The Brussels II Regulation 2003

CHAPTER III RECOGNITION AND ENFORCEMENT

Chapter III of the Brussels II Regulation deals with the recognition and enfrocement of judgements of the courts of a Member State in one of the other Member States. It applies to judgments which have established a divorce, legal separation or marriage annulment as well as to judgments on matters of parental responsibility, including those concerning rights of access and matters of child abduction.

Where it concerns recognition, the general principle of the Brussels II Regulation is that judgments given in one Member State are automatically recognized by the authorities and courts of another Member State, without the need to start a legal procedure there in order to get this result. The authorities of another Member State can only refuse the recognition of such judgments on specific grounds, mentioned in Article 22 and Article 23 BR II 2003. If a national or local authority refuses the recognition of a judgment of the court of the Member State of origin, then any interested party has the right to ask the court of the Member State where recognition is sought, to officially recognize this judgment. Such a decision is binding to all authorities of that Member State. On the other hand, if the national or local authorities of another Member State have recognized the judgment, any interested party can also ask the court of the Member State whose authorities have recognized the judgment, to undo this recognition and to declare that the judgment of the court of the Member State of origin is not to be recognized at all.

Where it concerns enforcement, the Brussels II Regulation has adopted a different approach. In this respect a distinction is made between judgments breaking the marriage link through a divorce, legal separation or marriage annulment and judgments on matters of parental responsibility.

A judgment breaking the marriage link is in itself not enforceable. It merely orders and establishes that the marriage has ended (or changed) as a result of a divorce or marriage annulment (or, respectively, a legal separation). It has no other immediate result. The courts and authorities of other Member States have to recognize this result as such. On the basis of the acknowledged divorce, legal separation or marriage annulment, other legal effects may come to the surface, like the need to dissolve and apportion the marital community of property or to grant one of the (former) spouses a right, to be exercised against the other (former) spouse, on maintenance (alimony). If parties themselves cannot come to terms on these matters, the court might have to give a decision on it as well to settle the dispute. Such legal proceedings, however, do not fall within the scope of the Brussels II Regulation. It concerns separate proceedings governed by national rules of private international law of the Member State whose court is seised to give a judgment on the apportionment of the marital community of property or on the obligation to pay maintenance. That court, therefore, has to recognize that the marriage link is broken, but still has to examine whether it is competent to hear other legal claims indirectly resulting from the end of the marriage. If it thinks that it has jurisdiction over such matters, it shall hear the case and give a judgment in line with the law governing the marital community of property or the obligation to pay maintenance.

For judgments on matters of parental responsibility a recognition by the other Member States may not be sufficient. It's conceivable that such judgments have to be enforced effectively in another Member State. The Brussels II Regulation provides rules for the enforcement of this kind of judgements. Here, enforcement can be achieved through a so-called ‘exequatur procedure’: the party who seeks enforcement of the judgment may request the court of another Member State, where enforcement is sought, to declare the foreign judgement enforceable in that Member State. The court of the Member State where enforcement is sought, facing such request, may only review if basic formalities and conditions are met, but not if the judgment of the court of the Member State of origin is to its substance or outcome correct. There are only a few grounds that can lead to a denial of a request for enforcement.

As far as it concerns the enforcement of judgments on access rights and the return of an abducted child, there is, besides the exequatur procedure, another possibility to achieve the wanted result of enforceability of the judgment in the other Member State. This procedure, however, can only be used if the court of the Member State of origin has added a specific certificate to its judgment, which makes it directly enforceable in every other Member State.

One has to be aware that the recognition and enforcement procedure itself, therefore the implementation of foreclosure and other execution measures, is not governed by the Brussels II Regulation, but by national law. Yet it is essential that national authorities apply rules which secure efficient and speedy enforcement of decisions issued under the Regulation so as not to undermine its objectives. This applies in particular with regard to access rights and the return of the child following an abduction for which the exequatur procedure is no longer the only way to achieve enforceability in order to speed up the procedure.

‘In this context, the European Court of Human Rights has consistently ruled that once the authorities of a Contracting State to the 1980 Hague Convention have found that a child has been wrongfully removed pursuant to the Convention, they have a duty to make adequate and effective efforts to secure the return of the child. A failure to make such efforts constitutes a violation of Article 8 of the European Convention on Human Rights (right to respect for family life) (see e.g. the Case of Iglesias Gil and A.U.I. v. Spain of 29 July 2003, paragraph 62). Each contracting State must equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention (see e.g. the Cases of Maire v. Portugal of 26 June 2003, paragraph 76 and Ignaccolo-Zenide v. Romania of 25 January 2000, paragraph 108).

The European Court of Human Rights has also emphasised that proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for the relations between the child and the parent with whom he or she who does not live.
The adequacy of a measure is therefore to be judged by the swiftness of its
implementation (see e.g. the Cases of Ignaccolo-Zenidi v. Romania of 25 January 2000, paragraph 102 and Maire v. Portugal of 26 June 2003, paragraph 74)’ (Practice Guide 2005, p. 42).

It has not been necessary to include in the Brussels II Regulation an equivalent of Article 16 of Council Regulation (EC) No 1347/2000 (Brussels II 2001) on agreements with third countries. This is because pre-existing agreements are already protected in accordance with Article 307 of the EC-Treaty. As regards future agreements, which can only be concluded by the Community to the extent they may affect the Regulation or alter its scope in accordance with the AETR case law, these would take precedence over the Brussels II Regulation even in the absence of a specific provision to this effect.

Section 1 (Chapter III) Recognition and enforcement ('exequatur procedure')

Section 1 of Chapter III gives rules how to start legal procedures to get a judgment of the court of the Member State of origin recognized in another Member State or to undo such a recognition. These rules state that a certificate must be submitted at the court of the Member State where recognition is sought or confirmed.

The only effect of a judgment which has ordered, and with that established, a divorce, legal separation or marriage annulment, is the ending of a marriage. It cannot be enforced. But it can be necessary to get it recognized in another Member State, this to be able to start on that base other legal proceedings there, for instance about the division of matrimonial community property or the observance of maintenance obligations, child support, arrangements concerning rights of parental access et cetera. The same applies to judgements on matters of parental responsibility. For such judgments it may, in addition, be necessary to actually enforce the decision in another Member State.

Article 21 of the Brussels II Regulation

Index Article 21

• Recognition of a foreign judgment [Art. 21 BR II]
• Direct recognition of a judgment by the authorities and courts of another Member State [Article 21(1)(2) BR II]
• Parties may contest the recognition or the refusal of a recognition [Article 21(3) BR II]
• Recognition of a judgment raised as an incidental question [Article 21(4) BR II]

Recognition of a foreign judgment [Article 21 BR II]

A judgment which has established a divorce, legal separation or marriage annulment or which contains a decision on matters of parental responsibility, like the right to have assess to a child, is of course recognized and enforceable as such in the State which court has given this judgment. Sometimes it is necessary to get these judgments also recognized as such in another Member State of the European Union.

