingen in huwelijkszaken’, EchtscheidingBulletin (2001) pp. 19–22; H. Schack, ‘Das neue internationale Eheverfahrensrecht in Europa’, 65 Rabels Zeitschrift (2001) pp. 615–633; P. Vlas, ‘Nieuw internationaal scheidingsprocesrecht: de Verordening “Brussel II’”, 132 Weekbladvoor Privaatrecht, Notariaat en Registratie (WPNR) (2001) (no. 6444) pp. 440–448; R. Wagner, ‘Die Anerkennung und Vollstreckung von Entscheidungen nach der Brussel II-Verordnung’, 21 Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (2001) pp. 73–81; N. Watte and H. Boularbah, ‘Les nouvelles regies de conflits de juridictions en matiere de desunion des epoux’, 120 Journal des Tribunaux (2001) pp. 369–378;Google Scholar

2002: D. van Iterson, ‘Het Franse initiatiefvoorstel tot afschaffing van het exequatur voor beslissingen inzakeomgangsrecht’.inH.F.G. LemaireandP. Vlas, eds., Met rechtverkregen-Bundelopstellenaangeboden aan mr. IngridS. Joppe (Deventer, Kluwer 2002) pp. 87–104; M. Sumampouw, ‘Ouderlijke verantwoordelijkheid onder de Verordening Brussel II’, 20 Nederlands Internationaal Privaatrecht (NIPR) (2002) pp. 1–8; idem, ‘Voorstel verordening ouderlijke verantwoordelijkheid: een voorbeeld hoe het niet moet’, in H.F.G. Lemaire and P. Vlas, eds., Met recht verkregen - Bundel opstellen aangeboden aan mr. Ingrid S. Joppe (Deventer, Kluwer 2002) pp. 201–218.

6. Art. 65(b) EC Treaty (consolidated version 1997).

7. ‘Differences between certain national rules governing jurisdiction and enforcement hamper the free movement of persons and the sound operation of the internal market. There are accordingly grounds for enacting provisions to unify the rules of conflict of jurisdiction in matrimonial matters and in matters of parental responsibility so as to simplify the formalities for rapid and automatic recognition and enforcement of judgments.’

8. Cf., Art. 65(a) EC Treaty (consolidated version 1997).

9. The abolition of exequatur is pursued in four areas: (1) Brussels 1; (2) Brussels II and Brussels II bis (including family situations arising through relationships other than marriage); (3) rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple; and (4) wills and succession. Cf, Explanatory Memorandum accompanying the Brussels II bis proposal, para. 1.

10. For the sake of brevity, 1 will use the word term ‘divorce’ as a term that includes legal separation and annulment of marriage as well. What is meant is a judicial change of the civil status of spouses. A nice French expression is ‘désunion des époux’, as used by Watté and Bourlabah 2001, loc. cit. n. 5, but the phrase loses in translation: ‘disunity of spouses’ is something quite different.

11. Supra n. 2.

12. In the meantime, the Commission has seen fit to introduce a definition of its own. ‘For the purposes of the Regulation’, Art. 2 of Brussels II bis contains a list often definitions ranging from ‘court’ to ‘child abduction’. Parental responsibility is now defined as ‘rights and duties given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect and relating to the person or the property of a child. In particular, the term shall include rights of custody and rights of access’.

13. As Vlas 2001, loc. cit. n. 5, at p. 445, rightly points out, this can be inferred from the preamble to the French initiative to adopt a Regulation on the mutual enforcement of judgments on rights of access, infra nn. 39–41 and accompanying text. Contra: Van der Velden 2000, loc. cit. n. 5, at p. 754, suggesting that ‘visiting rights’ are not covered by Brussels II, hence the French initiative. The Explanatory Memorandum accompanying Brussels II bis does referto ‘visiting rights’, which the European Council identified as ‘a priority for judicial cooperation’ at its meeting in Tampere in October 1999. However, in the text of the proposed Regulation, particularly Arts. 45 to 49, ‘visiting rights’ are included, apparently, in the expression ‘rights of access’.

