The Brussels II Regulation 2003
Scope of application of the Brussels II Regulation 2003
The foundation of the European Community’s private international law policy is the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Its function was to make sure that national judgments of Member States were recognized by other Member States and that they could be enforced there. It also regulated the question which country had jurisdiction in legal disputes between citizens of different Member States. The purpose was to create a free movement of judgments, which would help to build a free internal market. This Convention however was restricted to ‘civil and commercial matters’ (including maintenance). Matrimonial matters (divorce, legal separation, marriage annulment, parental responsibility and child abduction) were excluded, like moreover is still the case with its descendant, the Brussels I Regulation, which is as well limited to civil and commercial matters. The national laws of the Member States concerning matrimonial matters were found to be mutually incompatible and mostly of mandatory law, so - it was believed - that it would be too hard to unify the jurisdiction rules of the Member States on this field of law.
Nevertheless the need for a uniform European regulation for matrimonial matters was felt. Marriages between citizens of different Member States became more common. The first proposals for a European Convention were restricted to jurisdiction and enforcement of judgments with regard to divorce, legal separation and nullity. They didn’t cover jurisdiction and the enforcement of judgments relating to custody and connected orders, moreover since these subjects were already under consideration by the Hague Conference, which aimed at a worldwide solution for private international law issues affecting children. In 1996 these considerations led indeed to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
Prior to the Treaty of Amsterdam the European Union had no direct competences regarding Justice and Legal Affairs. Decisions taken in these matters could not be legalized directly in a European Regulation, but had to be carried out by means of a Convention between all participating Member States. This changed drastically after the Treaty of Amsterdam. Some matters concerning international private law were brought under the direct competence of the European Union itself, so that as from that moment the European Commission and the European Parliament were able to issue European Regulations on this field of law with immediate effect in the Member States, although Member States had a right to opt-out. It was not longer necessary to put the decision in a Convention, which in fact was a separate treaty that had to be accepted by all Member States. The result of this change was that the Brussels II Convention regarding matrimonial matters, that already was accepted by the Member States, but not yet ratified, ended before it even came into force. It was replaced in 2001 by a Regulation of the European Union, which enclosed almost the same rules as the Brussels II Convention. Just like this Convention, this so-called Brussels II Regulation was modeled on the Brussels I Regulation concerning civil and commercial matters. The Borras report clarifies that, where the terms in Brussels I and II are identical, they must be given the same meaning with case law from the European Court of Justice being used as a tool for interpretation (The Borras Report (1998) O J C 221/27, the Explanatory Report on Brussels II).
The Brussels II Regulation came into force on 1 March 2001 and regulated jurisdiction and the recognition and enforcement of judgments in matrimonial matters (divorce, legal separation, marriage annulment itself) and in matters of parental responsibility for joint children. It bounded all the EU Member States except Denmark. But soon new aims were pursued. The plan was to extend the rules on mutual recognition and enforcement of Brussels II to all decisions on parental responsibility. Furthermore the European Commission wanted to reinforce the obligation of the courts to order the return of children abducted within the Community. Also the fundamental principle, that the most appropriate forum for matters of parental responsibility is the state of the child’s habitual residence, had to be strengthened. These aims lead to a revision of the existing Brussels II Regulation. A new Brussels II Regulation came into force on 1 August 2004 and applies from 1 March 2005 (No. 2201/2003 (EC). It repeals the existing Brussels II Regulation and too binds all EC states with the exception of Denmark. It has been referred to variously as Brussels II Bis or B or Brussels IIA or the new Brussels II.
The new Brussels II Regulation (or the Brussels II Regulation 2003) is to a large extent a copy of the old Brussels II Regulation of 2001, that is to say as far as divorce and other matrimonial matters are concerned but, as to parental responsibility, it now covers all children, rather than only children of both spouses and it presents new provisions regarding abduction, which expand and take precedence over the 1980 Hague Convention in cases between the subscribing Members of the European Union. But it has to be observed that the Brussels II Regulation only deals with questions relating to jurisdiction and the recognition and enforcement of judgments on divorce (including legal separation and marriage annulment), abduction and custody. It is therefore restricted to issues on the field of international private law. It does not apply to issues such as the grounds for divorce or the property consequences of the marriage or other ancillary relief. Nor does the Brussels II Regulation deal with the question of applicable law. These questions have to be answered using the national law of the different Member States, which usually means that the Member State with jurisdiction according to its own rules of international private law on this field, including the Brussels II Regulation, applies its own law and sometimes the law of the country of the Respondent. Moreover the Brussels II Regulation doesn’t apply to matters governing jurisdiction and the recognition and enforcement of judgments with regard to maintenance obligations, which are dealt with separately by the Brussels Regulation (Council Regulation 44/2001).