This Article establishes in paragraph 1 the principle of automatic recognition that does not imply any specific procedure of judgments to which Article 13 applies. It should be noted that the judgment must be a final one against which no further appeal lies in the Member State of origin. Paragraph 1 also provides that authentic instruments and court settlements shall be recognized under the same conditions as judgments. In addition, the provisions on recognition and enforcement also cover costs and expenses.

Paragraph 2 aims at the effect most frequently sought by European citizens. The main effect of automatic recognition is that no procedures are required for the updating of civil status documents in another Member State, the existence of a final judgment given in another Member State being sufficient for the purpose. This means that the civil-status records can be updated without the need for any additional decision, which saves time and money.

For purposes of proceedings on recognition or non-recognition, paragraph 3 refers to the same procedures as for a declaration of enforceability of a judgment on parental responsibility in Section 2. Local jurisdiction is determined by reference to the internal law of the Member State where proceedings are brought. However, in the case of rights of access or the return of the child certified pursuant to Chapter IV, Section 3, it would no longer be possible to apply for non-recognition. The recognition of a foreign judgment may be appealed to also during legal proceedings as an incidental question.

Direct recognition of a judgment by the authorities and courts of another Member State [Article 21(1)(2) BR II]

The principle rule with regard to recognition is set in Article 21, paragraph 1, BR II. It indicates that ‘a judgment given in a Member State, shall be recognised in the other Member States without any special procedure being required’. In particular no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State (Article 21, paragraph 2, BR II). It should be noted that the judgment of the court of origin must be a final one against which no further appeal lies in the Member State of origin. Otherwise a request to recognize a judgement at the court of another Member State is not possible (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999). Paragraph 1 of Article 21 BR II also provides that authentic instruments and court settlements shall be recognized under the same conditions as judgments. In addition, the provisions on recognition (and enforcement) also cover costs and expenses.

‘62. (….) While there was agreement on the provision in paragraph 1 which involves automatic recognition, in the sense of recognition that does not imply any specific procedure, in all the Member States of judgments given in each one, the same level of agreement did not exist on the effects which should follow, particularly in relation to the most important issue, the updating of civil-status records.
63. That is why, after lengthy discussion, agreement was reached on [Article 21(2)] which requires no special procedure for updating the civil-status records of a Member State, the existence of a final judgment relating to divorce, legal separation or marriage annulment given in another Member State being sufficient for the purpose. The recognition involved is therefore not judicial but is equivalent to recognition for the purposes of civil-status records.
In the wording of this provision account was taken of Article 8 of the Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages, prepared in the International Commission on Civil Status. That is an important change and it will be much appreciated by European citizens since that is the effect most frequently sought and, once the Convention enters into force, updating civil-status records without the need for any additional decision will save time and money, thus representing a considerable advance over the 1968 Brussels Convention. It should be noted that the judgment must be a final one against which no further appeal lies, and that too is different from the 1968 Brussels Convention situation. See Article 32(3) [was 33(3)] regarding the documents to be presented.
64. As specified in Article 1 in relation to the scope of the [Regulation] in terms of matters covered, it is sufficient to repeat here that the recognition referred to in this Article does not affect questions of the fault of spouses, marriage contract, maintenance or any other consequences of an economic or any other nature included in the same judgment. It is a question, therefore, only of recognition of the dissolution of the link of marriage or of the legal separation (see paragraph 22). For provisional measures, see [Article 20]’ (Borras (1998) C 221/49-50).

The national and local governments (Municipality’s registrar's office) and administrative services (Tax Authorities, Aliens Police Registration Department) of another Member State thus automatically have to recognize a judgment of the court of another Member State on matters of divorce, legal separation, marriage annulment and parental responsibility. No exequatur procedure or other legal proceeding has to be started to get this result. Nevertheless the authorities and administration services have the possibility to refuse the recognition of such a judgment, but only on specific grounds, which are mentioned in the Brussels II Regulation. These rules make a distinction between the recognition of judgments which have established a divorce, legal separation or marriage annulment and those one matters of parental responsibility, irrespective of the fact if the judgment on a matter of parental responsibility is given by a court of the Member State of origin on a separate request or as one of the decisions in a legal proceeding to get a divorce, legal separation or marriage annulment.

Parties may contest the recognition or the refusal of a recognition [Article 21(3) BR II]

The national and local authorities and administrative services of the Member State where recognition is sought, shall recognize the judgment of the court of another Member State, unless one of the grounds of non-recognition of Article 22 and Article 23 BR II applies. When an authority or public service of a Member State refuses the recognition of a judgment of the court of another Member State, any interested party has the right to appeal against this decision with the court of the Member State where recognition is sought. The same applies to an interested party who doesn’t approve that the authorities or public service have recognized the foreign judgment. He can file a request at the court of the Member State whose authorities have recognized the judgment, to undo this decision. Therefore, the recognition or non-recognition of a foreign judgment may be accepted or contested.

The concept of an ‘interested party’, as mentioned in Article 21, paragraph 3, of the Brussels II Regulation, entitled to apply for a decision as to whether the judgment should or should not be recognised must be interpreted in the broad sense under the national law applicable and may include the public prosecutor or other similar bodies where permitted in the State in which the judgment is to be recognised or contested (Borras (1998) C 221/50).

The Brussels II Regulation states which procedure has to be followed by an interested party who applies for a decision that the judgment of the court of another Member State is to be or is not be recognised. This appeal has to be done in accordance with the procedures provided for in Section 2 of Chapter III with regard to the enforcement of judgments on matters of parental responsibility, therefore by means of a so-called ‘exequatur procedure’. This means that the request for a recognition or non-recognition must be made to the competent court in the Member State in which recognition is sought. All Member States have designated for this purpose specific courts, where such requests can be lodged, which can be found in list 1. This court shall declare, without delay, that the judgment is recognized or not-recognized in that Member State. But at making this decision, it has to observe Articles 24 to 26 BR II, which imply that the court cannot review the matter of jurisdiction of the court of origin (Article 24 BR II), nor may it re-consider matters because its national marital law differs from the national law that was applicable to the case (Article 25 BR II). And under no circumstances it may review the judgment to its substance. It can only refuse recognitions on one of the grounds of Article 22 BR II (judgments which have established a divorce, legal separation or marriage annulment) or Article 23 BR II (judgments on matters of parental responsibility).

The local jurisdiction of the court that has to rule over the recognition or non-recognition shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought.

