BRUSSELS IIa REGULATION OVERVIEW: SCOPE AND STRUCTURE

BRUSSELS IIa REGULATION OVERVIEW: SCOPE AND STRUCTURE
Prof. Dr. Mirela Župan (University of Osijek, Croatia) Prof. Dr. Carola Ricci (University of Pavia, Italy) Matrimonial and parental responsibility matters under the Brussels IIa Regulation Matrimonial and parental responsibility matters under the Brussels IIa Regulation

INDEX Scope and structure
I. Adjudicating cross-border family matters in EU - setting the scene II. Architecture of the Brussels IIa Regulation III. Matrimonial matters IV. Parental responsibility matters V. Consequences of (non)application of the Regulation

ADJUDICATING CROSS-BORDER FAMILY MATTERS IN THE EU
PART I ADJUDICATING CROSS-BORDER FAMILY MATTERS IN THE EU

Interplay of universal and regional level of law harmonization
Hague conference on private international law United Nations Council of Europe European Union HCCH COE EU UN

EUROPEAN UNION as unification actor
encouraging free movement brings the issue of cross border elements to family intensified human mobility leads to internationalization of family life / family law → inadequacy of national legal systems to regulate newly formed social situations justifies EU action!

1997 Treaty of Amsterdam gains internal competences (Art. 65; Art 81 Lisbon Treaty) 1999 Tampere programme places mutual recognition of decisions at focus 2005 – 2010 Hague programme mutual recognition agenda remained a priority called for the development of EU action in family law: the Commission is invited to submit proposals on maintenance, matrimonial property and divorce Stockholm Programme mutual recognition transfers to abolished exequatur in family matters innovation: promoting alternative dispute resolution in cross border family cases

EU Regulations lean on based on harmonized direct jurisdiction rules, proper service, elimination of procedural irregularities, avoidance of parallel procedures and passing opposed decisions, exequatur repeal (several approaches), applicable law – at low extent so far. European Judicial Network (EJN) Central Authorities (CA) Hague international judicial network (HIJN) General functions of CA Central authorities promote exchanges of information on national legislation and procedures, cooperateing with each other in order to solve problems arising from the application of relevant regulations, facilitate communication between the courts. Council Decision 2001/470/EC of 28 May 2001 established a European Judicial Network (EJN) in civil and commercial matters, Decision No 568/2009/EC cross border communication and other judicial collaboration entails: smoother conduct of cases with cross-border elements; facilitates judicial cooperation among Member States judges (aid with the service of documents; taking of evidence); aims at ensuring the proper practical application of acquis comunnitaire along with international agreements and conventions among Member States aims at establishment and maintenance of an information system for the public on judicial cooperation in civil and commercial matters in the EU, acquis, international instruments and the domestic law of the Member States, especially regarding the access to justice. HIJN completes the Malta declaration emphasizes the added value of direct judicial communications in international child protection cases

Legal sources Brussels IIa Regulation 2201/2003
Sucession Regulation 650/2012 Brussels IIa Regulation 2201/2003 Maintenance Regulation 4/2009 In narrow sense EU international family law relates to regulations designed particularly for this legal area within EU institutions

.... Legal sources 1980 HC on Abduction Brussels Iia Regulation
Rome III Regulation Maintenance Regulation Hague maintenance Convention + Protocol 2007 Succession Regulation 1996 HC on Protection of Children In wider sense in encompases: - instruments delivered by international organizations – HCCH most important - PIL rules of member states - „soft law” Commission on European Family Law

.... Legal sources 1980 HC on Abduction Brussels IIa Regulation Rome III Regulation Maintenance rRgulation Hague maintenance Convention + Protocol 2007 Succession Regulation 1996 HC on Protection of Children Charter of Fundamental Rights CJEU ECHR + UN CRC ECtHR In adjudicating these matters special attention has to be given to: -Fundamental rights -jurisprudence of supranational courts

Brussels IIa Regulation – delimitation to other instruments
with respect to national law, matters outside it’s scope with respect to other Regulations Maintenance CJEU C‑184/14, ECLI:EU:C:2015:479 Inheritance and representation CJEU C‑215/15, ECLI:EU:C:2015:710 Not applicable to: Fault of the parties to divorce Property consequences Maintenance obligations or other ancilliary measures Filiation Parenthood Adoption Name of the child; Emancipation; Maintenance obligations; Trusts or succession; Measures taken as a result of criminal offences committed by children.