14. Art. 4 does hint that the courts should ‘exercise their jurisdiction in conformity with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and in particular Articles 3 and 16 thereof, but child abduction as such is not within the substantive scope of Brussels II. By contrast, the scope of Brussels II bis includes both parental authority and child abduction, within or without the context of divorce proceedings. See infra section 4.3. Child maintenance, however, remains to be covered by Brussels I.

15. The most difficult question to be answered in this context concerns the nature of the judgment to be recognized: is it within or without the substantive scope of the Regulation?

16. Cf, Art. 1(3). See also recital 25: ‘Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on the European Union and the Treaty establishing the European Community, is not participating in the adoption of this Regulation, and is therefore not bound by it nor subject to its application.’

17. In the Dutch text: ‘in het geval van het Verenigd Köninkrijk en lerland’. In German: ‘im Falle des Vereinigten Konigreichs und lrand. In French: ‘dans le cas du Royaume-Uni et d’Irlande’. In Italian: ‘nel caso del Regno Unito e dell’lrlanda’.

18. That standard comes close to nationality in that it requires a permanent connection of a person with a particular country. In the United Kingdom, a person’s ‘domicile of origin’ is determined by the domicile of the father at the time of a legitimate child’s birth, by that of the mother if the child is illegitimate. The ‘domicile of origin’ persists until and unless a person decides to take up permanent residence elsewhere (‘domicile of choice’). If a domicile of choice is abandoned without being replaced by a new one, the domicile of origin revives. For a more detailed (and critical) explanation of these concepts, see C.M.V. Clarkson and J. Hill, Jaffey on the Conflict of Laws (London, Butterworths 1997) pp. 27 et seq.

19. The Convention from which Brussels II derives, supra n. 2, made more sense in this respect. Under Art. 2(2), each contracting state was required to ‘stipulate in a declaration … whether it will be applying the criterion of nationality or of “domicile” referred to in paragraph 1’. Art. 2(1) of the Convention, obviously, did not specifically refer to the United Kingdom or Ireland; each contracting state could opt for either criterion. In an historical interpretation, therefore, the corresponding text of Art. 2(1) Brussels II is likely to mean that the courts in the United Kingdom and Ireland will only apply the criterion of ‘domicile’, even where aliens are concerned.

20. For instance: Jack is the son of English parents. His domicile of origin, like his father’s, is situated in England. However, he was born in France and he has acquired French citizenship on one of the jus soli grounds of the Code de la nationalite française, since 1993 integrated in the Code civil; see Art. 19(3) Code civil in particular. Jack falls in love with Jill, the daughter of an English father (who has his domicile of origin in England) and a French mother, from whom she derived French citizenschip on account of jus sanguinis. Therefore, the domicile of origin of both Jack and Jill is in England, but they are also French citizens. They have both lived in England since childhood. After the breakdown of their marriage, Jack takes up temporary residence in France, Jill in Germany. Does an English court have jurisdiction under Art. 2( I Xb)? Since it cannot be said that the spouses acquired a domicile of choice elsewhere, their English domicile of origin continues to exist. Would that mean that both an English court and a French court could assume jurisdiction under Art. 2(1 Kb)?

21. Explanatory Report, supra n. 2, para. 33 in fine.

22. The same could be said about the concept of ‘habitual residence’, which might lend itself to different interpretations; cf, Van der Velden 2000, loc. cit. n. 5, at p. 756 (fh. 10). See, however, the Borrás Report, supra n. 2, para. 32: ‘Although the possibility of including a provision determining habitual residence similar to the one in Article 52 of the 1968 Brussels Convention was discussed, in the end it was decided not to insert any specific provision on the matter. … [Particular account was taken of the definition given on numerous occasions by the Court of Justice, i.e. “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence”.’