The seised court, who is asked to rule on a request for a recognition or non-recognition of a judgment coming from another Member State, forms its decision only on the base of the information presented by the applicant. No other parties are involved at this stage of the procedure. Within six weeks the court gives a judgment in which it grants or refuses the request of the applicant to recognize or to deny the recognition of the judgment of the court of the Member State of origin. With respect to this decision all interested parties, thus the applicant and other interested persons who want the judgment to be recognized or not to be recognized, can resort to a superior court of that same Member State to review the decision of the court at first instance. But also the Court of Appeal is not allowed to reconsider the foreign judgment with regard to its substance, nor can it review the jurisdiction of the court of the Member State of origin or compare the outcome to its national matrimonial law. It can only examine if the lower court has ruled on the request in accordance with the criteria set in the Brussels II Regulation for the recognition of judgments of the courts of other Member States. This means it can only refuse the recognition on one of the specific grounds mentioned in Article 22 and Article 23 BR II. For more information about the exequatur procedure and the possibility to contest the decision of the lower court see the comments to the exequatur procedure for enforcement of judgments on matters of parental responsibility.

Article 22 BR II sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while Article 23 BR II contains grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings or separately. The reason for the division is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999 and Borras (1998) C 221/50))

Recognition of a judgment raised as an incidental question [Article 21(4) BR II]

Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue (Article 21, paragraph 4, BR II). It is for reasons of simplicity that the courts hearing the main case also have jurisdiction to determine recognition of a judgment of incidental form (Borras (1998) C 221/50). So it is not necessary to stay the proceeding and lead the request of question to the court that is designated by this Member State for the purpose to rule about requests of recognition or non-recognition of judgments of other Member States. The court where the issue of recognition is raised as an incidental question, may investigate itself if the judgment of the court of another Member State has to be recognizes or not. Of course it has to respect the same criteria and grounds of non-recognition. It’s judgment on this question is open to an appeal at the superior court which may normally review the other matters of the judgment at first instance. When an ordinary court decides in an incidental question about the recognition of a foreign judgment, then it’s no longer possible to file a request on this matter at another court of the same Member State, not even the one who has been specifically designated for making decisions about the recognition and non-recognition of judgments of the courts of other Member States.

Article 22 of the Brussels II Regulation

Index Article 22

• Grounds for non-recognition of foreign judgments relating to divorce, legal separation or marriage annulment [Article 22 BR II]
• Recognition is contrary to public policy [Article 22, point (a) BR II]
• Foreign judgment is given in default of appearance [Article 22, point (b) BR II]
• Irreconcilability with another judgment between the same parties [Article 22, point (c)(d), BR II]

Grounds for non-recognition of foreign judgments relating to divorce, legal separation or marriage annulment [Article 22 BR II]

Article 22 BR II sets out the grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, while Article 23 BR II sets out the grounds of non-recognition of judgments relating to parental responsibility given on the occasion of matrimonial proceedings. The reason for the division is that, although both types of judgment are closely connected with the matrimonial proceedings, they may have been given by different authorities, depending on the internal distribution of jurisdiction within the State of origin. Another reason for the division may be that the objective of the matrimonial proceedings and the objective of the parental-responsibility proceedings differ in such a way that the grounds for non-recognition cannot be the same in both cases.

In line with normal practice, point (a) mentiones the first ground of non-recognition of judgments relating to a divorce, legal separation or marriage annulment, namely the fact that it is manifestly contrary to public policy in the State in which recognition is sought. But it needs to be borne in mind, too, that Article 19 of the Brussels II Regulation prevents a judgment being reviewed as to its substance, Article 18 BR II prohibits non-recognition of a foreign judgment because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts and Article 17 BR II states that the test of public policy may not be applied to the rules relating to jurisdiction.

Point (b) includes the ground of non-recognition where the judgment was given in default of appearance, if the respondent was not notified properly and in good time to defend himself. But the judgment must be recognised, as is the normal consequence of the proper operation of the Regulation, where the respondent has accepted it unequivocally, as for instance by remarrying.

Irreconcilability of the judgment with other judgments is dealt with in two separate provisions, points (c) and (d). There is no requirement for the objective and the ground to be identical.

Point (c) refers to irreconcilability with a judgment given in proceedings between the same parties in the Member State in which recognition is sought, regardless of whether the judgment in the latter State predates or postdates the judgment given in the State of origin.

Point (d) relates to cases in which the judgment, whether given in another Member State or in a non-member State between the same parties, meets two conditions it was given earlier, and it fulfils the conditions necessary for its recognition in the Member State in which recognition is sought(COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

If none of the above grounds for non-recognition apply, then the authorities, administrative services and courts of the Member State where recognition is sought, are compelled to recognize the judgment (and its immediate effects) of the court of the Member State of origin by which a divorce, legal separation or marriage annulment is established. This also applies with regard to other questions where the end of the marriage is of importance to make a decision or grant a right.

Recognition of foreign judgment is contrary to public policy [Article 22, point (a) BR II]

The grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment are laid down in Article 22 BR II. A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought.

In line with normal practice, the first ground of non-recognition of judgments relating to a divorce, legal separation or marriage annulment is the fact that it is manifestly contrary to public policy in the State in which recognition is sought. The Member States were extremely sensitive on this issue on account of the major discrepancies between their laws on divorce. Those Member States in which dissolution of the marriage bond is easiest feared that their judgements may not be recognised in Member States with more stringent rules. To provide adequate guarantees for both groups of States, a system has been established whereby, on the one hand, non-recognition on grounds that recognition is manifestly contrary to the public policy of the State in which recognition is sought, is retained, and, on the other hand, other provisions stipulate that recognition may not be refused on the grounds that divorce, legal separation or marriage annulment would not be allowed on the same facts. So it needs to be borne in mind, too, that Article 26 BR II of the Brussels II Regulation prevents a judgment being reviewed as to its substance, Article 25 BR II prohibits non-recognition of a foreign judgment because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts and Article 24 BR II states that the test of public policy may not be applied to the rules relating to jurisdiction. At the time of recognition, the court having jurisdiction must examine the judgment given in the State of origin in the light of the provisions referred to in the preceding paragraph. That solution is based on the arrangement under the 1970 Hague Convention on the Recognition of Divorces and Legal Separations to which some Member States are party (Borras (1998) C 221/51.

Foreign judgment is given in default of appearance [Article 22, point (b) BR II]

Pursuant to Article 22, point (b), BR II, a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence, unless it is determined that the respondent has accepted the judgment unequivocally.

Paragraph (b) includes the ground of non-recognition which gave rise to the highest number of cases of non-recognition under the 1968 Brussels Convention (Article 27(2)) and therefore to the largest number of problems and questions put to the Court of Justice in relation to grounds of non-recognition. It is the non-recognition in cases where the judgment was given in default of appearance, if the respondent was not notified properly and in good time to defend himself. The last part of the provision is added to provide that the judgment must be recognised, as is the normal consequence of the proper operation of the Brussels II Regulation 2003, where the respondent has accepted it unequivocally, as for instance by remarrying (Borras (1998) C 221/51).

Irreconcilability with another judgment between the same parties [Article 22, point (c)(d), BR II]

Irreconcilability of the judgment with other judgments is dealt with in two separate provisions, points (c) and (d) of Article 22 BR II. In contrast to the provisions of Article 27(5) of the 1968 Brussels Convention, there is no requirement for the objective and the ground to be identical.