ARCHITECTURE OF THE BRUSSELS IIa REGULATION
PART II ARCHITECTURE OF THE BRUSSELS IIa REGULATION

Preamble – 33 Recitals Chapter I: Scope and definitions Chapter II: Jurisdiction Chapter III: Recognition and Enforcement Chapter IV: Co-operation between Central Authorities in Matters of Parental Responsibility Chapter V: Relation with other Instruments Chapters VI, VII:Transitional and Final Provisions

Methods of unification
JURISDICTION RECOGNITION / ENFORCEMENT CENTRAL AUTHORITY SYSTEM APPLICABLE LAW Matrimonial / parental responsibility matters: - Brussels IIa (2201/2003) Divorce matters: -Rome III, 1259/2010 -national PIL Parental responsibility: -1996 HC on Protection of Children -1980 HC on Child Abduction - national PIL Maintenance obligations regulation (4/2009) + Hague Protocol (2007) Succession regulation (650/2012) Marriage/civil partnership property regimes regulation (2016 draft)

Scope of application TEMPORAL GEOGRAPHICAL MATERIAL as of 1.3.2005
for Croatia as of (Art 64/1) all MS of the EU, except Denmark divorce legal separation marriage annulment parental responsibility

BIIa Regulation – types of decisions/
procedures covered not confined to court judgments (art. 2/1, 2/4) any decision pronounced by an authority having jurisdiction in matters falling under the Regulation (e.g. social authorities) The legal term “court” covers also civil notaries administrative authorities as far as they are acting in family matters covered by this Regulation applies to “authentic instruments”/ “agreements between parties” Not relevant: Type of proceeding (judicial litigious, judicial non-litigious, notarial, administrative, etc.) Type of decision (judgment, decree, order etc.) This Regulation shall apply, whatever the nature of the court or tribunal, …..” “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;” For example: matrimonial matters: competence of civil law notaries for divorce: Romania, Latvia competence of administrative authorities for divorce: vital statistics office in Estonia 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)

BIIa Regulation - interpretation
Autonomous or „Europautonomous” interpretation National courts must refrain from referring to national concepts/ national case law Systematic and purposive interpretation Each individual article is to be interpreted in the context of a Regulation as a whole; in accordance to objectives (Recitals) Report of Convention drawn by Alegría Borrás Rodríguez can be used as a mean of interpretation Practice Guide, can be used but has no legal force

… BIIa Regulation - interpretation
Final and exclusive interpretation authority is CJEU Reference procedure concerns only EU law; no questions of national law, even if Regulation refers to national law! only relates to pending proceedings Any court of MS is entitled but courts of last instance (no ordinary judicial remedy can be given) are obliged to refer UPP -urgent procedure art. 104b Rules of Procedure of the Court of Justice Referal must be of relevance for dispute to merits Obligation of the refering court to explain why the interpretation is decisive for final judgement Formal requirement Concrete question, accompanied with survey of facts and legal background of the case UPP -urgent procedure art. 104b Rules of Procedure of the Court of Justice A reference for a preliminary ruling which raises one or more questions in the areas covered by Title V of Part Three of the Treaty on the Functioning of the European Union may, at the request of the national court or tribunal or, exceptionally, of the Court's own motion, be dealt with under an urgent procedure which derogates from the provisions of these Rules. The national court or tribunal shall set out, in its request, the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and shall, in so far as possible, indicate the answer it proposes to the questions referred. - CJEU can on its own motion decide to proceed a referal in urgent procedure

