certain questions of the brussels-iia regulation (2201/2003/EC) Jurisdiction system in divorce matters - Jurisdiction and applicable law in the proceedings concerning the child property Bucharest, 23 May 2014 Dr. Tibor Szőcs Hungarian National Chamber of Civil Law Notaries Office of Legal Affairs H-1026 Budapest Pasaréti út 16.  H-1535 Budapest Pf. 836 +36 1 489 4880 tibor.szocs@kamara.mokk.hu

The brussels-iiA regulation among the community instruments (in the field of judicial cooperation in civil matters ) jurisdiction recognition and enforcement of judgments conflict of laws civil and commercial matters: Brussels Convention 1968 Brussels I (44/2001(EC) Brussels Ia (1215/2012/EU) marriage and parental responsibility matters: Brussels II (1347/2000/EC) Brussels IIa (2201/2003/EC) contractual obligations: Rome Convention 1980 Rome I (593/2008/EC) non-contractual obligations: Rome II (864/2007/EC) divorce matters: Rome III (1259/2010/EU) several matters: (regulating both procedure questions (jurisdictions, recognition & enforcement) and conflict of laws) Insolvency proceedings regulation (1346/2000/EC) Maintenance obligations regulation (4/2009/EU) Succession regulation (650/2012/EU) Marriage property regimes regulation (draft) „Brussels-type“ regulations „Rome-type“ regulations Complex regulations

Recognition and enforcement of decisions Common rules for certain cross border issues of matrimonial and parental responsibility matters Jurisdiction Law applicable Recognition and enforcement of decisions matrimonial matters Brussels-IIa Art. 3-7 Rome-III Art. 5-16 divorce and legal separation matters only! (NOT applicable for questions relating marriage annulment, existence of marriage) Art. 21, 22, 24-27, 37-39 matters of parental responsibility Art. 8-15 Hague Convention of 1996 Chapter III (Art. 15-22) Art. 21, 23, 24-45

Meaning of “court” „This Regulation shall apply, whatever the nature of the court or tribunal, …..” (Art. 1.) “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; ... 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;” (Art. 2.) The legal term „court” covers also - civil notaries - administrative authorities as far as they are acting in family matters covered by this Regulation. Not relevant: Type of proceeding (judicial litigious, judicial non-litigious, notarial, administrative, etc.) Type of decision (judgment, decree, order etc.) Examples: a) matrimonial matters: - competence of civil law notaries for divorce: Romania, Latvia - competence of administrative authorities for divorce: vital statistics office in Estonia b) parental responsibility matters: competence of guardianship authorities for certain decisions concerning legal representation of the child, administration of the child’s property: Hungary (e.g. formal approval of certain legal declarations on behalf of the child by the guardianship authority)

Jurisdiction in matrimonial matters Meaning of the term „matrimonial matters” - divorce - legal separation - marriage annulment Jurisdiction grounds: Art. 3. (1) a) - habitual residence of the spouses; alternative jurisdictional criteria No hierarchy! - last habitual residence of the spouses, insofar as one of them still resides there; - habitual residence of the respondent - the habitual residence of any of the spouses in the event of a joint application; - habitual residence of the applicant, if he/she resided there for at least a year immediately before the application was made; - habitual residence of the applicant, if he/she resided there for at least six months immediately before the application was made and he/she is a national of the Member State in question (in the case of UK/IE has his/her ‘domicile' there); Art. 3. (1) b) - nationality of both spouses (in the case of UK/IE the ‘domicile' of both spouses).

Jurisdiction based on nationality of both spouses (Art. 3. (1) b)) Question concerning dual nationals: both nationalities are relevant no examination, which one is the „effective nationality” The courts must „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.” ECJ Case Nr. C‑168/08 (Hadadi-case) Conflicts of jurisdictions „Positive” conflict: if more than one MS have jurisdiction according to Art. 3. (alternative jurisdiction criteria, without hierarchy) Coordination: lis pendens rule (Art. 19) Priority of the proceeding of the court first seised „Negative” conflict: if no MS has jurisdiction The jurisdiction shall be determined, in each Member State, by the national laws (lex fori) – residual jurisdiction (Art. 7) Priority of the jurisdiction system of the Regulation: National jurisdiction rules may be applied only if no other MS has jurisdiction according to Art. 3 of the Regulation. „….in divorce proceedings,…. 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.” ECJ Case Nr. C‑68/07. (Sundelind-case)

Scope of the Regulation in the field of parental responsibility matters Art. 1. This Regulation shall apply, … relating to: … (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. Definition „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” (Art. 2. (7)) Legal matters Covered by the Regulation Not covered by the Regulation in particular: (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property. (Art. 1 (2)) (a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) measures taken as a result of criminal offences committed by children. (Art. 1 (3))

Types of the proceedings concerning parental responsibility covered by Brussels-IIa All kind of legal proceedings (judicial litigious, judicial non-litigious, notarial, administrative, etc.) proceedings Regulating the responsibility as a whole over a child e.g. - which person shall be vested the parental responsibility with; termination of the parental responsibility of one of the parents. - appointment of a guardian for the child Regulating certain singular aspects of the responsibility only - to regulate the access rights; - to solve the dispute among the parents in particular questions; - to approve a legal declaration on behalf of the child by a court/authority

Jurisdiction in parental responsibility matters General jurisdiction rule (Art. 8) determined by the habitual residence of the child Special jurisdiction rules (Art. 9-13) Uniform jurisdiction rules of the Regulation - Jurisdiction in case of the lawful moving of the child to another MS (Art. 9) - Jurisdiction in case of child abduction (Art. 10-11) - Prorogation of the jurisdiction (Art. 12) (in case of a matrimonial proceeding only) - Jurisdiction based on the child's (simple) presence (Art. 13) (Where a child's habitual residence cannot be established; refugee children) Residual jurisdiction (Art. 14.) if no MS has jurisdiction according to Art. 8-13 The jurisdiction shall be determined, in each Member State, by the national laws (lex fori) Jurisdiction according to the national laws of the MS Examination of the habitual residence: case-law of ECJ C-523/07 („A”-case) The habitual residence of the child ….. „must be must be established on the basis of all the circumstances specific to each individual case”. „In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration.” C-497/10 (case „Mercredi / Chaffe”) „…such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment.” In case of an infant child ….. „with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections of the mother” must be taken into consideration.

A special aspect of the parental responsibility: approval of the legal declaration of the legal representative on behalf of the child by a judicial/administrative authority cross-border issues law applicable jurisdiction Which law governs the necessity and the conditions of the approval ? In which MS shall the applicant (the legal representative of the child) initiate a judicial/administrative proceeding for approval ? Hague Convention 1996: „The exercise of parental responsibility is governed by the law of the State of the child’s habitual residence.” (Article 17) Brussels-IIa „The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.” (Art. 8) examples: - legal transactions concerning immovable property of the child - succession matters: declaration on refusal of the inheritance; agreement on sharing the succession property recognition of the claim of a creditor

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