In agreement with Article 22, point (c), BR II, a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought. Point (c) refers, in this respect, to irreconcilability with a judgment given in proceedings between the same parties in the Member State in which recognition is sought, regardless of whether the judgment in the latter State predates or postdates the judgment given in the State of origin. A special problem arises when one judgment is on divorce and the other is on separation. An example may clarify the situation. Consider the case of a separation judgment given in State A and a subsequent divorce judgment given in State B. If recognition of the second judgment is sought in State A, recognition cannot be refused on grounds of its irreconcilability with the judgment given previously in State A, since separation may be considered a preliminary to divorce and, consequently, there would be not a conflict with a subsequent divorce judgment. However, if recognition of the separation judgment given in State A were sought in State B, where the marriage had been dissolved by a divorce judgment, the judgment would have to be rejected since the separation judgment had been replaced by a divorce judgment in State B. The advantage of this interpretation is that it guarantees that the matrimonial situation of the spouses will be considered the same throughout all Member States. Any other interpretation would mean that the spouses could be considered as legally separated in State A but divorced in all other Member States (Borras (1998) C 221/51-52).

Finally, Article 22, point (d), BR II states that a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. Point (d), therefore, also deals with irreconcilability of the judgment with other judgments. It relates to cases in which the judgment, whether given in another Member State or in a non-Member State between the same parties, meets two conditions: (a) it was given earlier and (b) it fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. An example may clarify the situation to which this provision refers. In non-member State E a separation judgment is given that meets the requirements for recognition in State B. Subsequently, a decision granting the same spouses a divorce is given in Member State C, requesting recognition of that judgment in Member State B. In this situation, the divorce judgment given in Member State C is not irreconcilable with the previous legal separation judgment given in non-member State E and is therefore recognised in Member State B. In the opposite case, that is to say if a divorce judgment is given in non-member State E and subsequently a separation judgment is given in Member State C, Member State B will refuse to recognise Member State C’s judgment on the ground that it is irreconcilable with a divorce judgment given in non-member State E which meets the requirements for recognition in Member State B (Borras (1998) C 221/51-52).

Article 23 of the Brussels II Regulation

Index Article 23

• Grounds of non-recognition of foreign judgments relating to parental responsibility [Article 23 BR II]
• Recognition of foreign judgment is contrary to public policy [Article 23(a) BR II]
• Child or other person has not been given an opportunity to be heard [Article 23(b)(d) BR II]
• Foreign judgment given in default of appearance [Article 23(c) BR II]
• Irreconcilability with another judgment [Article 23(e)(f) BR II]
• Procedure of Article 56 BR II has not been complied with [Article 23(g) BR II]

Grounds of non-recognition of foreign judgments relating to parental responsibility [Article 23 BR II]

As mentioned earlier, the Brussels II Regulation entails separate grounds for non-recognition of judgments relating to parental responsibility because they may have been given by another authority or court of the Member State of origin than that who has given a judgment which has established a divorce, legal separation or marriage annulment, depending on the internal distribution of jurisdiction within the State of origin. Also the intentions and objectives of parental-responsibility proceedings differ from those of matrimonial proceedings (Borras (1998) C 221/50)

As a principle a judgment relating to parental responsibility will automatically be recognized by the national and local authorities and services and even by the courts of another Member State, unless one of the grounds of non-recognition in Article 23 BR II applies. Article 23 BR II covers the grounds of non-recognition of judgments relating to parental responsibility understood in the broad sense and therefore including not only court judgments but also decisions of whatever kind by whatever authority with regard to parental responsibility, whether or not closely connected with a divorce. In addition to the general comment above on the justification for the separation of these grounds of non-recognition from those relating to matrimonial judgments, the grounds included merit some further comment (Borras (1998) C 221/52).

The provision on public policy, which appears in point (a), makes it impossible to refuse recognition purely because the judgment is manifestly contrary to public policy and requires that consideration be given to taking the best interests of the child into account as well. Default of appearance is dealt with in point (c), and the comments on point (b) of Article 22 BR II also apply.

The grounds of non-recognition include (in point (d) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard.

Finally, points (e) and (f) deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

If none of the above grounds for non-recognition apply, then the authorities, administrative services and courts of the Member State where recognition is sought, are compelled to recognize the judgment (and its immediate effects) of the court of the Member State of origin.

Recognition of foreign judgment is contrary to public policy [Article 23(a) BR II]

According to Article 23, point (a), BR II, a judgment relating to parental responsibility shall not be recognised if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child.

The provision on public policy, which also appears in Article 22, point (a), BR II, corresponds exactly to the provision in Article 23(2)(d) of the 1996 Hague Convention, in that it makes it impossible to refuse recognition purely because the judgment is manifestly contrary to public policy and requires that consideration be given to taking the best interests of the child into account as well.

Child or other person has not been given an opportunity to be heard [Article 23(b)(d) BR II]

Pursuant to Article 23, point (b), BR II, a judgment relating to parental responsibility shall not be recognised if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought. As in the 1996 Hague Convention (Article 23(2)(b) and (c)), the grounds of non-recognition include (in points (b) and (d) of Article 23 BR II 2003) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard. The child must be heard in accordance with the rules applicable in the Member State concerned, which must include the rules in the United Nations Convention of 20 November 1989 on the Rights of the Child and in particular Article 12 thereof, which provides:

1. the States party shall guarantee any child who is in a position to form a judgment of his own the right to express an opinion freely on any matter affecting him, and that due account is taken of the child’s opinion, in the light of his age and maturity;
2. to that end the child shall be given an opportunity to be heard in any legal or administrative proceedings affecting him, either directly or through a representative or an appropriate body, in accordance with the rules of procedure of national law (Borras (1998) C 221/52).

Article 23, point (d), BR II brings along that a judgment relating to parental responsibility shall not be recognised on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard. The grounds of non-recognition include (in point (d)) the fact that the child was not given an opportunity to be heard or that any person claiming that the judgment infringes his or her parental responsibility was not given an opportunity to be heard. .

Foreign judgment given in default of appearance [Article 23(c) BR II]

From Article 23, point (c), BR II results that a judgment relating to parental responsibility shall not be recognised where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally. The comments on point (b) of Article 22 BR II in relation to a default of appearance apply as well to a default dealt with in point (c) of Article 23 BR II.

Irreconcilability with another judgment [Article 23(e)(f) BR II]

Points (e) and (f) of Article 23 BR II deal with non-recognition on grounds of irreconcilability with another judgment and lay down different rules, depending on whether the judgment is given in the Member State in which recognition is sought or in another Member State or in the non-Member State of the habitual residence of the child. Solely with regard to parental responsibility, the judgment with which the judgment for which recognition is sought is irreconcilable must have been given later since earlier judgments will have been taken into account in the judgment connected with the divorce. The objective is to prevent the contradiction which could result, for instance, between a judgment given in another Member State regarding divorce and custody and a judgment given in the forum denying paternity (Borras (1998) C 221/52).