23. In the same vein: Hau 2000, loc. cit. n. 5, at p. 1337; Boele-Woelki 2001, loc. cit. n. 5, at p. 123; Vlas 2001, loc. cit. n. 5, at p. 444; Mostermans 2001, loc. cit. n. 5, at p. 298. Contra: Watte and Boularbah 2001, loc. cit. n. 5, at p. 373.

24. Obviously, Art. 3(2) was inspired by Art. 10 of the Hague Convention of 1996 on the protection of children. The difference is that Art. 10( 1 Kb) also requires acceptance of jurisdiction by ‘any other person [than the parents] who has parental responsibility in relation to the child’.

25. Proposal for a Council regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility of 9 September 2001, COM(2001) 505 final, 2001/0204 (CNS). This proposal has been withdrawn in favor of the latest version of Brussels II bis, supra n. 4.

26. It should be noted that prorogation (whether by an express choice by the spouses, or by respondent’s tacit submission to the jurisdiction of the court seized by petitioner) is not allowed with regard to the issue of divorce (cf, infra section 5.5).

27. Explanatory Memorandum, comment on Art. 11(3), equally applying to Art. 12(4).

28. If the child is habitually resident in the forum state its best interests are irrelevant, apparently. On the other hand, from the fact that Art. 3(1) does not expressly tell the courts in the state of the child’s habitual residence to take account of his or her best interests, it could be inferred that those interests are not at risk as long as the court seized can depend on vital information on the child’s welfare supplied by a local child protection agency, or by the child itself. If that is true, the third condition of Art. 3(2) should be read, primarily, as an instruction to the court to deny jurisdiction if it cannot gather sufficient information on the circumstances of a child living abroad.

29. Art. 7(b) also refers to a respondent who ‘in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States’. Does this mean that only the courts in the United Kingdom and in Ireland should take account of respondent’s ‘domicile’ (rather than his or her nationality), or should the courts in other member states check whether respondent could be said to be ‘domiciled’ in the United Kingdom or Ireland? For instance, French husband living in Canada starts divorce proceedings before a French court against his Swiss wife temporarily resident in Morocco but born and raised in England. Should the French court take account of the woman’s English ‘domicile’ (of origin)? If so, it would be precluded from assuming jurisdiction under Art. 8( 1). For a likely answer, see supra n. 19.

30. Cf., Boele-Woelki 2001, loc. cit. n. 5, at p. 125 (fn. 47 and accompanying text), citing ‘divergent interpretations’ of Arts. 7 and 8.

31. That would not do petitioner much good in this case. Art. 814 (now repealed) of the Dutch Code of Civil Procedure conferred jurisdiction on a Dutch divorce court if the spouses were both Dutch, or if one of them was domiciled in the Netherlands for at least six months if he or she was a Dutch national, 12 months in other cases. Since 1 January 2002, Title 1 of Book 1 of the Code of Civil Procedure provides a comprehensive set of jurisdictional rules for international eases. Curiously, Art. 4 refers back to Arts. 2, 5 and 6 of the Brussels 11 Regulation ‘if the Regulation… does not apply’. The provision is the result of legislative uncertainty regarding the Regulation’s territorial scope. If, for some reason, the Regulation was not meant to apply universally, as some members of the Dutch Standing Committee on Private International Law have suggested, the legislature wanted to be sure that the Dutch courts would not be tempted to resort to their national law.

32. Under section 606a(l) of the German Statute on Civil Procedure (Zivilprozessordnung), a German court has jurisdiction over matrimonial matters if one of the spouses is a German national, or was a German national at the time of marriage.

33. Or, ‘in the case of the United Kingdom or Ireland’, if respondent is ‘domiciled’ in one of those states; supra nn. 17–20 and accompanying text.

34. The conditions referred to under (d) are actually limited to these three:

– petitioner still resides in one of the member states and spouses had their last habitual residence in that state, or

– petitioner is habitually resident in one of the member states for at least a year preceding the application, or

– petitioner is habitually resident in one of the member states for at least six months preceding the application and is also a national of that state.

The other conditions are already covered by situations (b) and (c).