The Brussels II Regulation applies as of 1 March 2005 in all Member States of the European Union, with the exception of Denmark. Consequently it also applies in the ten Member States which joined the European Union on 1 May 2004. The Regulation is directly applicable in the Member States and prevails over national law (Art. 72 Practice Guide 2005). Again it has to be said that the Regulation is restricted to issues of International Private Law on the field of family law. It points out which Member State has jurisdiction to proclaim a divorce, legal separation or marriage annulment or to rule over parental responsibility and child abduction. It also contains rules on how to get such judgments recognized and even enforceable in other Member States. But it does not apply to issues such as the grounds for divorce or the property consequences of the marriage or other ancillary relief. Nor does the Brussels II Regulation deal with the question of applicable law. These questions still have to be answered using the national law of the different Member States.
Article 1 BR II 2003 sets out the material scope of the Regulation. It defines both the type of proceedings to which the Regulation applies and their subject matter.
With regard to the type of legal proceedings, the Regulation applies to all judgments which subject is covered by it, whatever the nature of the court or tribunal. This means that, in addition to civil judicial proceedings, the scope of the Regulation also includes other non-judicial proceedings occurring in matrimonial matters in certain States. Administrative procedures officially recognised in a Member State are therefore included. But the result is also that all merely religious proceedings are excluded. Article 2 BR II 2003 specifies that the reference to 'courts' includes all the authorities, judicial or otherwise, with jurisdiction in matrimonial matters.
With regard to the covered subjects, the Brussels II Regulation applies in civil matrimonial matters, insofar relating to:
The question of parental responsibility had to be included in the scope of the Regulation, since in some States the legal system requires that the decision on matrimonial matters includes parental responsibility. In the old Brussels II Regulation the rules of parental responsibility were confined to the children of both spouses, in view of the fact that the context was that of measures relating to parental responsibility taken in close conjunction with divorce, separation or annulment proceedings. The new Regulation extends the scope and covers all civil proceedings relating to parental responsibility. A general definition of the term 'parental responsibility' is provided. The term ‘parental responsibility' means, according to Article 2 (7) BR II 2003, all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term incorporates all rights of custody and rights of access. The right of custody includes rights and duties relating to the care of the person of a child and in particular the right to determine the child’s place of residence. The right of access includes in particular the right to take a child to a place other than his or her habitual residence for a limited period of time. So the term ‘parental responsibility' encompasses also matters such as guardianship and the placement of a child in a foster family or in institutional care. The holder of parental responsibility may be a natural or a legal person.
The rule under (c) can’t be found in Article 1 BR II as a separate provision. Yet, it can be subtracted from the examples in the list of Article 1 (2) (c) and (e) and from recital 9. ‘When a child owns property, it may be necessary to take certain protective measures, e.g. to appoint a person or a body to assist and represent the child with regard to the property. The Regulation applies to any protective measure that may be necessary for the administration or sale of the property. Such measures may be necessary if, for instance, the child’s parents are in dispute as regards such a question’ (Practice Guide 2005-06-01, p. 9). Recital 9 explains: ‘As regards the property of the child, the Regulation should apply only to measures for the protection of the child, i.e. (i) the designation and functions of a person or body having charge of the child's property, representing or assisting the child, and (ii) the administration, conservation or disposal of the child's property (see the above list under c and e). In this context, this Regulation should, for instance, apply in cases where the parents are in dispute as regards the administration of the child's property. Measures relating to the child's property which do not concern the protection of the child should continue to be governed by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)’. So, measures that relate to the child’s property, but which do not concern the protection of the child, are not covered by the Brussels II Regulation, but by Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). ‘It is for the judge to assess in the individual case whether a measure relating to the child’s property concerns the protection of the child or not. Whilst the Regulation applies to protective
Article 1(3) BR II 2003 enumerates those matters which may be closely linked to matters of parental responsibility (e.g. adoption, emancipation, the name and forenames of the child), but which have to be excluded from its scope for various reasons. The Brussels II Regulation explicitly does not apply to:
Article 64 BR II 2003 states that 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 to the Regulation after its date of application in accordance with Article 72 BR II 2003. So all legal proceedings that are started after 1 March 2005 fall directly under the scope of the Brussels II Regulation 2003, of course provided they are covered by it. The same goes for documents formally drawn up or registered as authentic instruments after 1 March 2005 and agreements concluded between parties after 1 March 2005.