According to Article 23, point (e), BR II a judgment relating to parental responsibility shall not be recognised if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought, whereas Article 23, point (f), BR II specifies that a judgment relating to parental responsibility shall not be recognised if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Procedure of Article 56 BR II has not been complied with [Article 23(g) BR II]

In line with Article 23, point (g), BR II, a judgment relating to parental responsibility shall not be recognised if the procedure laid down in Article 56 BR II has not been complied with. This point refers to the situation that a child is placed in another Member State and the procedure prescribed in Article 56 BR II has not been complied with. Where a court having jurisdiction under Articles 8 to 15 BR II contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement. The judgment on placement referred to may be made in the requesting State only if the competent authority of the requested State has consented to the placement. The procedures for consultation or consent are governed by the national law of the requested State. Where the authority having jurisdiction under Articles 8 to 15 BR II decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

Article 24 of the Brussels II Regulation

Prohibition of review of jurisdiction of the court of origin [Article 24 BR II]

The national and local authorities (such as the Municipality’s registrar's office) and administrative services (Tax Authorities, Aliens Police Registration Department) of a Member State still may and even have to verify under the Brussels II Regulation if the judgment of the court of another Member State is valid and has to be recognized as such. The same applies to the courts of the Member State where recognition is sought, for instance at an appeal of an interested party against a decision of the national of local authority to refuse or to grant the requested recognition. It is also conceivable that during an already pending case, for instance over a claim to observe a maintenance obligation, to respect access rights or to divide the matrimonial community property of the former spouses, the court is indirectly confronted with a statement or defence of one of the parties that a judgment of the court of another Member State relating to a divorce, legal separation, marriage annulment or a matter of parental responsibility is not valid and therefore can’t be recognized as such or, reversed, is valid, so that the end of the marriage has to be recognized indeed. Where the recognition of a judgment is raised in this way as an incidental question in a court of a Member State, that court may determine that issue, so that it is not necessary to file this question as a separate lawsuit or request at the court which is appointed by the Member States to rule over matters of recognition of judgments coming from other Member States.

The Brussels II Regulation takes the view that the Member State in which recognition is sought, must examine the grounds of jurisdiction on the basis of which the judgment in the Member State of origin has been adopted. But it encloses strict rules to what extent the concerning authorities and courts are entitled to determine whether a judgment of the court of another Member State has to be recognized or not. The authorities and courts of the Member State where recognition is sought, are subject to the limitations mentioned in Article 24, Article 25 and Article 26 BR II. With due observance of these limitations, the authorities and courts of the Member State where recognition is sought, can decide that a judgment of the court of another Member State is not to be recognized, but only on specific grounds, which are laid down in Article 22 BR II (grounds of non-recognition of judgments relating to a divorce, legal separation or marriage annulment) and Article 23 BR II (grounds of non-recognition of judgments relating to parental responsibility). Otherwise they are compelled to recognize the judgment of the courts of other Member States on matters which fall under the scope of the Brussels II Regulation 2003.

Article 25 of the Brussels II Regulation

No refusal on the ground of differences in applicable law [Article 25 BR II]

The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts or grounds as the Member State of origin. Article 25 BR II is to be seen in conjunction with Article 22, point (a), BR II. It is designed to meet the concerns of States with more tolerant internal provisions on divorce who fear that the judgments given by their courts might not be recognised in other Member States because they are based on grounds unknown in the legislation of the Member States in which recognition is sought. The provision therefore limits indiscriminate use of public policy. An example might be legal separation as a basis for divorce: if in the State of origin divorce can be granted after a separation of two years, an incorrect interpretation of the public policy of the State in which recognition is sought, where the law requires five years of separation, could result in the refusal of recognition.

The 'law' of the Member State in which recognition is sought includes both internal substantive provisions and private international law provisions. The drafting difficulties encountered in the Working Party resulted in a text of Article 25 BR II which refers only to the ‘law’ of the Member State in which recognition is sought and the word ‘internal’ has been deleted: the reason for the deletion was to include both internal substantive provisions and private international law provisions. The objective is simply to ensure that differences between legislation in the Member States cannot result in non-recognition and, ultimately, the very purpose of the Convention being turned into a dead letter (Borras (1998) C 221/53).

Article 26 of the Brussels II Regulation

Non-review as to substance [Article 26 BR II]

Under no circumstances may a judgment be reviewed as to its substance (Article 26 BR II). This is the classic prohibition on review as to substance at the time of recognition (or enforcement). It is a necessary rule in order not to subvert the meaning of the exequatur procedure, which does not mean allowing the court in the State in which recognition is sought to rule again on the ruling made by the court in the State of origin. The object of the provision is to prevent the measures from being reviewed in the exequatur procedure, although it may in no case lead to their being set in stone. Although the basic principle is that the Member State in which recognition is sought may not review the original judgment, a change in circumstances, however, may lead to a need for revision of the protective measures, as always happens when we are dealing with situations which, despite having a degree of permanence in time, may need modification, which would be the responsibility of the competent authority regarding parental responsibility. In that sense, for instance, Article 27 of the 1996 Hague Convention makes it clear that the prohibition on review as to substance does not prevent such review as is necessary of the protective measures adopted. In this case too, the provision in this Article must be understood as being without prejudice to the adoption by the competent authority of a new ruling on parental responsibility when a change in circumstances occurs at a later stage (Borras (1998) C 221/53).

Article 27 of the Brussels II Regulation

Stay of proceedings [Article 27 BR II]

A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged (Article 27, paragraph 1, BR II). A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal (Article 27, paragraph 2, BR II).

This provision must be seen in conjunction with the provisions of Article 21, paragraph 2, BR II, providing that automatic recognition and in particular the updating of civil-status records do not require any special procedure if the judgment of the State of origin is one against which no further appeal lies under the law of that Member State. Article 27 BR II allows the court of a Member State in which recognition is sought to stay the proceedings if an ordinary appeal against the judgment has been lodged. For stay of enforcement, see Article 35 BR II. In the case of judgments given in Ireland or the United Kingdom, provision is made for special features of their national legislation (Borras (1998) C 221/53-54).

Section 2 (Chapter III) Enforcement ('exequatur procedure')

Whereas Section 1 of Chapter III regulates the recognition of judgments in other Member States, Section 2 of Chapter III of the Brussels II Regulation deals with the enforcement of judgments in other Member States. With regard to the possibility to request for the enforcement of a judgment of the court of the Member State of origin in another Member State a distinction has to be made between, on the one hand, judgments which have established a divorce, legal separation or marriage annulment and, on the other hand, judgments on matters of parental responsibility.

