Case law Brussels II Regulation (2201/2003)

Article 3 of the Brussels II Regulation

ECJ 2 April 2009 (Case C-523/07, ECR 2009 Page I-02805)

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 the Brussels II Regulation (No 2201/2003) the court of another Member State having jurisdiction (see para. 71, operative part 4).

ECJ 16 July 2009 ‘Hadadi v Mesko’ (Case C-168/08, ECR 2009 Page I-06871)

1. Where the court of the Member State addressed must verify, pursuant to Article 64(4) of the Brussels II 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 the Brussels II Regulation 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.

ECJ 29 November 2007 ‘Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo’ (Case C-68/07)

Articles 6 and 7 of the Brussels II 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 the Brussels II Regulation.

According to the clear wording of Article 7(1) of the Brussels II Regulation, 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 the Brussels Regulation, 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.

That interpretation is not affected by Article 6 of the Brussels II Regulation, since the application of Articles 7(1) and 17 of that Regulation depends not upon 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 the Regulation, the objective of which is 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, the Brussels II Regulation 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 are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction (see paras 18-19, 21, 25-26, 28, operative part).