PART III MATRIMONIAL MATTERS

«Matrimonial Matters»
BIIa Regulation applies only to the “dissolution of matrimonial ties” and its legal effects: entirely (divorce/annulment) partially (legal separation) BIIa Regulation does NOT deal with religious effects (exception for relations between the Holy See and Portugal, Italy, Spain and Malta…) issues such as the grounds for divorce (i.e., charges), property consequences of the marriage, inheritance or any other ancillary measures (i.e., name, family house…) Procedure on the matrimonial ties must be independently decided from the one on parental responsibility (specific choice made in BIIa, as opposed to the preceding BII Regulation No 1347/01)

Grounds of jurisdiction in matrimonial matters
To determine the EU country where the courts have the right to rule on a case: there is no general rule on jurisdiction in matrimonial matters pursuant to Article 3 the Regulation instead sets out seven alternative grounds for jurisdiction equally valid based on: on habitual residence of one or both the spouses (lett. a), or on the both spouses’ common nationality (lett. b) Reference to same grounds is made under Articles 4 and 5

Exclusive nature of the grounds of jurisdiction (Art. 6-7)
All the seven alternative grounds of jurisdiction are defined as “exclusive” in the sense that whenever the court of a MS has jurisdiction under Articles 3-5, national rules on jurisdiction cannot be applied At the moment of recognition they cannot be reviewed by the requested judge (Art. 24) They cannot be derogated by the parties The MS court that is different from those indicated in Articles 3-5 must declare of its own motion (ex officio) the lack of jurisdiction even in case the defendant does not raise any exception (Art. 17)

Article 3: grounds of jurisdiction
Neither habitual residence nor citizenship are defined within BIIa citizenship: Under international law, it is for each Member State, having due regard to Community law (i.e. fundamental freedoms), to lay down the conditions for the acquisition and loss of nationality (ECJ, Micheletti, case C-369/90, para. 10) The court seized applies its own law to determine the alleged status of nationals of the parties Nationality determines the jurisdiction only when it is common to both spouses BUT what if both spouses have a double common nationality? Michelletti - Mr Micheletti has dual Argentine and Italian nationality, having acquired the latter since Italian law provides that the child of an Italian mother or father is an Italian citizen. It is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty The provisions of Community law on freedom of establishment preclude a Member State from denying a national of another Member State who possesses at the same time the nationality of a non-member country entitlement to that freedom on the ground that the law of the host State deems him to be a national of the non-member country BUT CONSIDER THAT THINGS CHANGED WITH Garcia Avello and Grunkin Paul

Grounds of jurisdiction: Article 3.1 b
(double) common citizenship CJ, Hadadi, case C-168/08, 16 July 2009 Spouses having double common citizenship (France and Hungarian) and common habitual residence in France (for 22 years!) Court first seized (by the husband): Hungary Court second seized (by the wife): France (which is alleged as being ‘the most effective nationality’) The Court established that: There is no hierarchy established among the different grounds of jurisdiction under Article 3: the parties can freely choose potentially among several courts having jurisdiction Even if the plaintiff is linked to the court seized only on the basis of the sole common nationality of the couple, that is enough to determine the jurisdiction of such a judge (no other links are required with the forum)

Grounds of jurisdiction: Article 3(1)a
Habitual Residence «Europautonomous» interpretation is required CJEU has elaborated settled case-law on the concept BUT for other areas of law – so it is not plainly accepted that such case-law can be applied in matrimonial matters A clear definition can anyway be found in the decision Pedro Magdalena Fernandez ECJ, case C-452/93 (para. 22) “the place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. However, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account” The analysis must be preeminently done to the objective circumstances but the subjective element can be of a certain importance as well (S.III)

EITHER common habitual residence of the couple the habitual residence is not required to be in the same place it is sufficient the spouses live within the same State even if in different places OR last common habitual residence insofar as one of them still resides there OR habitual residence of respondent in application of the common principle «actor sequitur forum rei» OR habitual residence of either of the spouses in the event of a joint application, if lex fori admit it (the only case where the spouses can mutually choose the forum) In Italy ok for divorce and separation NOT for annulment