The Brussels II Regulation does not regulate the enforcement of judgments which have ordered, and therefore merely established, a divorce, legal separation or a marriage annulment. Its scope is limited to the question which Member State has jurisdiction over such matters and to the procedure to get these judgments recognized in other Member States. A judgment which has established a divorce, legal separation or marriage annulment can’t actually be enforced, since it has no other legal effects than that the marriage is ended. It has no immediate effect on maintenance obligations or the division of matrimonial community property, since these matters have to be solved, if need be, through separate legal proceedings. That is why no particular provisions are put down in the Brussels II Regulation for the right of enforcement in other Member States of judgments from another Member State that break the marriage link, especially since recognition includes the amendment of civil-status records without any special procedure being required.

With regard to judgments on matters of parental responsibility this is different. The nature of these judgments implies that it must be possible to actually get access to the child or even remove it from another Member State. After all, the term ‘parental responsibility' includes, according to Article 2, paragraph 7, BR II, 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 incorporates all rights of custody and rights of access. The right of custody includes 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. The right of access includes in particular the right to take a child to a place other than his or her habitual residence for a limited period of time. So the term ‘parental responsibility' encompasses also matters such as guardianship and the placement of a child in a foster family or in institutional care. This definition of ‘parental responsibility’ is broad, since it was felt to be important not to discriminate between children by excluding certain measures and thus leaving certain children and situations outside the scope of the Brussels II 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. The matters referred to may, in particular, deal with (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 and (e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property.

While, for matrimonial matters, recognition procedures are sufficient, in view of the limited scope of the Brussels II Regulation (restricted to the end of the marriage only) and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses. For this reason Section 2 of Chapter III of the Brussels II Regulation includes a few provisions for the execution of foreign judgments on matters of parental responsibility. Enforcement can be achieved through a so-called ‘exequatur procedure’, in which the court of the Member State where enforcement is sought, can only review if basic formalities and conditions are met, but not if the judgment of the court of the Member State of origin is to its substance or outcome correct.

With regard to decisions concerning access rights (Article 41 BR II) and the return of a child following abduction (Article 42 BR II) there is, besides the exequatur procedure, another way to get a foreign judgment recognized and enforceable in another Member State. The Brussels II Regulation ensures that a judgment on access rights or child abduction, issued in one Member State, is directly recognised and enforceable in another Member State provided it is accompanied by a certificate, which is drawn up by the court of the Member State of origin. As a consequence it is no longer necessary to start an exequatur procedure to obtain an ‘exequatur’. This also means that it is not possible within this procedure to oppose the recognition of the judgment before a Court of Appeal of the Member State of enforcement. The judgment is to be certified in the Member State of origin provided certain procedural safeguards have been respected. This alternative procedure, however, does not prevent holders of parental responsibility from seeking recognition and enforcement of a judgment by applying for an exequatur under the relevant parts of the Brussels II Regulation if they wish to do so (Article 40, paragraph 2, BR II).

Article 28 of the Brussels II Regulation

Index Article 23

• Enforceability of judgments on the exercise of parental responsibility [Article 28 BR II]
• Exequatur procedure [Articles 28 - 36 BR II]
• Appeal against the decision of the court of the Member State where enforcement is sought [Articles 33 - 35 BR II]

Enforceability of judgments on the exercise of parental responsibility [Article 28 BR II]

This Article governs the need for exequatur if a judgment on the exercise of parental responsibility over a child, given in one Member State, is to be enforced in another. All that is required is that the courts, listed by the Member States, decide, on the application of any interested party, on the possibility of enforcement in the Member State in which recognition and enforcement is sought. The court of the Member State where enforcement is sougt, shall declare the judgement of the courts of another Member State enforceable in its own territory, unless the request for such declaration is refused rightfully, wich can only take place on one of the grounds listed in Article 22 and Article 24 BR II. If the court of the Member State where enforcement is sought, awards the request, the foreign judgment shall be enforceable in the entire territory of that State. In the United Kingdom, however, such a judgment shall be enforceable in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom (Article 28, paragraph 2, BR II).

The purpose of Article 28 BR II is solely to make it possible to enforce a judgment given in another State in relation to parental responsibility since the procedure for enforcement in the strict sense is governed by each State's internal law. The various other provisions of Section 2 of Chapter III of the Brussels II Regulation are intended to establish a procedure common to all the Member States for obtaining exequatur which will replace the relevant provisions in internal legislation or in other Conventions (Borras (1998) C 221/54). These provisions have no effect for the way in which enforcement has to be executed in the Member State where enforcement is sought and obtained.

Once exequatur has been obtained in the Member State where enforcement is sought, that State's internal law will govern the practical measures for enforcement (Article 47, paragraph 1, BR II).

Exequatur procedure [Articles 28 - 36 BR II]

Exequatur, is a concept specific to private international law and refers to the decision by a court authorising the enforcement in that country of a judgment, arbitral award, authentic instruments or court settlement given abroad. In order to acquire the right to enforce a judgment on matters of parental responsibility of the court of one of the Member States in another Member State, the Brussels II Regulation has chosen for a so-called ‘exequatur procedure’. The objective of such a procedure is only to get a written authorisation of the competent court of the Member State where recognition and enforcement are sought, to execute a judgment of a court of another Member State. It is a simple and quick procedure, since the requested court is not allowed to consider the case again as to its substance (Article 26 BR II). This is already done by the court of the other Member State, which previously has given its judgment on this matter. The court of the Member State of enforcement is bound to the outcome as documented in the foreign judgment. It may neither review if the correct law has been applied to the judgment of the court of the other Member State (Article 25 BR II). The court of the Member State of enforcement is neither allowed to review the jurisdiction of the court of the Member State of origin (Article 24 BR II). When the court of the Member State of origin has decided it has jurisdiction over the matter, then this is a fact, even when the court of the Member State of enforcement thinks differently. Therefore, the court of the Member State where enforcement is sought, is only allowed to examine if the judgment of the court of another Membre State meets certain conditions, which are laid down in Article 22 and Article 23 BR II. If that's the case, then it must recognize the foreign judgment and declare it also enforceable in its own Member State.

After the request for recognition and enforcement of the foreign judgment is lodged with the court of the Member State where enforcement is sought and that has been designated for this purpose (Article 29 BR II), the exequatur procedure starts. The procedure for making the application, thus the exequatur procedure itself, is governed by the national law of the Member State of enforcement (Article 30 BR II). Any interested party may request the court of a Member State to recognize and declare enforceable a judgment of a court of another Member State on a matter of parental responsibility. 'Interested party', for the purposes of the application, covers not only the spouses or children but must also include the public authority (Public Prosecutor's Office or similar authority) in Member States where that is possible. The requested court examines solely on the basis of the documents and papers which are added to the request of the applicant, if recognition and enforcement of the foreign judgment is in line with the criteria of the Brussels II Regulation. Neither the applicant, nor the person against whom enforcement is sought, nor the child concerned, are heard during this procedure (Article 31 BR II). They cannot present their views to the court at this stage. The court decides therefore of its own motion. It may only refuse the requested recognition and enforcement on limited grounds (Article 22 and Article 23 BR II).

