The Brussels II Regulation 2003
Common provisions for determining jurisdiction
Besides the recognition and enforcement of judgments, the Brussels II Regulation determines which Member State has jurisdiction over international disputes and relationships concerning the ending of a marriage and parental responsibility, including child abduction. The term ‘jurisdiction’ refers to the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. At international lawsuits on these specific matrimonial matters between citizens of two different EU Member States, the law which determines at which court a lawsuit can be filed, is the Brussels II Regulation 2003.
In fact the Brussels II Regulation 2003 encloses four different kind of rules to establish which Member State(s) has (have) jurisdiction over matrimonial matters as mentioned above. That’s why first of all the question must be answered what kind of legal action exactly is or will be started, since the Regulation distinguished between:
The scope of the Brussels II Regulation 2003 is, compared to its forerunner, the Brussels II Regulation 2000, extended to all civil proceedings relating to parental responsibility by cutting the link with the matrimonial proceedings. However, matters relating to maintenance are excluded, as these are already covered by the Brussels I Regulation 2000 on jurisdiction over civil and commercial matters (Council Regulation (EC) No 44/2001).
The Brussels II Regulation 2003 (Article 20) enables a court to take provisional, including protective, measures in accordance with its national law in respect of a child situated on its territory even if a court of another Member State has jurisdiction as to the substance of the application. The measure can be taken by a court or by an authority having jurisdiction in matters falling within the scope of the Regulation (Article 2.1). A welfare authority or a youth authority may, for instance, be competent to take provisional measures under national law. Article 20 is not a rule which confers jurisdiction. Consequently, the provisional measures cease to have effect when the competent court has taken the measures it considers appropriate.
The courts of the Member States have to look upon certain rules when confronted with a request or lawsuit that falls under the scope of the Brussels II Regulation 2003. This ensures that the same procedure will be followed in the entire European Union.
The first question that has to be answered is at what time a legal proceeding is regarded to be started officially. This answer is important in order to establish whether the same request or lawsuit is filed twice, before different courts.
Article 16 BR II 2003 distinguishes two separate starting points.
A court shall be deemed to be seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent.
But a court shall also be deemed to be seised if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
Internal legal systems are particularly sensitive to matrimonial matters, more sensitive than they are to the property matters covered by the 1968 Brussels Convention and the Brussels I Regulation. That’s why it was felt necessary to stipulate that the courts of the Member States, to whom a request or lawsuit is presented, automatically examine if they have jurisdiction or not, without any need for any party to request it. Where a court of a Member State is seised of a case over which it has no jurisdiction under the Brussels II Regulation 2003 and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction (Article 17 BR II 2003).
See also the following Scheme
The right of defence of a party has to be guaranteed. Therefore it is not sufficient to examine jurisdiction alone, as provided for in Article 17 BR II 2003. It is also necessary to establish a similar rule for examining admissibility, involving staying the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. The intention is that the court can satisfy itself that international jurisdiction is well founded and so avoid possible causes of refusal of recognition wherever possible. (Borras (1998) C 221/45)
This provision is based on Article 20 of the 1968 Brussels Convention and, on the same topic, the provisions in the 1965 Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters. The court, when applying one of the grounds of jurisdiction provided for in the Brussels II Regulation, will examine its jurisdiction where the respondent does not enter an appearance. The wording adopted is simpler than in other Conventions but the essential elements are covered:
Article 19 of Regulation (EC) No 1348/2000 shall apply instead of the provisions of paragraph 1 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation (Article 18(2) BR II 2003). The Directive on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters will replace the provisions described in paragraph 2 once it is transposed by the Member States. Until then, the provisions of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters will apply if the document instituting the proceedings has had to be transmitted abroad in pursuance of the Directive. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). This is regulated in paragraph 2 and 3 of Article 18 BR II 2003.
It may happen that parties initiate court proceedings on the matters of the same divorce, legal separation or marriage annulment or on matters of parental responsibility concerning the same child and the same cause of action in different Member States. This may result in parallel actions and consequently the possibility of irreconcilable judgments on the same issue. Article 19 BR II 2003 provides a mechanism, whereby the court second seized declines its jurisdiction in favour of the court first seized.
As regards proceedings relating to divorce, legal separation or marriage annulment, the mechanism is triggered if these are between the same parties. ‘Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’ (Article 19(1) BR II 2003).
As regards proceedings relating to parental responsibility, the mechanism is triggered if these involve matters of parental responsibility over the same child. It is expected that this will rarely be used, as the jurisdictional regime for parental responsibility does not provide for alternative grounds of jurisdiction. ‘Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’ (Article 19(2) BR II 2003).
Paragraph 3 of Article 19 sets out the consequences of the acceptance of jurisdiction by the court first seised. The provision contains a general rule, which is that the court second seised shall decline jurisdiction in favour of that court. It also contains a special rule whereby the party who brought the relevant action before the court second seised may, if he so wishes, bring that action before the court which claims jurisdiction because it was seised earlier. The first words in the second paragraph of paragraph 3, 'in that case', must therefore be interpreted as meaning that only when the court second seised declines jurisdiction does the party have the possibility of bringing the action before the court having claimed jurisdiction because it was first seised. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)
It should be emphasised that, under this rule, the court second seised must always decline jurisdiction in favour of the court first seised, even when the internal law of that Member State does not provide for separation or annulment.
‘In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter’ (Article 20(1) BR II 2003). This also applies to urgent situations relating to parental responsibility, in which the courts of the Member State where the child is present or his assets are located should be able to take the necessary measures to protect the child's person or property. However, for cases of child abduction a different regime is foreseen in Article 11(3) BR II 2003 for the provisional protection of the child is for cases of child abduction.
The rule laid down in Article 20(1) BR II 2003 is confined to establishing territorial effects in the State in which the measures are adopted. In addition, paragraph 2 of Article 20 BR II 2003 provides that these measures shall cease to apply once the courts having jurisdiction as to the substance of the matter have taken a decision it considers appropriate.