OR habitual residence of the applicant Only under certain circumstance, in order to avoid “forum shopping”: insofar as the applicant still resides in the last common habitual residence (in order to facilitate the one who remained, see supra) or in case the applicant resided there for at least a year immediately before the application was made in case the applicant 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 RATIONALE – the one who had not changed the residence in 6 or 12 months will have time enough to start an action in a State that the other spouse anyway knows…

Ancillary grounds of jurisdiction
Art Counterclaim The court in which proceedings are pending on the basis of Article 3 shall also have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of this Regulation Art. 5 - Conversion of legal separation into divorce Without prejudice to Article 3, 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 This is another ground adding to previous ones

Residual space for national rules (Art. 7)
In case none of all the alternative grounds of jurisdiction is applicable, in the sense that there is no court of a MS having jurisdiction under Articles 3-5, then national rules on jurisdiction can be applied any national of a MS (A) who is habitually resident within the territory of another MS (B) may avail himself of the rules of jurisdiction applicable MS (B) like the nationals of MS (B) against a respondent who is not habitually resident and is not a national of another MS (or, in the case of the UK and Ireland, does not have his “domicile” within these two MS) The relation of this provision with Article 6 and 3-5 was not clear thanks to the lack of co-ordination with the requirement of double citizenship set forth in art. 3(1)b to determine jurisdiction and the sole citizenship referred to in article 6 to indicate the exclusive nature of the Regulation… The Court was expressly asked to intervene over the matter…

Residual ground of jurisdiction: relations among art. 6,7, 3-5
CJEU, Sundelind Lopez, case C- 68/07, Applicant: Swedish wife, habitually resident in France Respondent: Cuban husband, actual habitual residence in Cuba after breakdown but last common habitual residence in France Court seized: Swedish on the basis of Swedish legislation not on BIIa (ex art. 6 alleging that since the respondent was a non EU national the Regulation could not be applied) Swedish judge dismissed the case declaring lack of jurisdiction (in its view art. 6 should be interpreted as fixing a personal limitation to the application of BIIa) Swedish Procedure Law provides for the existence of Swedish jurisdiction in case the applicant: Is a Swedish national Is resident in Sweden Has residence in Sweden after the age of 18 -

Residual ground of jurisdiction: relations among art. 6,7, 3-5
The Court in Sundelind Lopez case points out that, pursuant to Article 7, the application of BIIa does not depend on any characteristic of the respondent, but is confirmed in case there is a court of a MS having jurisdiction under Articles 3-5 Thus BIIa applies also when the action is brought against a respondent who is not national nor resident in the EU whenever a MS court has jurisdiction pursuant to Articles 3-5 In the present case the court having jurisdiction is… …the French one! Swedish Procedure Law provides for the existence of Swedish jurisdiction in case the applicant: Is a Swedish national Is resident in Sweden Has residence in Sweden after the age of 18 -

Common rules on jurisdiction on matrimonial matters and parental responsibility
WHEN A COURT IS DEEMED TO BE SEISED (art. 16) EXAMINATION AS TO JURISDICTION (art. 17) EXAMINATION AS TO ADMISSIBILITY (art. 18) LIS PENDENS (art. 19) PROVISIONAL INCLUDING PROTECTIVE MEASURES (art. 20) Once a court has been seised pursuant to Article 3 of the Regulation and declared itself competent, courts of other Member States are no longer competent and must dismiss any subsequent application. The aim of the “lis pendens” rule is to ensure legal certainty, and avoid parallel actions and the possibility of irreconcilable judgments.

LIS PENDENS or what happens if matrimonial proceedings are brought in two Member States?
Article 19 (1) covers two situations: a. Proceedings relating to the same subject-matter and cause of action are brought before courts of different MS and b. Proceedings which do not relate to the same cause of action, but which are actions connected to the same matrimonial ties but are brought before courts of different MS (ex: there’s lis pendes if divorce is asked in MS A and separation in MS B) Once a court has been seized pursuant to Art. 3 and declared itself competent, courts of other MS must dismiss any subsequent application When the jurisdiction of the first court seized is established, 2nd court shall decline jurisdiction in favour of the first Mirela if you want I can cut it, since You are presenting it on the following part… . The aim of the “lis pendens” rule is to ensure legal certainty, and avoid parallel actions and the possibility of irreconcilable judgments.

A judge whose court is seised with an application for divorce makes the following analysis
Do I have jurisdiction pursuant to Arts 3-5 BIIa? YES: 2. Has another court been seized already with proceedings for divorce, separation or annulment between the same parties (Article 19(1))? YES: of my own motion I shall stay the proceedings before me until the jurisdiction of the court first seized is established - 3. Is the jurisdiction of the court first seized established (Article 19(3))? Yes: I decline jurisdiction No: I can continue to hear the case NO Has a court of another MS jurisdiction according to BIIa (Art. 17)? YES: of my own motion I shall declare that I do not have jurisdiction (Art. 17) NO: 3. I can still have jurisdiction according to my national law (“residual jurisdiction”) Swedish Procedure Law provides for the existence of Swedish jurisdiction in case the applicant: Is a Swedish national Is resident in Sweden Has residence in Sweden after the age of 18 -

PARENTAL RESPONSIBILITY
PART IV PARENTAL RESPONSIBILITY

Guiding jurisdictional principles
Best interest of a child Principle of proximity BASIC RULE: habitual residence of the child: Art. 8. EXCEPTIONS : previous habitual residence (continuation/3mnts): Art. 9. Child abduction: Art. 10,11, Prorogation of jurisdiction: Art. 12 OTHER RULES: Presence of a child: Art. 13 Residual jurisdiction: Art. 14 Transfer of jurisdiction: Art. 15

Provisional and protective measures: Art. 21
OTHER RULES Procedural rules on seizing of a court, examination of jurisdiction/admissibility: Art, 16, 17, 18 No parallel proceedings within EU: Art. 19 Provisional and protective measures: Art. 21 Not part of jurisdiction section Can be issues according to national law No fee circulation for these orders

CONSEQUENCES OF (NON)APPLICATION OF THE REGULATION
PART V CONSEQUENCES OF (NON)APPLICATION OF THE REGULATION

Overall ratio of FREE CIRCULATION OF JUDGEMENTS
embedded on MUTUAL TRUST BIIa directly applicable in MS prevails over national law requires autonomous interpretation guided by CJEU Consequences of (non)application No possibility to refuse recognition if a judgement is based on non-existent/fault ground of jurisdiction/contains untruee statements ECLI:EU:C:2015:763, C 455/15 PPU – lis pendens ECLI:EU:C:2015:654, C 489/14 – penalty by the CJEU.

RELEVANT INFORMATION SOURCES
ANNEX I RELEVANT INFORMATION SOURCES

Hague Conference on Private International Law
European commission Eur lex CJEU Hague Conference on Private International Law brussels4family.eu

LIST OF LEGAL SOURCES – FULL TITLE
ANNEX II LIST OF LEGAL SOURCES – FULL TITLE

Regulations directly applicable in cross-border family law
Council Regulation (EC) no. 2201/2003 of 27 November 2003 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility which revokes the Regulation (EC) no. 1347/2000 Council Regulation (EC) no. 4/2009 of 18 December on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations Council Regulation (EU) no. 1259/2010 of 29 December implementing enhanced cooperation in the area of the law applicable to divorce and legal separation

Regulations directly applicable in cross-border family law
Council Regulation (EC) no. 1206/2001 of 28 May 2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters Regulation (EC) no. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters Regulation (EEC, Euratom) no. 1182/71 of the Council of 3 June 1971 Determining the Rules Applicable to Periods, Dates and Time Limits Regulation (EC) no. 805/2004 of the European Parliament and of the Council of 21 April 2004 Creating a European Enforcement Order for Uncontested Claims Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters Council Directive 200/52/EC of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

Conventions applicable in cross-border family law
Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“1996 HC on Protection of Children”) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 HC on Child Abduction”) Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance Hague Protocol of the Law Applicable to Maintenance Obligations.

BRUSSELS IIa REGULATION OVERVIEW: SCOPE AND STRUCTURE

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