In principle within six weeks the requested court must give a judgment in which it declares that the foreign judgement can be enforced and executed as an enforceable judgment in its own Member State or in which it refuses the request of the applicant (Article 31 BR II). So the appointed court of the Member State where enforcement is sought, decides whether a declaration of enforceability is appropriate with due observance of the Brussels II Regulation, and in particular of Section 2 and Section 3 of Chapter III of this Regulation. If it gives a declaration of enforceability the applicant is able to execute the judgment of the court of the Member State of origin in the Member State of enforcement, but only in conformity with the latter's national laws concerning the enforcement and execution of judgments. The Brussels II Regulation plays no part in this matter, although a judgment of another Member State, that is declared enforceable, can’t have less weight in this respect in view of the purposes of that Regulation. This is emphasised in Article 47, paragraph 2, BR II: any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 of Chapter III of the Brussels II Regulation shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.

Nevertheless, with regard to the exercise of rights of access, a distinction must be drawn between decisions on attributing rights of access and decisions on organizing their exercise. In the latter case the courts of the Member State of enforcement should have some leeway to make the necessary practical arrangements, to the extent that these are not foreseen in the original decision and that its essential elements are respected. This is laid down in Article 48 BR II. ‘The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected’ (Article 48, paragraph 1, BR II). ‘The practical arrangements made pursuant to paragraph 1 shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter’ (Article 48, paragraph 2, BR II).

Appeal against the decision of the court of the Member State where enforcement is sought [Articles 33 - 35 BR II]

As mentioned earlier, the court that is seised to decide on a request to declare a judgment from another Member State enforceable, shall base its decision solely on the documents presented to it by the applicant. Neither the applicant nor the person against whom enforcement is sought, nor the child concerned, are allowed at this stage of the exequatur procedure to put their views forward. They are not heard and they do not have the possibility to present a written supplement or defence. The decision of the seised court is focussed in first instance on the formalities laid down as grounds for a refusal of an enforcement (Article 22 and Article 23 BR II). But after the seised court has given its decision, in which it either grants or denies the right of enforcement in its own country, that decision is subject to appeal. All interested parties, the applicant and the person against whom enforcement is sought as well as the child concerned, can resort to a superior court of the Member State of enforcement to review this decision of the court at first instance. But also that Court of Appeal is not allowed to reconsider the foreign judgment with regard to its substance, nor can it review the jurisdiction of the court of the Member State of origin. It can only examine if the lower court has ruled on the request for recognition and enforcement in accordance with the criteria set in the Brussels II Regulation for the recognition and enforcement of judgments of the courts of other Member States. The judgment given on appeal may be contested on specific grounds (Article 34 BR II).

Article 29 of the Brussels II Regulation

Jurisdiction of local courts over applications to obtain a declaration of enforceability [Article 29 BR II]

Article 29 BR II makes clear where an interested party, who wants to get a declaration of enforcement with effect in another Member State, has to lodge his application. It is divided into two paragraphs: the first governs the type of authority with international jurisdiction for enforcement and the second refers to the court having local jurisdiction within that State. These provisions are applicable to recognition, via Article 21, paragraph 3, BR II, as well as to enforcement. The intention is to make matters easier for the European citizen, who will know from the beginning which court is to be seised.

Paragraph 1 refers to a list of authorities having international jurisdiction. ‘An application for a declaration of enforceability shall be submitted to the court appearing in the list notified by each Member State to the Commission pursuant to Article 68’ (Article 29, paragraph 1, BR II). Every Member State has appointed a particular court or group of courts where applications for recognition and enforcement can be lodged. In the Netherlands such a request can be lodged before the presiding Judge of any District Court.

Paragraph 2 provides that jurisdiction will lie with the local court of the place of the habitual residence of the person against whom enforcement is sought or of the place of habitual residence of any child to whom the application relates. It was noted, however, that there could be situations in which neither the person against whom enforcement was sought nor the child was habitually resident in a Member State. In such cases jurisdiction lies with the local court of the place of enforcement.

Article 30 of the Brussels II Regulation

Procedure for making an application and filing documents [Article 30 BR II]

Article 30 BR II and other provisions of Section 2 of Chapter III of the Brussels II Regulation govern the various aspects of the procedure to be followed for enforcement of judgments. The regulation is based on a procedure at the request of a party which will be the same in all Member States. It is fast and simple.

Article 30 BR II deals with the action to be taken by the applicant. ‘The procedure for making the application shall be governed by the law of the Member State of enforcement’ (Article 30, paragraph 1, BR II). This means that national legislation must be consulted for the information to appear in the application, the number of copies to be submitted to the court, the authority with which they are to be deposited, the language in which they are to be drawn up and also whether or not a lawyer or any other representative or agent needs to be involved. In the Netherlands all court documents must be translated in Dutch by an official translator, unless it concerns small messages which content is at once clear. An exception is made for documents in proceedings before a court in the province of Friesland. These documents may be drawn up in Frisian. At the District Court, Court of Appeal or the Supreme Court a party must be represented by a solicitor.

‘The applicant must give an address for service within the area of jurisdiction of the court applied to. However, if the law of the Member State of enforcement does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem’ (Article 30 (2) BR II 2003). This provision is of interest both as to the notice of the judgment to the applicant (Article 32 BR II) and the appeal against the judgment granting exequatur, which will be contradictory (Article 33 BR II).

Finally, paragraph 3 of Article 30 BR II requires that the documents referred to in Article 37 and Article 39 BR II be attached to the application. It concerns a copy of the judgment which satisfies the conditions necessary to establish its authenticity and the certificate referred to in Article 39, which is issued by the court of the Member State of origin, which has also given the judgment.

To begin with, paragraph 1 of Article 37 BR II refers to the documents which must be produced in any event by a party seeking or contesting recognition or applying for enforcement of a judgment. All enforcement treaties require a copy of the judgment which satisfies the conditions necessary to establish its authenticity in accordance with the locus regit actum rule, that is to say the law of the place in which the judgment was given. Where appropriate, a document must also be produced showing that the applicant is in receipt of legal aid in the State of origin (Borras (1998) C 221/57).

In addition, in the case of a judgment given in default (non-appearance of the defendant) of the court of the Member State of origin, the party seeking recognition or applying for a declaration of enforceability shall produce the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document or any document indicating that the defendant has accepted the judgment unequivocally. Paragraph 2 of Article 37 BR II refers to the documents which must be produced in the case of a judgment given in default and it is logical that it confines itself to cases in which recognition or enforcement is being sought because, precisely in cases of non-recognition it is normal that no such documents exist, as a judgment given in default is concerned. In cases of non-recognition (see Article 22 and Article 23 BR II, proof must be provided in the required form that the written application or a similar document was notified or, in the case of a judgment in divorce, legal separation or marriage annulment proceedings, that the respondent has unequivocally accepted the content of the judgment (Borras (1998) C 221/58).