35. It took me quite a while to figure this out - with the help of a Boolean formula I devised for this problem - and I am sorry to say that my calculations only prove that it is much easier to pinpoint the situations within the scope of the Regulation than those without its territorial reach. Therefore, the following scheme is nothing but an exercise in logic, certainly not a workable checklist.

As I see it, outside the territorial scope of Brussels II (and Brussels II bis for that matter) are all divorce cases in which:

1. a. the spouses have different nationalities, or

b. the spouses have the nationality of the same non-member state, and

2. a. no joint application was made, or

b. a joint application was made but neither of the spouses is habitually resident in a member state, and

3. respondent is habitually resident in a non-member state, and

4.petitioner is

a. habitually resident in a non-member state, or

b. habitually resident in a member state

– in which the spouses did not have their last common habitual residence, and

–in which he has resided for less than six months if he is a national of that state, or

–in which he has resided for less than one year if he is not a national of that state, and

[5. respondent is

a. not a national of a member state, or

b. national of a member state and being sued in the state of nationality]

If Art. 7 does allow the application of national law where none of the conditions of Art. 2(1) has been met – even if respondent is a national of a member state – condition 5 should be ignored.

Needless to say that this way of demarcating the territorial scope of a Convention or a Regulation is ludicrous. I should hope that the Commission (or rather its private international law experts, whoever they may be) will be able do better next time. Hint: just exlude any recourse to ‘residual’ national law (for a universal scope), or at least any reference to the nationality or ‘domicile’ of one of the spouses (for a clearly delimited scope).

36. Infra section 4.3.2.

37. Similarly, Art. 1 of the Hague Convention of 1970 on the Recognition of Divorces and Legal Separations only covers ‘divorces and legal separations obtained in another Contracting State which … are legally effective there’ [emphasis added].

38. In one situation, covered by Art. 16, recognition may be refused on the ground that the court of origin based its jurisdiction on national law under Art. 8: in its relations with a third state, the state of enforcement could be bound by an agreement with that state not to recognize judgments based on exorbitant jurisdiction under national law. For similar provisions, see Art. 59 of the Brussels Convention and Art. 70 of the Brussels I Regulation. This ground of non-recognition has been abolished in Brussels II bis.

39. Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children, OJC 234, 15 August 2000, pp. 7–11.Google Scholar

40. Cf, Art. 2(9): ‘The term “rights of access” shall include the right to take a child to a place other than his or her habitual residence for a limited period of time.’ The definition was copied from Art. 5 of the Hague Convention of 1980 on child abduction.

41. Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, OJC 332, 27 November 2001, p. 269.

42. Brussels II bis does provide for an amendment of Art. 5(2) Brussels I. It proposes an addition to the effect that Art. 5(2) confers ancillary jurisdiction with regard to maintenance on a court having jurisdiction over parental responsibility pursuant to Brussels II bis.

43. Art. 21 confers continuingjurisdiction on the courts of the member state from which the child has been abducted: infra section 4.4.

44. Otherwise, the Greek court might be able to assume jurisdiction under Greek national law. Art. 14 allows for residual jurisdiction ‘where no court of a member state has jurisdiction pursuant to Articles 10 to 13 or Article 21’.

45. This implies that no transfer could take place if jurisdiction has been assumed on one of the grounds listed in Art. 12. As Sumampouw 2002, op. cit. n. 5, at p. 217, rightly points out, it would be contradictory if a court first assumes jurisdiction ‘in the best interests of the child’ - a s required by both Art. 12(1) and 12(2) - and then allows the case to transferred, for the same ‘best interests’, to the courts of another member state.

46. The Hague Convention on child abduction is in force in all 15 member states of the European Union. The 1996 Convention on the protection of children has not yet been ratified by any of the EU member states. It entered into force on 1 January 2002, as between the Czech Republic, Monaco, and Slovakia, and it will enter into force in Morocco (!) on 1 December 2002. On 11 November 2001, the European Commission has proposed a Council Decision authorizing the member states to sign the Convention ‘in the interest of the European Community’: COM (2001) 680 final.