With respect to judgments ruled in legal proceedings that were instituted before 1 March 2005, the Brussels II Regulation 2003 is not directly applicable. There is, however, provision for the possibility of allowing a judgment to benefit from the system of the new Regulation, even if the action was brought before its entry into force (thus before 1 March 2005). One has to notice that the old Brussels II Regulation still can be of influence in these situations, insofar the legal proceeding was started before this Regulation became effective. It entered into force on 1 March 2001 for the old Member States, whereas for the ten new Member States, which joined the European Union on 1 May 2004, the relevant date to determine the entry into force of the old Brussels II Regulation is 1 May 2004.
Article 64 of the Brussels II Regulation 2003 contains rules of transitional law with respect to judgments in legal proceedings that were instituted before 1 March 2005 (which are thus not directly covered by the new Brussels II Regulation 2003), but that can benefit of the system of the new Regulation, provided certain conditions are met. It distinguishes three possibilities, depending on the moment on which these legal proceedings were started and on the moment on which the judgments in these legal proceedings were given: before the old Brussels II Regulation entered into force or afterwards, but prior to 1 March 2005, when the new Brussels II Regulation became effective? The rules on recognition and enforcement of the Regulation 2003 apply, in relation to legal proceedings instituted before 1 March 2005, to three categories of judgments:
When the legal proceeding started under the scope of the old Brussels II Regulation, therefore after 1 March 2001 in one of the old Member States and after 1 May 2004 in one of the new Member States, it’s important to detect whether the judgment was ruled before the new Brussels II Regulation 2003 entered into force (1 March 2005) or afterwards. A judgement given after 1 March 2005 shall be recognised and enforced in accordance with the provisions of Chapter III of the Brussels II Regulation 2003 if jurisdiction was founded on rules which accorded with those provided for either in Chapter II of the new Brussels II Regulation 2003 or in the old Brussels II Regulation 2000 (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 legal proceedings were instituted (Art. 64 (2) BRII);
When the legal proceeding started under the scope of the old Brussels II Regulation, therefore after 1 March 2001 in one of the old Member States and after 1 May 2004 in one of the new Member States, but its judgment was ruled before the new Brussels II Regulation entered into force (1 March 2005), this judgment shall be recognised and enforced in accordance with the provisions of Chapter III of the new Brussels II Regulation 2003, 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, therefore only to matters which fell under the scope of the old Brussels II Regulation 2000 (Article 64(3) BR II);
When the legal proceeding has started even before the old Brussels II Regulation entered into force, therefore before 1 March 2001 in one of the old Member States and before 1 May 2004 in one of the new Member States, it’s important to detect whether the judgment was given before or after this Regulation (thus the old Brussels II) entered into force. A judgment in such a legal proceeding that is given when the old Brussels II Regulation was already effective, but before 1 March 2005, shall be recognised and enforced in accordance with the provisions of Chapter III of the new Brussels II Regulation (2003), 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 the new Brussels II Regulation or in the old Brussels II Regulation (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 (Article 64(4) BR II ). If the legal proceeding was instituted before the old Brussels II Regulation entered into force, but its judgment was given after the date of application of the new Brussels II Regulation (thus after 1 March 2005), the situation is not covered by Article 64 BR II.
Judgments falling under categories (a) to (c) are recognised and enforced pursuant to Chapter III of the new Brussels II Regulation, but this only under the following conditions:
It should be noted that in that event Chapter III on recognition and enforcement of the new Brussels II Regulation will apply in its entirety to these judgments, including the new rules in Section 4 thereof which dispenses with the exequatur procedure for certain types of judgments (see chapters VI and VII BR II).
An essential element of the Brussels II Regulation 2003 is a system of cooperation between central authorities covering both divorce and parental responsibility. Central authorities have a general information and coordination function, as well as cooperate in specific cases. This is especially important with regard to matters of parental responsibility. For this reason a specific Chapter (Chapter IV) is added to the Brussels II Regulation 2003.
Article 53 BR II 2003 orders each Member State to designate one central authority. These may be existing authorities entrusted with the application of international conventions in this area. ‘Each Member State shall designate one or more central authorities to assist with the application of this Regulation and shall specify the geographical or functional jurisdiction of each. Where a Member State has designated more than one central authority, communications shall normally be sent direct to the relevant central authority with jurisdiction. Where a communication is sent to a central authority without jurisdiction, the latter shall be responsible for forwarding it to the central authority with jurisdiction and informing the sender accordingly’.
‘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’ (Article 54 BR II 2003). In the first place, as members of the European Judicial Network, 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.
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.
55 BR II 2003  specifies how cooperation must take place in 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: