Comment on the Brussels II Regulation (2003)

CHAPTER I SCOPE AND DEFINITIONS

Article 1 Brussels II Regulation (2003)

Article 1 defines both the type of proceedings to which the Regulation applies and their subject matter. 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. This excludes all merely religious proceedings.

The reference to 'courts', in paragraph 1, includes all the authorities, judicial or otherwise, with jurisdiction in matrimonial matters. The term 'civil proceedings' encompasses not only judicial but also administrative proceedings where available under national law.

Paragraph 1 is confined to proceedings relating to the marriage link as such, i.e. annulment, divorce and legal separation. So the recognition of divorce and annulment rulings affects only the dissolution and annulment of the marriage link. Despite the fact that they may be interrelated, the Regulation does not affect issues such as, for example, fault of the spouses, property consequences of the marriage, the maintenance obligation or other possible accessory measures (such as the right to a name, etc.).

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. The concept of 'parental responsibility' has to be defined by the legal system of the Member State in which responsibility is under consideration.

Innitially the term 'parental responsibility' was 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 (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). Yet, by Proposal 2002 the scope of Council Regulation (EC) No 1347/2000 has been extended to cover all civil proceedings relating to parental responsibility by severing the link with the matrimonial proceedings. Still, matters relating to maintenance are excluded, as these are already covered by Council Regulation (EC) No 44/2001 (Brussels I Regulation), which offers a more advanced system of recognition and enforcement.

Moreover, it appears that in some Member States there is a clear separation between criminal measures and subsequent civil measures of protection, such as the placement of the child in an institution. Thus an exclusion from the scope is also provided to make clear that the Member State that takes the criminal measures would not be precluded by virtue of this Regulation from exercising jurisdiction to also take the required civil measures (Proposal 2002 OJ C 203E , 27.8.2002, p. 155–178)

[see comment]

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ECJ of 2 April 2009 C-523/07
1. Article 1(1) must be interpreted as meaning that a decision ordering that a child be immediately taken into care and placed outside his original home is covered by the term ‘civil matters’, for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection.

"The term ‘civil matters’ must be interpreted as capable of extending to measures which, from the point of view of the law of a Member State, fall under public law. That interpretation is supported by Recital 10 in the preamble to the Regulation, according to which that regulation is not intended to apply to ‘public measures of a general nature in matters of education or health.’ That exception confirms that the Community legislature did not intend to exclude all measures falling under public law from the scope of the regulation. Therefore, the answer to the first question is that Article 1(1) of the Regulation must be interpreted as meaning that a decision ordering that a child be immediately taken into care and placed outside his original home is covered by the term ‘civil matters’, for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection".

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ECJ of 27 November 2007 C-435/06 (Opinion of Advocate General Kokott delivered on 20 September 2007)
1. Article 1(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection.

"Consequently, the term ‘civil matters’ must be interpreted autonomously. Only the uniform application of Regulation No 2201/2003 in the Member States, which requires that the scope of that regulation be defined by Community law and not by national law, is capable of ensuring that the objectives pursued by that regulation, one of which is equal treatment for all children concerned, are attained. According to Recital 5 in the preamble to Regulation No 2201/2003, that objective can only be safeguarded if all decisions on parental responsibility fall within the scope of that regulation. Parental responsibility is given a broad definition in Article 2(7) of the regulation, inasmuch as it includes 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. As the Advocate General pointed out at point 44 of her Opinion, in this regard it does not matter whether parental responsibility is affected by a protective measure taken by the State or by a decision which is taken on the initiative of the person or persons with rights of custody. The term ‘civil matters’ must be interpreted as capable of extending to measures which, from the point of view of the legal system of a Member State, fall under public law. That interpretation is, moreover, supported by Recital 10 in the preamble to Regulation No 2201/2003, according to which that regulation is not intended to apply ‘to matters relating to social security, public measures of a general nature in matters of education or health …’ Those exceptions confirm that the Community legislature did not intend to exclude all measures falling under public law from the scope of the regulation. In the light of the foregoing considerations, the answer to Question 1(a) must be that Article 1(1) of Regulation No 2201/2003 is to be interpreted to the effect that a single decision ordering that a child be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’, for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection".

2. Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that regulation.

"In that regard, it should be pointed out that, according to settled case-law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, inter alia, Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 to 24; Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraphs 19 to 21; and Case C-119/05 Lucchini [2007] ECR I-0000, paragraph 61). In accordance with Article 59(1) thereof, Regulation No 2201/2003 is to supersede, for the Member States, the conventions concluded between them which relate to matters governed by the regulation. Under Article 59(2)(a) of the regulation ‘Finland and Sweden shall have the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply, in whole or in part, in their mutual relations, in place of the rules of this Regulation.’ This is the only provision derogating from the rule set out in paragraph 58 of this judgment. It is, as such, to be interpreted strictly. Cooperation between the Nordic States on the recognition and enforcement of administrative decisions on the taking into care and placement of persons does not appear amongst the exceptions listed exhaustively in Regulation No 2201/2003. Harmonised national legislation, such as Law 761/1970, cannot therefore be applied to a decision to take into care and place a child that falls within the scope of Regulation No 2201/2003. That conclusion is not invalidated by Joint Declaration No 28 on Nordic Cooperation. According to that declaration, those States which are members of Nordic Cooperation and members of the Union have undertaken to continue that cooperation, in compliance with Community law. Accordingly, that cooperation must respect the principles of the Community legal order. The answer to Question 2 must therefore be that Regulation No 2201/2003 is to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that regulation."

3. Subject to the factual assessment which is a matter for the national court alone, Regulation No 2201/2003, as amended by Regulation No 2116/2004, is to be interpreted as applying ratione temporis in a case such as that in the main proceedings.

Borras Report 1998: Article 1 Scope [= Art. 1 BR 2003]

19. This matter is the essential point which justifies the very existence of the Convention and its extent which, as indicated in paragraph 12, includes rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters. Determining the scope involves separate issues, relating on the one hand to the type of proceedings conducted and on the other to matters covered (Borras (1998) C 221/35).

20. As to the type of proceedings, paragraph 1 refers to ‘civil proceedings’, to the exclusion of all other types of proceedings, since these are the normal proceedings conducted in matters of divorce, legal separation or marriage annulment. The term ‘civil’ is nevertheless intended to define the object of the Convention clearly. It is to be understood not only as a means of including the administrative proceedings referred to in paragraph 2 but also as a means of excluding all merely religious proceedings. The result is as follows:

A. In addition to civil judicial proceedings, the scope of the Convention also includes other non-judicial proceedings occurring in matrimonial matters in certain States. Administrative procedures officially recognised in a Member State are therefore included. In Denmark, for instance, there is, in addition to the judicial course of action, an administrative procedure before the Statsamt (District Council) or before the Københavns Overpræsidium (which performs the same functions as the Statsamt for Copenhagen). For that procedure to apply, there must be grounds for divorce and agreement between the spouses both on the divorce and on matters connected with it (custody, maintenance, etc.). Appeals against the judgments given by the Statsamt and the Københavns Overpræsidium lie to the Ministry of Justice (Civil Law Directorate) and may then be subject to judicial review through the normal procedure. In the same way, it may be noted that in 1983 Finland adopted a system under which matters relating to custody, residence and visiting may be settled outwith the legal proceedings by agreement that must be approved by the ‘kunnan sosiaalilautakunta/kommunal socialnämnd’ (communal social (welfare) board): ‘Laki lapsen huollosta ja tapaamisoikeudesta’/‘Lag angående vårdnad om barn och umgängesrätt’, Law 361 of 8 April 1983, Sections 7, 8, 10, 11 and 12).

For that reason, the text stipulates, as did Article 1 of the 1970 Hague Convention on the recognition of divorces and legal separations, that the term ‘court’ shall cover all the authorities, judicial or otherwise, with jurisdiction in matrimonial matters in the Member States (Borras (1998) C 221/35).

B. The Convention excludes from its scope religious proceedings, which may become more frequent as a result of immigration (Muslim and Hindu marriages, for instance). Article 40 [was 42] safeguards agreements concluded between certain Member States and the Holy See (see commentary on Article 42 paragraph 120).

21. In the matters covered, a distinction also needs to be made between purely matrimonial questions and questions of parental responsibility (Borras (1998) C 221/35).

22. The Convention is confined to proceedings relating to the marriage bond as such, i.e. annulment, divorce and legal separation. So the recognition of divorce and annulment rulings affects only the dissolution of the marriage link. Dispite the fact that they may be interrelated, the Convention does not affect issues such as, for example, fault of the spouses, property consequences of the marriage, the maintenance obligation or other possible accessory measures (such as the right to a name, etc.). As to maintenance, in addition to other international instruments, jurisdiction and the recognition and enforcement of judgments are covered by the 1968 Brussels Convention which contains a specific jurisdiction rule (Article 5(2)) and there is also the Rome Convention of 6 November 1990 on the simplification of procedures for the recovery of maintenance payments, which is no longer in force. On all other issues the rules (national or international) currently applicable between the States in question will continue to apply (Borras (1998) C 221/35-36).

23. The most complex issue is parental responsibility since in some States the legal system requires that the decision on matrimonial matters includes parental responsibility, while in others matrimonial and child-protection issues follow totally separate routes, that is to say the judgment on the marriage does not necessarily cover parental responsibility and may even refer judgment on it to other authorities. For that reason, separate problems had to be faced and it was difficult to bring all States to accept the text in paragraph 1(b) which includes the issue in this Convention rather than leaving it for a separate text, as some delegations had originally proposed. It is a question, however, only of the matters relating to parental responsibility that appear to be linked to the matrimonial proceedings when those take place (see Article 3(3))(Borras (1998) C 221/36).

24. The first problem to be resolved was the inclusion of the topic of parental responsibility. In addition to the differences in legal systems mentioned above, difficulties also arose from the fact that the Hague Conference was preparing the 1996 Convention on child protection. The consequences of that situation are reflected in the text of Article 3. The concept of ‘parental responsibility’ presents problems too, since it has to be defined by the legal system of the Member State in which responsibility is under consideration. For matters concerning maintenance, see paragraph 22. The term ‘parental responsibility’, which is a difficult one to translate for some countries, appears, however, in various international Conventions and in particular in the 1996 Hague Convention so that it does have a degree of unifying potential (Borras (1998) C 221/36).

25. The second problem was to determine which children were affected by the provision. There was agreement that the provision covers both biological and adopted children of the couple. Some States also raised the possibility of dealing with parental responsibility not just for children of both spouses but also what are called ‘children of the family’. That would include, for instance, the children of one or other of the spouses from a previous union. That situation is known in English, Scots and Netherlands law. The view that prevailed was that the Convention had to be confined to children of both spouses, in view of the fact that the context is that of measures relating to parental responsibility taken in close conjunction with divorce, separation or annulment proceedings. The other solution could also affect the fundamental rights of the father or mother living in another Member State.

The consequence of that provision is to be seen in Article 3(3), which determines when the jurisdiction regarding parental responsibility conferred on the authorities of the State in which a decision is to be taken on the matrimonial proceedings is to cease.

The decision to restrict the scope of the Convention as regards parental responsibility to judgments concerning the ‘children of both spouses’ will not, however, prevent Member States from deciding in future to apply jurisdictional criteria identical to those laid down in Article 3 to ‘children of the family’ not included in the former category. The jurisdictional criteria applicable to such children will not be affected by the Convention and it will therefore be internal law that will govern jurisdiction and the recognition and enforcement of judgments relating to such children (Borras (1998) C 221/36).

26. Finally, in the light of other international texts, particularly the 1989 United Nations Convention on the rights of the child it must be understood that each child is to be considered individually. That means that although the issue is included in general terms in the scope of the Convention, for application it will be necessary to ensure that the conditions set out in Article 3 apply in respect of each one of the children (Borras (1998) C 221/36).

Article 2 Brussels II Regulation (2003)

Article 2 Definitions for the purposes of this Regulation: 1. the term ‘court' shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1; 2. the term ‘judge' shall mean the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation; 3. the term ‘Member State' shall mean all Member States with the exception of Denmark; 4. the term ‘judgment' shall mean a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision; 5. the term ‘Member State of origin' shall mean the Member State where the judgment to be enforced was issued; 6. the term ‘Member State of enforcement' shall mean the Member State where enforcement of the judgment is sought; 7. the term ‘parental responsibility' shall mean 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 shall include rights of custody and rights of access; 8. the term ‘holder of parental responsibility' shall mean any person having parental responsibility over a child; 9. the term ‘rights of custody' shall include 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; 10. the term ‘rights of access' shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time; 11. the term ‘wrongful removal or retention' shall mean a child's removal or retention where: (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and (b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility.

Article 2 defines some important terms used in the Regulation.

'Court and Judgment': The definitions of the terms 'court' and 'judgment' correspond to Articles 1(2) and 13(1) of Council Regulation (EC) No 1347/2000 respectively.

'Member State': The Proposal does not apply to Denmark, in conformity with the Protocol on the position of Denmark annexed to the Treaty on the European Union and the Treaty establishing the European Community.

Ireland and the United Kingdom are bound by Council Regulation (EC) No 1347/2000. They have also already given notice of their wish to take part in the adoption and application of the French initiative on rights of access and the Commission proposal on parental responsibility, in conformity with the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and the Treaty establishing the European Community.

'Member State of origin' and 'Member State of enforcement': The terms 'Member State of origin' and 'Member State of enforcement' are used to facilitate the reading.

'Parental responsibility': A general definition of the term 'parental responsibility' is provided. This definition is broad, as the Commission considers it important not to discriminate between children by excluding certain measures and thus leaving certain children and situations outside the scope of the Regulation.

Hence the term relates to both the person and the property of the child, while a holder of parental responsibility may be either a natural or a legal person. The relevant rights and duties may be acquired by judgment, by operation of law or by an agreement having legal effect. It is further specified that the term includes rights of custody and rights of access.

'Holder of parental responsibility': The term 'holder of parental responsibility' is used to facilitate the reading.

'Rights of custody': Contrary to common usage, a broad definition is given to the term 'rights of custody' to encompass any right to have a say in determining the child's place of residence. In fact, the definition follows closely Article 5 of the 1980 Hague Convention, [10] albeit using "have a say in determining" instead of "determine", which better reflects the case law under the Convention. The term is then used in the definition of child abduction, which is based on a breach of rights of custody.

[10] XXVIII. Convention on the civil aspects of international child abduction (concluded October 25, 1980). The Convention is in force in all Member States.

'Rights of access': This definition mirrors the definition in Article 5 of the 1980 Hague Convention.

'Child abduction': This definition mirrors the definition in Article 3 of the 1980 Hague Convention. This requires taking notice directly of the law or of a judgment of the Member State of the habitual residence of the child to determine whether a child abduction has taken place.

[see comment]

CHAPTER II JURISDICTION

SECTION 1 Divorce, legal separation and marriage annulment

Article 3 Brussels II Regulation (2003)

Article 3 General jurisdiction 1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: — the spouses are habitually resident, or — the spouses were last habitually resident, insofar as one of them still resides there, or — the respondent is habitually resident, or — in the event of a joint application, either of the spouses is habitually resident, or — the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or — the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile' there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile' of both spouses. 2. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

The forums of jurisdiction adopted are designed to meet objective requirements, are in line with the interests of the parties, involve flexible rules to deal with mobility and are intended to meet individuals' needs. Only objective grounds appear in Article 3 and they are subject to the examination as to jurisdiction provided for in Article 9. The grounds in Article 3 are therefore set out as alternatives and inclusion in either (a) or (b) is not to be interpreted as an order of precedence. The grounds set out in this Article are the only ones which can be used for the matter covered; the list is therefore exhaustive and closed.

The grounds for determining the jurisdiction of a State's courts to rule on matrimonial matters coming within the scope of the Regulation are based on the principle of a genuine connection between the person and a Member State. (...). The grounds in point (a) of paragraph 1 include the following:

• that international jurisdiction should lie with the courts of the place in which the spouses are habitually resident at the time of application;
• the jurisdiction of the courts of the State in which the spouses were last habitually resident, in so far as one of them still resides there;
• place in which the respondent is habitually resident;
• in the event of a joint application, the application may be made to the authorities of the place in which either spouse is habitually resident.

In addition to these criteria, there are two others applicable in exceptional cases, based on the forum actoris in conjunction with other conditions. Consequently, the following are also accepted:

• jurisdiction may lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year;
• jurisdiction enjoyed by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

  [see comment]
  

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  ECJ 2 April 2009 C-523/07
  5. Where the court of a Member State does not have jurisdiction at all, it must declare of its own motion that it has no jurisdiction, but is not required to transfer the case to another court. However, in so far as the protection of the best interests of the child so requires, the national court which has declared of its own motion that it has no jurisdiction must inform, directly or through the central authority designated under Article 53 of Regulation No 2201/2003, the court of another Member State having jurisdiction. (See also Opinion of Advocate General Kokott, delivered on 29 January 2009)
  

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  ECJ 16 July 2009, C-168/08
  1. Where the court of the Member State addressed must verify, pursuant to Article 64(4) of Council Regulation (EC) No 2201/2003, whether the court of the Member State of origin of a judgment would have had jurisdiction under Article 3(1)(b) of that Regulation, the latter provision precludes the court of the Member State addressed from regarding spouses who each hold the nationality both of that State and of the Member State of origin as nationals only of the Member State addressed. That court must, on the contrary, take into account the fact that the spouses also hold the nationality of the Member State of origin and that, therefore, the courts of the latter could have had jurisdiction to hear the case.

  "By its first question, the referring court asks, in essence, whether Article 3(1)(b) of Regulation No 2201/2003 must be interpreted as meaning that, where spouses hold both the nationality of the Member State of the court seised and that of the same other Member State, the court of the State in which proceedings are brought must give precedence to the nationality of the Member State to which it belongs. As a preliminary point, it should be noted that courts seised in situations such as that in the main proceedings, which are governed by the transitional provisions on recognition laid down in Article 64(4) of Regulation No 2201/2003, are called upon to rule on the jurisdiction of the courts of another Member State. Such situations differ from those governed more directly by the provisions of Chapter III of that regulation, concerning the recognition and enforcement of judgments, in relation to which Article 24 of the regulation prohibits review of jurisdiction of the court of origin. According to the documents before the court, in the judgment which is being contested in the main proceedings, the Paris Court of Appeal held that the jurisdiction of Pest Court, to the extent that this was founded on Mr Hadadi’s Hungarian nationality, a ground of jurisdiction not recognised by the French rules on international jurisdiction, was ‘in reality very flimsy’, whereas the jurisdiction of the courts where the marital home is situated, that is France, was by comparison ‘particularly clear’. According to the Commission of the European Communities, the first question referred for a preliminary ruling has been posed because, where there is a conflict between French nationality and another nationality, French courts tend ‘most often to give precedence to the nationality of the State of the court seised’. That view is confirmed by the argument submitted to the Court by Ms Mesko, who contends that Article 3(1) of Regulation No 2201/2003 does not contain any specific provisions governing the case of dual nationality, with the result that each Member State applies its own nationality law in this type of situation. According to Ms Mesko, it follows from French academic writing and case-law that, in case of conflicting nationalities, if one of them is the nationality of the State of the court seised, it will prevail. In those circumstances, the question arises whether, given that, as Ms Mesko points out, Regulation No 2201/2003 does not deal expressly with the case of spouses having the same dual nationality, Article 3(1) of the regulation must be interpreted in one way where the two spouses have the same two nationalities in common and another way where they have only the same, single, nationality. According to settled case-law, it follows from the need for uniform application of Community law and from the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, in relation to Regulation No 2201/2003, Case C-523/07 A [2009] ECR I-0000, paragraph 34). In that regard, it should be pointed out that Article 3(1) of Regulation No 2201/2003 does not make any express reference to the law of the Member States for the purpose of determining the exact scope of the ‘nationality’ ground of jurisdiction. Moreover, Regulation No 2201/2003 does not appear, at least in principle, to make a distinction according to whether a person holds one or, as the case may be, several nationalities. Accordingly, where the spouses have the same dual nationality, the court seised cannot overlook the fact that the individuals concerned hold the nationality of another Member State, with the result that persons with the same dual nationality are treated as if they had only the nationality of the Member State of the court seised. That would have the effect of precluding such persons, in the context of the transitional rule of recognition referred to in Article 64(4) of Regulation No 2201/2003, from relying on Article 3(1)(b) of that regulation before a court of the Member State addressed in order to establish the jurisdiction of the courts of another Member State, even though those persons hold the nationality of the latter State. On the contrary, in the context of Article 64(4) of the regulation, where the spouses hold both the nationality of the Member State of the court seised and that of the same other Member State, that court must take into account the fact that the courts of that other Member State could, since the persons concerned hold the nationality of the latter State, properly have been seised of the case under Article 3(1)(b) of Regulation No 2201/2003. Consequently, the answer to the first question is that, where the court of the Member State addressed must verify, pursuant to Article 64(4) of Regulation No 2201/2003, whether the court of the Member State of origin of a judgment would have had jurisdiction under Article 3(1)(b) of that regulation, the latter provision precludes the court of the Member State addressed from regarding spouses who each hold the nationality both of that State and of the Member State of origin as nationals only of the Member State addressed. That court must, on the contrary, take into account the fact that the spouses also hold the nationality of the Member State of origin and that, therefore, the courts of the latter could have had jurisdiction to hear the case".

  2. Where spouses each hold the nationality of the same two Member States, Article 3(1)(b) of Regulation No 2201/2003 precludes the jurisdiction of the courts of one of those Member States from being rejected on the ground that the applicant does not put forward other links with that State. On the contrary, the courts of those Member States of which the spouses hold the nationality have jurisdiction under that provision and the spouses may seise the court of the Member State of their choice.

  "By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1)(b) of Regulation No 2201/2003 must be interpreted as meaning that, in order to determine the court which has jurisdiction in respect of the divorce of persons having the same dual nationality, only the nationality of the Member State with which those persons have the closest links – the ‘most effective’ nationality – is to be taken into account, so that the courts of that State alone have jurisdiction on the basis of nationality (second question), or whether, on the contrary, both nationalities are to be taken into account, so that the courts of those two Member States can have jurisdiction on that basis, allowing the persons concerned to choose the Member State in which to bring proceedings (third question). Ms Mesko and the Polish Government argue that, where the spouses have the same dual nationality, the ground of jurisdiction of the more effective nationality should be applied. In that regard, Ms Mesko, relying on various factors, in particular the fact that she and Mr Hadadi have been residing in France since 1980, considers that, in the case in the main proceedings, French nationality is the more effective. She submits that, if both nationalities were put on the same footing, that would trigger a ‘rush to the courts’, encouraging abuse of the system, with one spouse hurrying to seise the courts of one Member State in order to prevent the other spouse from instituting proceedings before the courts of another Member State. The Polish Government considers that the choice of the court having jurisdiction should not be left to the parties, because such a solution would accord an excessive privilege to persons holding the same dual nationality and allow them the possibility de facto of choosing the court having jurisdiction, whereas Regulation No 2201/2003 does not grant the same option to others. In addition, according to that government, upholding the jurisdiction of the courts of a Member State in which the spouses had not lived for a long time would undermine the effectiveness and fairness of court judgments and lead to certain abuses, such as ‘forum shopping’. By contrast, according to Mr Hadadi, the French, Czech, German, Hungarian, Slovak and Finnish Governments, as well as the Commission, where the same dual nationality is held, each of the spouses is entitled, under Article 3(1)(b) of Regulation No 2201/2003, to institute divorce proceedings before the courts of either of the two Member States of which he or she and the other spouse hold the nationality. In that regard, it should be noted at the outset that, according to recital 1 in the preamble to Regulation No 2201/2003, that regulation is to contribute to creating an area of freedom, security and justice, in which the free movement of persons is ensured. To that end, Chapters II and III of the regulation lay down rules on jurisdiction and on recognition and enforcement of judgments concerning the dissolution of matrimonial ties. In that context, Article 3(1)(a) and (b) of Regulation No 2201/2003 provides for a number of grounds of jurisdiction, without establishing any hierarchy. All the objective grounds set out in Article 3(1) are alternatives. Taking into account that regulation’s purpose of ensuring legal certainty, Article 6 thereof provides, in substance, that the grounds of jurisdiction contained in Articles 3 to 5 of the regulation are exclusive in nature. It follows that the system of jurisdiction established by Regulation No 2201/2003 concerning the dissolution of matrimonial ties is not intended to preclude the courts of several States from having jurisdiction. Rather, the coexistence of several courts having jurisdiction is expressly provided for, without any hierarchy being established between them. In that regard, while the grounds of jurisdiction listed in Article 3(1)(a) of that regulation are based in various respects on the habitual residence of the spouses, that in Article 3(1)(b) is ‘the nationality of both spouses or, in the case of the United Kingdom and Ireland, the “domicile” of both spouses’. Thus, except in relation to the latter two Member States, the courts of the other Member States of which the spouses hold the nationality have jurisdiction in proceedings relating to the dissolution of matrimonial ties. However, there is nothing in the wording of Article 3(1)(b) to suggest that only the ‘effective’ nationality can be taken into account in applying that provision. Article 3(1)(b), inasmuch as it makes nationality a ground of jurisdiction, endorses a link that is unambiguous and easy to apply. It does not provide for any other criterion relating to nationality such as, for example, how effective it is. Moreover, no basis can be found in the objectives of that provision or in the context of which it forms part for an interpretation according to which only an ‘effective’ nationality can be taken into consideration for the purposes of Article 3(1) of Regulation No 2201/2003. First, such an interpretation would restrict individuals’ choice of the court having jurisdiction, particularly in cases where the right to freedom of movement for persons had been exercised. In particular, since habitual residence would be an essential consideration for the purpose of determining the most effective nationality, the grounds of jurisdiction provided for in Article 3(1)(a) and (b) of Regulation No 2201/2203 would frequently overlap. On the facts, that would amount to establishing, with regard to persons holding a number of nationalities, a hierarchy between the grounds of jurisdiction laid down in Article 3(1), for which there is no basis in the wording of that paragraph. By contrast, a couple holding only the nationality of one Member State would always be able to seise the courts of that State, even if they had not had their habitual residence in that Member State for many years and even if they had few real links with that State. Secondly, in the light of the imprecise nature of the concept of ‘effective nationality’, a whole set of factors would have to be taken into consideration, not always leading to a clear result. The need to check the links between the spouses and their respective nationalities would make verification of jurisdiction more onerous and thus be at odds with the objective of facilitating the application of Regulation No 2201/2003 by the use of a simple and unambiguous connecting factor. It is true that, pursuant to Article 3(1)(b) of Regulation No 2201/2003, the courts of a number of Member States can have jurisdiction where the individuals in question hold several nationalities. However, as the Commission and the French, Hungarian and Slovak Governments pointed out, were the courts of several Member States to be seised pursuant to that provision, the conflict of jurisdiction could be resolved by applying the rule laid down in Article 19(1) of that regulation. Finally, it should be acknowledged that Regulation No 2201/2003, in so far as it regulates only jurisdiction but does not lay down conflict rules determining the substantive law to be applied, might indeed, as Ms Mesko claims, induce spouses to rush into seising one of the courts having jurisdiction in order to secure the advantages of the substantive divorce law applicable under the private international law rules used by the court seised. However, contrary to Ms Mesko’s claims, such a fact cannot, by itself, mean that the seising of a court having jurisdiction under Article 3(1)(b) of that regulation may be regarded as an abuse. As paragraphs 49 to 52 of the present judgment make clear, seising the courts of a Member State of which both spouses hold the nationality, even in the absence of any other link with that Member State, is not contrary to the objectives pursued by that provision. In those circumstances, the answer to the second and third questions referred must be that, where spouses each hold the nationality of the same two Member States, Article 3(1)(b) of Regulation No 2201/2003 precludes the jurisdiction of the courts of one of those Member States from being rejected on the ground that the applicant does not put forward other links with that State. On the contrary, the courts of those Member States of which the spouses hold the nationality have jurisdiction under that provision and the spouses may seise the court of the Member State of their choice".

Borras Report 1998: Article 2 Divorce, legal separation and marriage annulment [= Art. 3 BR 2003]

27. The Forums of jurisdiction adopted are designed to meet objective requirements, are in line with the interests of the parties, involve flexible rules to deal with mobility and are intended to meet individuals’ needs without sacrificing legal certainty. It is therefore not surprising that, in view of these requirements, this Article, along with Article 3, occupied a large part of the lengthy discussions which led to the adoption of this text. The solution adopted is the result of a difficult balance between some of the jurisdictional criteria adopted. It was necessary to establish grounds of jurisdiction in matrimonial proceedings without becoming involved in any examination of the situation in which the validity of a marriage needs to be considered as part of annulment proceedings when one of the spouses is deceased or after the decease of both spouses, since that situation is not within the scope of the Convention. Such situations arise, in the majority of cases, as preliminary questions relating to successions. Instead, it will be resolved by the international instruments applicable in the matter, such as the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, or according to the internal legislation of the State where that is possible (Borras (1998) C 221/36-37).

28. The view was that, unlike the 1968 Brussels Convention, which involves an interplay of the general rule laid down in Article 2 and the special grounds of jurisdiction set out in Article 5, the peculiarity of the matter covered in this instance did not lend itself to a provision similar to Article 2 of the Brussels Convention establishing a general forum, nor should a hierarchy be established between the grounds adopted. The exclusion of a general forum and the establishment of a concrete list of forums is a logical step since, precisely as a result of marriage breakdown, the situation constantly changes at short notice. The result is that the grounds adopted are objective, alternative and exclusive, in the manner explained below.

Only objective grounds appear in Article 2 and they are subject to the examination as to jurisdiction provided for in Article 9. Therefore if a spouse initiates proceedings in a Member State whose courts do not have jurisdiction on any of the grounds set out in Article 2, those courts cannot claim jurisdiction by reason of the fact that the other spouse makes an appearance to contest the application. Instead the court must examine whether it has jurisdiction and if it does not, must decline. For the role of personal choice, see paragraph 31 of Article 2(1)(a).

The grounds in Article 2 are therefore set out as alternatives and inclusion in either (a) or (b) is not to be interpreted as an order of precedence. Point (a) uses habitual residence in order to determine international jurisdiction, whereas the Brussels Convention uses domicile. In point (b), bearing in mind the specific aspects of certain national legislation, the ground of jurisdiction is either nationality or ‘domicile’ as the term is used in the United Kingdom and Ireland. Under the 1968 Brussels Convention, a party’s domicile is determined in accordance with the internal law of the State of the forum (Article 52). In this case, there was discussion as to whether a similar provision should be included in relation to habitual residence: on this issue see paragraph 31 (Borras (1998) C 221/37).

29. The grounds set out in this Article are the only ones which can be used for the matter covered; they can therefore be termed ‘exclusive’ (see commentary on Article 7). That term, however, cannot be understood in the same way as in the Brussels Convention where, for certain matters provided for in Article 16 [larlgy changed] thereof, only the courts of a particular Member State have jurisdiction and that rule takes precedence over other grounds. In the case we are dealing with here, the term ‘exclusive’ must be understood as meaning that only the grounds set out may be used and that they are alternatives none of which takes precedence over the rest. The list is therefore exhaustive and closed. It is therefore not necessary to include a rule similar to the one in Article 28(1) of the 1968 Brussels Convention (Borras (1998) C 221/37).

30. The grounds for determining the jurisdiction of a State’s courts to rule on matrimonial matters coming within the scope of the Convention fall into two groups which are set out in points (a) and (b) respectively. Paragraph 2 of the Article applies to point (b) of paragraph 1 and also to the last indent in point (a) (for the effects of the declaration, see Article 7 and Article 8(2)).

The grounds adopted are based on the principle of a genuine connection between the person and a Member State. The decision to include particular grounds reflects their existence in various national legal systems and their acceptance by the other Member States or the effort to find points of agreement acceptable to all (Borras (1998) C 221/37).

31. Of the grounds in point (a) of paragraph 1, the rule that international jurisdiction should lie with the courts of the place in which the spouses are habitually resident at the time of application (first indent) is a ground widely accepted in the Member States and will undoubtedly apply in the great majority of cases. Nor does the ground in the third indent (place in which ‘the respondent is habitually resident’) create any problems in that it corresponds to the general ground based on the principle of actor sequitur. There was also a broad consensus on the ground to apply in the event of a joint application (fourth indent) as the application may be made to the authorities of the place in which either spouse is habitually resident; in that case, it should be noted that, unlike the 1968 Brussels Convention, this Convention allows only a minor role for the spouses’ free choice, which appears only in this limited form: it is logical that it should be so since the issue is matrimonial proceedings. (Borras (1998) C 221/38)

32. Acceptance of the other grounds in this paragraph was more problematic. In principle, there should be no objection to the jurisdiction of the courts of the State in which the spouses were last habitually resident, in so far as one of them still resides there (second indent). The problem arising for some Member States was how to reconcile that situation with the situation of the other spouse who, as a result of the marriage breakdown, often returns to his/her country of domicile or nationality prior to the marriage and there comes under the limitations laid down in the fifth and sixth indents, provisions which will undoubtedly have consequences regarding lis pendens (see Article 11). (Borras (1998) C 221/38)

Both these provisions allow forum actoris in exceptional cases on the basis of habitual residence combined with other elements. That is why the fifth indent allows jurisdiction to lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year. Since some Member States did not find the rule set out in those terms sufficient and bearing in mind the frequency with which the spouse’s new residence is in the State of nationality or of ‘domicile’, in the sense in which this term is used in the United Kingdom and Ireland, the sixth indent adds the possibility of having the matrimonial proceedings heard by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality or of domicile as defined in the United Kingdom and in Ireland. That provision was introduced as a result of the political compromise adopted in December 1997 following a formal statement by some States that acceptance of that forum was an essential prerequisite of vital importance for an overall compromise solution. The solution takes into account the situation of the spouse who returns to his or her country but does not mean establishing a ground based solely on the forum of the applicant: on the one hand, the existence of nationality or ‘domicile’ demonstrates that there is an initial connection with that Member State; on the other hand, in order to initiate proceedings in that Member State, he or she must have resided there for at least six months immediately before the application was made. The last requirement led to a discussion of establishment of habitual residence, taking account of the situation of the spouse who returns to the country of origin as a consequence of the breakdown of the marriage. The existence of the connection will be assessed by the court. 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. However, although not applicable under the 1968 Brussels Convention, 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’. Other proposals were therefore rejected whereby it would be sufficient for the applicant to have his or her habitual residence there for a total of at least one year in the five years immediately before the application was made, even when combined with nationality or ‘domicile’. Moreover, the mutual confidence which underlies the preparation of this Convention, like the 1968 Brussels Convention, should be sufficient to overcome the existing reluctance to have a case heard by the courts of another State. (Borras (1998) C 221/38)

33. Another alternative to the grounds listed above, which for organisational reasons appears in a separate point (point (b) of paragraph 1), is to allow the matrimonial proceedings to take place before the courts of the State of nationality of both spouses or of ‘domicile of both spouses’ established on a long-term settled basis. This provision merits particular attention and comment.

In the first instance, it is worth emphasising that the nationality or ‘domicile’ must be common to both spouses. Some States wanted to allow that condition to apply to only one spouse. That possibility was rejected since it would be equivalent to pure forum actoris, often with no real connection whatsoever with the State in question, and would thus be contrary to the spirit of the Convention.

Establishing the possibility of having the authorities of the State of nationality or ‘domicile’ of both spouses handle proceedings does not mean that the courts of the State can in every instance examine whether one or other of those criteria has been met. What is intended is that in the light of their internal system, States will adopt one or other of the criteria. Hence, just as common nationality may be acceptable to Spain, ‘domicile’ will be the criterion for the United Kingdom and for Ireland. It is precisely for that reason that paragraph 2 of this Article requires the Member States to stipulate in a declaration made when giving the notification referred to in Article 47(2) whether it will be applying the criterion of nationality or of ‘domicile’ referred to in paragraph 1(b).

The Convention is silent on the consequences of dual nationality, so the judicial bodies of each State will apply their national rules within the framework of general Community rules on the matter. (Borras (1998) C 221/38-39)

34. The problems arising from the many language versions of the Convention made it necessary to make some special arrangements for the term ‘domicile’ as it appears in this text but only in relation to this Convention. That is the purpose of Article 2(3). The problems and solutions appearing in the 1968 Brussels Convention have been adverted to. In this instance, when extending the Convention to matrimonial matters and having to include nationality as a criterion for determining international jurisdiction, it was not possible to follow the 1968 criteria. While nationality is a criterion which does not raise any major problems as to meaning, domicile presented a more complex problem since it appears in this text with the meaning it has in the United Kingdom and Ireland. This is the reason why in most texts the equivalent of the word ‘domicile’ appears in inverted commas to indicate that it has a special meaning. There can therefore be no possibility of equating this term with habitual residence as referred to in paragraph 1.

In a detailed document, the United Kingdom delegation provided clarification on the concept of ‘domicile’, purely for the purposes of the Convention without attempting to give a definitive account. The essential purpose of domicile is to connect a person with the country in which he has his home permanently or indefinitely. It is used so as to make that person subject to the law and legal system of that country for several purposes of broad application, principally concerning important matters affecting family relations and family property. In United Kingdom law, the rules for determining a person’s domicile operate generally to ensure that every person has a domicile, and only one domicile, at all times. In addition to rules for determining the domicile of children (domicile of origin), there are rules for establishing the domicile of adults, either by acquisition of a new domicile (domicile of choice) or by revival of the domicile of origin. The same principles apply in Irish law. (Borras (1998) C 221/39)

Article3a Brussels II Regulation (2003)

Article 3a Choice of court by the parties in proceedings relating to divorce and legal separation 1. The spouses may agree that a court or the courts of a Member State are to have jurisdiction in a proceeding between them relating to divorce or legal separation provided they have a substantial connection with that Member State by virtue of the fact that a. any of the grounds of jurisdiction listed in Article 3 applies, or b. it is the place of the spouses’ last common habitual residence for a minimum period of three years, or c. one of the spouses is a national of that Member State or, in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States. 2. An agreement conferring jurisdiction shall be expressed in writing and signed by both spouses at the latest at the time the court is seised."

This provision introduces a limited possibility for the spouses to designate by common agreement the competent court ("prorogation") in a proceeding relating to divorce and legal separation. It corresponds to Article 12 of Council Regulation No 2201/2003, which allows the parties to agree on the competent court in matters of parental responsibility under certain conditions.

This enhanced party autonomy will improve legal certainty and predictability for the spouses. The current jurisdiction rules do not allow spouses to apply for divorce in a Member State of which only one of them is a national in the absence of another connecting factor. The new rule will in particular improve access to court for spouses of different nationalities by enabling them to designate by common agreement a court or the courts of a Member State of which one of them is a national. This possibility applies to spouses living in a Member State as well as spouses living in third States. Spouses who designate a competent court may also avail themselves of the possibility to choose the applicable law pursuant to Article 20a.

Certain formal requirements need to be respected to ensure that both spouses are aware of the consequences of their choice. The possibility to choose the competent court does not apply to proceedings relating to marriage annulment where party autonomy is considered inappropriate[Explanatory Memorandum COM) (2006) final].

Article 4 Brussels II Regulation (2003)

Article 4 Counterclaim The court in which proceedings are pending on the basis of Article 3 [and 3a] shall also have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of this Regulation.

This Article contains the classic rule on counterclaims, giving jurisdiction to the court in which the initial proceedings are pending should a counterclaim be made, provided the subject of both the initial proceedings and the counterclaim come within the scope of the Regulation. This provision has to be seen in conjunction with Article 11 (lis pendens) in order to differentiate between the situations covered by each Article although in practice they may in many cases produce identical effects(COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 5 Counterclaim [Art. 4 BR 2003]

42. This Convention contains the classic rule on counterclaims, giving jurisdiction to the court in which the initial proceedings are pending should a counterclaim be made. The limited scope of the Convention and the frequency with which matters covered by it arise in connection with other matters make it necessary to specify that that rule applies only when the subject of both the initial proceedings and the counterclaim come within the scope of this Convention. This provision has to be seen in conjunction with Article 11 (see commentary on that Article in relation to lis pendens) in order to differentiate between the situations covered by each Article although in practice they may in many cases produce identical effects. (Borras (1998) C 221/42)

Article 5 Brussels II Regulation (2003)

Article 5 Conversion of legal separation into divorce Without prejudice to Article 3 [and 3a], a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides.

The conversion of legal separation into divorce is fairly frequent in some legal systems. In some States separation is an obligatory step prior to divorce and a stated period of time must usually elapse between the separation and the divorce. That distinction is, however, unknown in other legal systems.

In such instances, in accordance with the provisions of the Regulation it is possible to obtain the divorce either before the courts of the State having jurisdiction under Article 2 or before the courts of the State in which the separation was obtained, it being clearly understood that the fact that conversion is possible does not itself depend on the Regulation but is a possibility allowed under the internal law of the State in question(COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

[see comment]

Borras Report 1998: Article 6 Conversion of legal separation into divorce [= Art. 5 BR 2003]

43. The conversion of legal separation into divorce is fairly frequent in some legal systems. In some State separation is an obligatory step prior to divorce and a stated period of time must usually elapse between the separation and the divorce. That distinction is, however, unknown in other legal systems.

The Working Party arrived at this provision after having checked whether there were other situations in which applications might arise to supplement or update a judgment in matrimonial proceedings. The finding was that only conversion of legal separation into divorce should be covered by this provision.

In such instances, in accordance with the provisions of the Convention it is possible to obtain the divorce either before the courts of the State having jurisdiction under Article 2 or before the courts of the State in which the separation was obtained, it being clearly understood that the fact that conversion is possible does not itself depend on the Convention but is a possibility allowed under the internal law of the State in question. (Borras (1998) C 221/42)

Article 6 Brussels II Regulation (2003)

Only the criteria listed in Articles 2 to 6 may be used, as alternatives and without any order of precedence. However, this Article is intended to emphasise the exclusive nature of the grounds contained in earlier Articles for determining the jurisdiction of a State's authorities. It should be noted that the exclusive nature of the jurisdiction established refers only to matrimonial matters and questions of parental responsibility connected with such cases and does not therefore affect the rules of jurisdiction in matters of protection of minors where they are independent of the matrimonial proceedings. The exclusive nature should be understood without prejudice to the rules laid down in Articles 7(1) [was 8(1)] and 36(2) [ was 38(2)].

Where the grounds under Article 2 are either the spouse's habitual residence or his or her nationality, an application may be made to a court only in accordance with the rules laid down in the earlier Articles. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

In future, according to Propsal 2006, this Article will be repealed.

[see comment]

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ECJ 29 November 2007 C-68/07
Articles 6 and 7 of Council Regulation (EC) No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

"The national court is essentially asking whether Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State can base their jurisdiction to hear the petition on their national law, even though the courts of another Member State have jurisdiction under Article 3 of that regulation. In the main proceedings, it is not disputed that, in accordance with Article 3(1)(a) of Regulation No 2201/2003, the French courts have jurisdiction under the regulation to hear Mrs Sundelind Lopez’s petition under either the second indent of that provision, as the last place where the spouses were habitually resident, to the extent that she is still resident in France, or the fifth indent of that same provision, as the place where she is habitually resident, since she has resided in France for at least a year immediately before her divorce petition was introduced. According to the clear wording of Article 7(1) of Regulation No 2201/2003, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation that jurisdiction is to be governed, in each Member State, by the laws of that State. Moreover, according to Article 17 of Regulation No 2201/2003, the wording of which is equally unambiguous, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction. Consequently, since the French courts have jurisdiction to hear the petition in the main proceedings pursuant to the criteria laid down by Article 3(1)(a) of Regulation No 2201/2003, the Swedish courts cannot base their jurisdiction to hear that petition on rules of their national law, pursuant to Article 7(1) of the regulation, but must, in accordance with Article 17 thereof, declare of their own motion that they have no jurisdiction, in favour of the French courts. Contrary to the submission of the Italian Government, that interpretation is not affected by Article 6 of Regulation No 2201/2003. Admittedly, Article 6, which provides that a respondent having his habitual residence in a Member State or being a national of a Member State can, in view of the exclusive nature of the jurisdiction set out in Articles 3 to 5 of Regulation No 2201/2003, be sued in the courts of another Member State only pursuant to those provisions, and consequently not pursuant to the rules of jurisdiction laid down by national law, does not prohibit a respondent who has neither his habitual residence in a Member State nor the nationality of a Member State from being sued before a court of a Member State pursuant to the rules of jurisdiction provided for by the national law of that State. In accordance with Article 7(1) of Regulation No 2201/2003, that may be the case where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 thereof, Article 7(2) of the regulation providing, in such a situation, that, if the petitioner is a national of a Member State and is habitually resident within the territory of another Member State, he may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State against such a respondent. However, it cannot be inferred from this that Article 6 of Regulation No 2201/2003 lays down a general rule that the jurisdiction of the courts of a Member State to hear questions relating to divorce in respect of a respondent who does not have his habitual residence in a Member State and is not a national of a Member State is to be determined, in all cases, under national law, including where a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation. Such an interpretation would in effect be tantamount to ignoring the clear wording of Articles 7(1) and 17 of Regulation No 2201/2003, the application of which does not depend, as is clear from paragraphs 18 to 20 of this judgment, on the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of Regulation No 2201/2003. That interpretation would, moreover, be contrary to the objective pursued by Regulation No 2201/2003. As is clear from Recitals 4 and 8 in the preamble to Regulation No 1347/2000, whose provisions on the jurisdiction to hear questions relating to divorce are essentially repeated in Regulation No 2201/2003, the latter regulation aims to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, Regulation No 2201/2003 applies also to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which, according to Recital 12 in the preamble to Regulation No 1347/2000, are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction. However, in the main proceedings, it is clear from the application of Article 3(1)(a) of Regulation No 2201/2003 that such a link exists with France and not with Sweden. The answer to the question referred must, therefore, be that Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation".

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Borras Report 1998: Article 7 Exclusive nature of jurisdiction under Articles 2 to 6 [Art. 6 BR 2003]

44. The essential characteristics of the jurisdiction rules provided for in this Convention have been examined in connection with Article 2 (see paragraph 29); that is to say, only the criteria listed in Articles 2 to 6 may be used, as alternatives and without any order of precedence. However, this Article is intended to emphasise the exclusive nature of the grounds contained in earlier Articles for determining the jurisdiction of a State’s authorities. It should be noted that the exclusive nature of the jurisdiction established refers only to matrimonial matters and questions of parental responsibility connected with such cases and does not therefore affect the rules of jurisdiction in matters of protection of minors where they are independent of the matrimonial proceedings. The exclusive nature should be understood without prejudice to the rules laid down in Articles 8(1) [now 7 (1)]and 38(2) [now 36 (2)]. (Borras (1998) C 221/42)

45. Where the grounds under Article 2 are either the spouse’s habitual residence or his or her nationality or ‘domicile’ (see statement provided for in Article 2(2), to which paragraph 33 refers), an application may be made to a court only in accordance with the rules laid down in the earlier Articles. That limitation on the rules of jurisdiction opens the way to the residual jurisdiction provided for in Article 8. Accordingly, if the United Kingdom adopts the criterion of domicile and Spain that of nationality, a spouse of British nationality domiciled in Spain and habitually resident in Brazil would not be subject to the rules laid down in Article 7 and could still be subject to an application made in accordance with Article 8. (Borras (1998) C 221/42-43)

Article 7 Brussels II Regulation (2003)

Article 7 Residual jurisdiction 1. Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State. 2. 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.

Following the provision in Article 7 (exclusive nature of jurisdiction under Articles 2 to 6), this Article deals with arrangements existing in the national legal system which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-member State and none of the jurisdictional criteria of the Regulation is met, jurisdiction should be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one whereby the applicant who is a 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. The prerequisite for applying that provision is that the respondent does not have his habitual residence in a Member State and is not a national of a Member State according to the criteria applicable to the case.

Such jurisdiction is termed 'residual' in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Regulation.

Taking into account the grounds of jurisdiction laid down in Articles 2 to 6 of the Regulation, paragraph 1 sets the boundary between grounds of an exclusive nature established by the Regulation and the principle of applying internal rules of jurisdiction, thus demonstrating the geographical limits of the Regulation. The requirements set out in Article 8(2) must be examined in the following sense:

(a) the applicant must be a national of a Member State habitually resident in another Member State. Hence the principle of assimilation between citizens of Member States for the purposes of paragraph 1;

(b) the respondent must meet two conditions: on the one hand he or she must be habitually resident outside the Member States; on the other hand, he or she must not be a national of a Member State. Both conditions are concurrent, otherwise the situation would be one requiring application of one of the grounds in Article 2. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999)

When Propsal 2006 has become effective, Article 7 will read as follows:

Article 7 Residual jurisdiction
Where none of the spouses is habitually resident in the territory of a Member State and do not have a common nationality of a Member State, or, in the case of the United Kingdom and Ireland do not have their “domicile” within the territory of one of the latter Member States, the courts of a Member State are competent by virtue of the fact that:
1. the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or
2. one of the spouses has the nationality of that Member State, or, in the case of United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States.

Article 7 currently refers to the national rules on international jurisdiction in situations where the spouses are not habitually resident in the territory of a Member State and do not have common nationality. However, the national rules are based on different criteria and do not always effectively ensure access to court for spouses although they may have a close connection with the Member State in question. This may lead to situations where no jurisdiction in the EU or in a third State has jurisdiction to deal with an application for divorce, legal separation or marriage annulment. It may also lead to practical difficulties to have the divorce recognised in a Member State since a decision issued in a third State is not recognised in a Member State pursuant to Council Regulation (EC) No 2201/2003, but only pursuant to national rules or applicable international treaties. Proposal 2006 introduces a uniform and exhaustive rule on residual jurisdiction which replaces the national rules on residual jurisdiction and which ensures access to court for spouses who live in a third States but retain strong links with a certain Member State of which they are nationals or in which they have resided for a certain period. The scope of this rule corresponds to the general rule of jurisdiction in Article 3 and applies to divorce, legal separation and marriage annulment[Explanatory Memorandum COM) (2006) final].

[see comment]

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ECJ 29 November 2007 C-68/07
Articles 6 and 7 of Council Regulation (EC) No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

"The national court is essentially asking whether Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State can base their jurisdiction to hear the petition on their national law, even though the courts of another Member State have jurisdiction under Article 3 of that regulation. In the main proceedings, it is not disputed that, in accordance with Article 3(1)(a) of Regulation No 2201/2003, the French courts have jurisdiction under the regulation to hear Mrs Sundelind Lopez’s petition under either the second indent of that provision, as the last place where the spouses were habitually resident, to the extent that she is still resident in France, or the fifth indent of that same provision, as the place where she is habitually resident, since she has resided in France for at least a year immediately before her divorce petition was introduced. According to the clear wording of Article 7(1) of Regulation No 2201/2003, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation that jurisdiction is to be governed, in each Member State, by the laws of that State. Moreover, according to Article 17 of Regulation No 2201/2003, the wording of which is equally unambiguous, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction. Consequently, since the French courts have jurisdiction to hear the petition in the main proceedings pursuant to the criteria laid down by Article 3(1)(a) of Regulation No 2201/2003, the Swedish courts cannot base their jurisdiction to hear that petition on rules of their national law, pursuant to Article 7(1) of the regulation, but must, in accordance with Article 17 thereof, declare of their own motion that they have no jurisdiction, in favour of the French courts. Contrary to the submission of the Italian Government, that interpretation is not affected by Article 6 of Regulation No 2201/2003. Admittedly, Article 6, which provides that a respondent having his habitual residence in a Member State or being a national of a Member State can, in view of the exclusive nature of the jurisdiction set out in Articles 3 to 5 of Regulation No 2201/2003, be sued in the courts of another Member State only pursuant to those provisions, and consequently not pursuant to the rules of jurisdiction laid down by national law, does not prohibit a respondent who has neither his habitual residence in a Member State nor the nationality of a Member State from being sued before a court of a Member State pursuant to the rules of jurisdiction provided for by the national law of that State. In accordance with Article 7(1) of Regulation No 2201/2003, that may be the case where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 thereof, Article 7(2) of the regulation providing, in such a situation, that, if the petitioner is a national of a Member State and is habitually resident within the territory of another Member State, he may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State against such a respondent. However, it cannot be inferred from this that Article 6 of Regulation No 2201/2003 lays down a general rule that the jurisdiction of the courts of a Member State to hear questions relating to divorce in respect of a respondent who does not have his habitual residence in a Member State and is not a national of a Member State is to be determined, in all cases, under national law, including where a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation. Such an interpretation would in effect be tantamount to ignoring the clear wording of Articles 7(1) and 17 of Regulation No 2201/2003, the application of which does not depend, as is clear from paragraphs 18 to 20 of this judgment, on the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of Regulation No 2201/2003. That interpretation would, moreover, be contrary to the objective pursued by Regulation No 2201/2003. As is clear from Recitals 4 and 8 in the preamble to Regulation No 1347/2000, whose provisions on the jurisdiction to hear questions relating to divorce are essentially repeated in Regulation No 2201/2003, the latter regulation aims to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, Regulation No 2201/2003 applies also to nationals of non-Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which, according to Recital 12 in the preamble to Regulation No 1347/2000, are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction. However, in the main proceedings, it is clear from the application of Article 3(1)(a) of Regulation No 2201/2003 that such a link exists with France and not with Sweden. The answer to the question referred must, therefore, be that Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation".

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Borras Report 1998: Article 8 Residual jurisdiction [Art. 7 BR 2003]

46. This Article corresponds to the rules of exorbitant jurisdiction referred to in Articles 3 and 4 of the 1968 Brussels Convention. There are, however, differences between the two texts. The nature of the jurisdictions laid down in the aforementioned Articles renders unnecessary a provision such as Article 3 of the 1968 Brussels Convention. (Borras (1998) C 221/43)

47. Following the provision in Article 7 (exclusive nature of jurisdiction under Articles 2 to 6), this Article deals with arrangements existing in the national legal system which can be used only in the context of this Article. For some States, when one of the spouses resides in a non-Member State and none of the jurisdictional criteria of the Convention is met, jurisdiction should be determined in accordance with the law applicable in the Member State in question. To deal with that situation, the solution adopted is an assimilatory one whereby the applicant who is a 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. The prerequisite for applying that provision is that the respondent does not have his habitual residence in a Member State and does not have his ‘domicile’ within the territory of a Member State and is not a national of a Member State according to the criteria applicable to the case in accordance with the statement provided for in Article 2(2) (see above).

Such jurisdiction is termed ‘residual’ in view of its nature and the place it occupies in relation to the grounds of jurisdiction established by the Convention. That description was regarded as preferable to ‘extra-Community disputes’. In view of the function that that Article performs, like that of Article 4 of the Brussels Convention, contrary to the practice followed in Article 3 of the 1968 Brussels Convention, a list of these types of jurisdiction has not been included in this Article. Some States, like the Netherlands, have no jurisdiction in their internal legal system which can be defined as ‘residual’ for the purposes of Article 2 of the Convention.

Such jurisdiction does, however, exist in other national systems. Some examples are set out below.

In Germany, the rules of jurisdiction provided for in sections (1), (3) and (4) of Article 606a of the ‘Zivilprozessordnung’ could be described as residual; they provide that German courts have international jurisdiction when (1) one spouse is German or was German when the marriage took place; (2) one spouse is stateless and is habitually resident in Germany; or (3) one spouse is habitually resident in Germany, except where any judgment reached in their case could not be recognised in any of the States to which either spouse belonged.

In Finland, under Section 8 of the ‘Laki eräistä kansainvälisluontoisista perheoikeudellisista suhteista’/‘Lag angående vissa familjerättsliga förhållanden av internationell natur’ (International Family Relations Act) revised in 1987, Finnish courts will hear matrimonial cases even where neither spouse is habitually resident in Finland if the courts of the State of habitual residence of either of the spouses do not have jurisdiction or if application to the courts of the State of habitual residence would cause unreasonable difficulties and, furthermore, in the circumstances it would appear to be appropriate to assume jurisdiction (forum conveniens).

In Spain the only example would be one of the rules contained in Article 22(3) of the ‘Ley Orgánica del Poder Judicial’ (Law on the judicial system) of 1 July 1985 which allows the application to be made in Spain when the applicant is Spanish and is resident in Spain but does not meet any of the requirements in Article 2(1) of this Convention such as the express or tacit submission referred to in Article 22(2). Apart from that, all the other grounds for international jurisdiction in matrimonial matters which exist in Spanish law are contained in the Convention, these being that both spouses are habitually resident in Spain at the time of the application or that both spouses are of Spanish nationality, whatever their place of residence, provided that the application is made either jointly or with the agreement of the other spouse. (Borras (1998) C 221/43-44)

In France, Article 14 of the Civil Code would give French courts jurisdiction if the petitioner had French nationality.

In Ireland the courts would have jurisdiction in matters of annulment (Section 39 of the Family Law Act, 1995) divorce (Section 39 of the Family Law (Divorce) Act, 1996), and legal separation (Section 31 of the Judicial Separation and Family Law Reform Act, 1989), when either of the spouses is domiciled, for the purposes of Article 2(3), in the State on the date of institution of proceedings.

In Italy, the rules laid down in Articles 3, 4, 32 and 37 of Law 218 of 31 May 1995 on the reform of the Italian system of private international law are of this nature.

In the United Kingdom, a distinction has to be made between divorce, separation and annulment proceedings and custody orders relating to such proceedings. With regard to divorce, annulment and legal separation proceedings, this Article may cover grounds of jurisdiction based on the ‘domicile’ of either party in the United Kingdom at the time the application is made or on habitual residence for a year immediately preceding that date. In the case of divorce and separation proceedings, the Sheriff Courts in Scotland have jurisdiction if one party is either resident in the place for 40 days immediately prior to the submission of the application or has resided there for a period of at least 40 days ending not more than 40 days before that date and has no known residence in Scotland on that date. For custody orders contained in divorce, annulment and legal separation judgments, United Kingdom judicial bodies, including the Sheriff Courts in Scotland, will have jurisdiction, but if a court outwith the United Kingdom is conducting relevant proceedings, United Kingdom courts have a wide discretion to decline jurisdiction, provided that those proceedings continue and, in addition, that the proceedings continue before a judicial body that has jurisdiction under its national legislation. In the case of Sweden, the jurisdictional rules of Swedish courts for divorce matters are to be found in the ‘lag om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap’ (Act on certain international legal relations concerning marriage and guardianship) 1904, as amended in 1973. As regards Article 7 of the Convention, Swedish courts have jurisdiction in matters of divorce if both spouses are Swedish citizens, if the petitioner is Swedish and is habitually resident in Sweden or has been so at any time since reaching the age of 18 or if, in other cases, the government gives its consent to the cases being heard in Sweden. The government can give its consent only if one of the spouses is Swedish or the petitioner cannot bring the case before the courts of the State of which he is a national. (Borras (1998) C 221/44)

48. Taking into account the grounds of jurisdiction laid down in Articles 2 to 6 of the Convention, paragraph 1 sets the boundary between grounds of an exclusive nature established by the Convention and the principle of applying internal rules of jurisdiction, thus demonstrating the geographical limits of the Convention. The requirements set out in Article 8(2) must be examined in the following sense:

(a) the applicant must be a national of a Member State habitually resident in another Member State. Hence the principle of assimilation between citizens of Member States for the purposes of paragraph 1;

(b) the respondent must meet two conditions: on the one hand he or she must be habitually resident outside the Member States; on the other hand, he or she must not be a national of a Member State or have his or her ‘domicile’ in a Member State (declaration provided for in Article 2(2)). Both conditions are concurrent, otherwise the situation would be one requiring application of one of the grounds in Article 2. (Borras (1998) C 221/44)

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