47. Art. 21 is another exception to the ‘main rule’ of Art. 10(1); supra, text accompanying n. 43.

48. Art. 20 of the Hague Convention provides that the return of the child may also be refused ‘if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’. Obviously, there was no need to include this ground in Brussels II bis.

49. Supra section 3.6. In Brussels II bis, Arts. 27 and 28 list the grounds of non-recognition for judgments relating to divorce, legal separation and marriage annulment, and, respectively, for judgments relating to parental responsibility. They are identical to Art. 15(1) and 15(2) in Brussels II.

50. Other persons to whom visiting rights have been awarded are obliged to apply for a declaration of enforceability under the general rules of Arts. 33 et seq.

51. To facilitate recognition and/or enforcement, Brussels II already provided for the issuance of certificates in the standard forms prescribed in Annex IV (judgments in matrimonial matters) and Annex V (judgments on parental responsibility). The latter certificate did not, however, eliminate the need for an exequatur. Brussels II bis provides standard forms for a certificate concerning judgments on rights of access (Annex VI) and concerning the return of an abducted child (Annex VII).

52. Supra n. 6 and accompanying text.

53. Sumampouw 2000, op. cit. n. 5, at p. 745. See also Van Iterson 2002, op. cit. n. 5, at. p. 91.

54. Cf., Sumampouw 2002, op. cit. n. 5, at p. 218, accusing the Commission of being out of touch with the real world by ignoring the Hague Child Abduction Convention and pretending that Brussels II bis is the first international instrument addressing this issue.

55. The Hague Convention of 1961 on the protection of minors has not been ratified by Belgium, Denmark, Finland, Greece, Ireland, Sweden and the United Kingdom. As a result of the EC’s authority under Art. 65 of the EC Treaty, none of the EU member states has ratified the Convention of 1996 on child protection. The Convention of 1970 on the Recogniton of Divorces and Legal Separations has not been ratified by Austria, Belgium, France, Germany, Ireland, Greece and Spain.

56. Since the European Community is not an ‘État’ within the meaning of Art. 2 of the Stalut de la Conférence de La Haye de Droit International Prrvé, this treaty would have to be adapted first, which is only one of many problems to be solved if this approach is chosen.

57. I am not sure how this could be done. It would seem to me that the EC has exclusive competence in the field covered by the Hague Children’s Conventions, which implies that, as an international organization, the EC could accede to those Conventions, if only the Stalut of the Hague Conference - or the Conventions created by it - would allow it. The Conventions would thus become part of EC law, binding on all present and future member states and having direct effect. However, as this approach does not seem feasible at the present time (supra n. 56), I have tried to think of an alternative. One expert in European law I consulted did not think the member states could be obliged to ratify a multilateral convention, and suggested that, instead, the substantive provisions of the Hague Conventions of 1980 and 1996 could be copied into a Regulation. However, while such a Regulation would be binding on the member states, it would have no external effect. Another alternative, I thought, would be a declaration by the Council - to be laid down in a Regulation? - that the Hague Conventions are part of the acquis communautaire. That was no feasible option, I was told. Besides, such a declaration would have no external effect either. Copying the Hague Conventions into a Regulation (for intra-community cases), in combination with an EC recommendation to the member states to ratify the 1996 Convention (for use in relations with non-member states) might be the only feasible alternative then. Anyone with a better idea?

58. Discussed in more detail, supra section 3.5.1, with regard to Arts. 7 and 8 Brussels II.

59. Notably: Hau 2000, loc. cit. n. 5, at pp. 1335 et seq. See also: Boele-Woelki 2001, loc. cit. n. 5, at p. 123; Mostermans 2001, loc. cit. n. 5, at p. 297.

60. Borrás Report, supra n. 2, para. 30.

61. According to F.J.A. van der Velden, ‘Nationaliteit als Europese jurisdictiegrond’, in S.C.J.J. Kortmann, et al., eds., Op Recht, B uncle I opstellen aangeboden aanprof. mr. A. V. M. Struycken ter gelegenheid van zijn ziherenambtsjubileumaandeKathohekeUniversiteitNijmegen(Zwolle, W.E.).Tjeenk Willink 1996)pp.357–365 at pp. 364–365, the only justification for a forum patriae within the EU would be the fact that a national of a member state has no access to justice anywhere else. In that case, petitioner’s national courts would be allowed to assume jurisdiction as forum necessitate.

62. That implies that Art. 8(2) Brussels II (= Art. 9(2) Brussels II bis) is questionable as well, as it allows an EU resident who is also an EU national to sue a non-resident who is not an EU national under the national law of the forum state, on the same footing as other nationals of that state. In my view, the same right should be granted to EU residents who are not EU nationals. The privileged position of the respondent - Art. 8(2) does not apply if respondent is an EU national - is based on Art. 7(a) (= 8(a) in Brussels II bis), already mentioned.

63. Art. 2( 1 Xb) Brussels II = Art. 5(1)(b) Brussels II bis.

64. Cf., Boele-Woelki 2001, loc. cit. n. 5, at p. 123. It seems that some member states had serious objections against a choice of forum: Van der Velden 2000, loc. cit. n. 5, at p. 755, fn. 9. That is why Mostermans 2001, loc. cit. n. 5, at p. 303, suggests that prorogation should be allowed under (Dutch) national law, applicable by virtue of Art. 8(1).

65. The original text of Art. 4 of the Brussels Convention ignored the possibility of a choice of forum agreement between a plaintiff domiciled in one of the contracting states and a defendant domiciled in a third state. Yet, there was no doubt that this situation was within the Convention’s territorial scope. This omission was later amended. Still, doubts persisted whether the provision on tacit submission (Art. 18) only applied to situations in which the defendant was domiciled in a contracting state, or to situations in which the plaintiff was domiciled in a contracting state, or to any situation in which defendant entered an appearance without contesting jurisdiction, regardless of either party’s domicile. Cf, Th.M. de Boer, ‘Tacit Submission to Jurisdiction: The Scope of Article 18 of the EEC Jurisdiction Convention’, in M. Sumampouw, et al., eds., Law and Reality, Essays on National and International Procedural law in Honour ofCornelis Caret Albert Voskuil (Dordrecht, Nijhoff 1992) pp. 27–45. In the meantime, the EC Court of Justice has indicated that it is irrelevant, under Art. 18, whether or not plaintiff or defendant is domiciled in a contracting state (Group Josi Reinsurance SA v. Universal General Insurance Company, Case C-412/98, [2000] ECR 1–5925,39 NILR (2002) p. 106 (ann. P. Vlas, M. Zilinsky, F. Ibili), 20 IPRax (2000) p. 483 (ann. A. Staudinger).

The Brussels I Regulation still does not give a clear answer to this question, but from the preamble (recitals 8 and 11) it could be inferred that Art. 24 does not apply if there is no ‘link’, or ‘linking factor’ between the proceedings and the territory of the member states. Situations in which Art. 22 does not apply and neither party is domiciled in a member state would thus be outside the Regulation’s territorial scope. If this interpretation is correct, recital 44 in the Group Josi decision has no bearing on cases to be decided under the Regulation.

66. An example I have derived from the article by D. van Iterson 2002, op. cit. n. 5, at p. 98, is the situation in which visiting rights have been granted for a specific period of time during school vacations, while those rights should be effected in another member state where school vacations do not coincide with the specified period. Art. 51 does allow the courts of the state of enforcement to ‘make practical arrangements for organizing the exercise of rights of access, if the necessary arrangements have not been made in the judgment of the member state having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected’. First, what if the original court did make the ‘necessary arrangements’ without considering the practicalities? Second, which court should decide on ‘practical arrangements’ if the state of enforcement does not distinguish between exequatur and enforcement proceedings? Third, where is the borderline between ‘essential elements’ of the judgment to be enforced and ‘practical arrangements’?