If the documents specified in Article 37, paragraph 1, under (b), BR II – i.e. the certificate referred to in Article 39 BR II - or Article 37, paragraph 2, BR II – i.e. documents in case of a judgment given in default - are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production (Article 38, paragraph 1, BR II). In order to facilitate attainment of its objective, this provision allows the court to specify a time for the production of documents, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production (e.g. where documents have been destroyed). This possibility is allowed only for documents specified in Article 37, paragraph 1, under b) and (paragraph 2, BR II, and thus not for a copy of the judgment itself. This provision must be seen in conjunction with the provision in Article 30 BR II regarding the consequences if the application for exequatur is not supported by the documents required in earlier Articles. If, despite the mechanisms put in place, the documents presented were insufficient and the court did not succeed in obtaining the information desired, it could declare the application inadmissible.

If the court so requires, a translation of such documents shall be furnished. The translation shall be certified by a person qualified to do so in one of the Member States (Article 38, paragraph 2, BR II). In line with the simplification aimed at in the Brussels II Regulation, a translation will be necessary only if the court so requires. In addition, the translation can be certified by a person qualified to do so in any of the Member States and not necessarily in the State of origin or the State in which enforcement is sought. As mentioned before, Dutch Law orders that the language of the courts in the Netherlands is Dutch. Accordingly, the initial summons or application initiating proceedings must be drawn up in that language, just as all other documents and papers, even evidence, that is brought before the court.

In addition to the documents required under Article 37 BR II, the party applying for enforcement must also produce documents which establish that, according to the law of the Member State of origin, the judgment is enforceable and has been served. Therefore it is necessary to attach to the application a certificate as referred to in Article 39 BR II. The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility). The request to issue such a certificate can also be done separately after the legal proceeding at that court has ended.

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 37 and Article 38 BR II or in respect of a document appointing a representative ad litem in the proceedings for obtaining exequatur (Article 52 BR II).

Article 31 of the Brussels II Regulation

Decision of the court at first instance [Article 31 BR II]

This provision establishes the unilateral, ex parte, nature of the exequatur procedure, in which the person against whom enforcement is sought will not be entitled to make any submissions on the application, even in exceptional cases, since such submissions would systematically change the procedure from a unilateral into a contradictory one. The rights of defence are respected by allowing the person against whom enforcement is sought to appeal against the decision granting enforcement.

The court must give its decision 'without delay', but no time limit is set since such a limit does not exist in judicial practice and no sanction would be possible if it were not met. Since the general rule is the grant of exequatur on the basis of the mutual confidence created by the assumption that all courts within the European Union will have applied the Brussels II Regulation correctly, the procedure in this instance remains unilateral and rapid given that there is provision for appeal in the later Articles of the Regulation in cases in which there are problems.

‘The application may be refused only for one of the reasons specified in Articles 22, 23 and 24’ (Article 31, paragraph 1, BR II). ‘Under no circumstances may a judgment be reviewed as to its substance’ (Article 31, paragraph 2, BR II). Therefore the court may rule only on enforcement and may not at this stage review custody measures.

Except where the procedure concerns a decision certified pursuant to Articles 11(8) and 40 to 42 of the Brussels II Regulation, any interested party can apply for non-recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand. Article 31, paragraph 1, BR II, in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for non-recognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make such submissions (ECJ 11 July 2008 'Rinau', Case C-195/08 PPU).

Article 32 of the Brussels II Regulation

Notice of the court’s decision [Article 32 BR II]

This Article provides that the decision of the requested court will be notified in accordance with the law of the Member State in which enforcement is sought. It illustrates the importance of an address for service or appointment of a representative ad litem (see Article 30 BR II 2003) and has implications for the lodging of appeals referred to in the Articles that follow (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

Article 33 of the Brussels II Regulation

Appeal against the court’s decision [Article 33 BR II]

Where the exequatur procedure at first instance is one-sided, in the sense that only the applicant makes a request, to which the judgment and certificate of the court of the Member State of origin are added, the procedure of appeal against this decision involves both parties. The decision on the application for a declaration of enforceability may be appealed against by either party’ (Article 33, paragraph 1, BR II). ‘The appeal shall be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68’ (Article 33, paragraph 2, BR II). In the Netherlands this is the Court of Appeal in whose resort the District Court that gave a decision at fist instance is located. ‘The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters’ (Article 33, paragraph 3, BR II).

‘If the appeal is brought by the applicant for a declaration of enforceability, the party against whom enforcement is sought shall be summoned to appear before the appellate court. If such person fails to appear, the provisions of Article 18 shall apply’ (Article 33, paragraph 4, BR II). ‘An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. No extension of time may be granted on account of distance’ (Article 33, paragraph 5, BR II).

Initially there were two separate provisions: one concerning the possibility to appeal against a judgment which authorised the requested enforcement (Art. 26 BC, later Art. 27 BR II 2000) and one regarding the possibility of appeal by the applicant when enforcement was refused (Art. 27 BC, later Art. 28 BR II 2000). This changed already under The Brussels II Regulation 2000, when the two provisions were put together in Article 26 BR II 2000. As of then the decision on the application for a declaration of enforceability may be appealed against by either party. The appeal has to be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68 BR II. Unlike the application procedure to give a judgment to authorise the enforcement of another judgment from a different Member State, which procedure is unilateral, in the sense that only the applicant is involved, and not the person against whom enforcement is sought, the appeal itself is always dealt with in accordance with the rules governing procedure in contradictory matters. This topic needs to be taken into account particularly with regard to the language differences, which must not, under any circumstances, equate 'contradictory' with 'contentious'. In some Member States the term means contentious as well as contradictory, whereas such is not the case in others. Hence, although the procedure must always be contradictory, whether or not it is also contentious will depend on internal law, in the same way as the law of the forum determines the procedure (lex fori regit processum).

But also after the two provisions were put together in a new Article 26, there still remained some differences between an appeal against a judgment which authorised the enforcement and an appeal against a judgement which refused the enforcement. Since Article 33 of the Brussels II Regulation corresponds to Article 26 of Council Regulation (EC) No 1347/2000 (Brussels II Regulation 2000), these differences are still here today.

If the appeal is brought by the applicant for a declaration of enforceability, thus in case of an appeal against a judgment to refuse the requested enforcement, the party against whom enforcement is sought, shall be summoned to appear before the appellate court. If such person fails to appear, the court with jurisdiction has to examine of its own motion if it has jurisdiction, this in conformity with Article 18 of the Brussels II Regulation, whether the party against whom enforcement is sought, resides in a Member State or in a non-member State. The court with jurisdiction shall stay the proceedings as long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

Although the appeal is governed by the rules of procedure in contradictory matters of the Member State of the court of appeal, there is no time limit for appeal when the applicant appeals against a judgement to refuse the enforcement of the judgment from the court of another Member State. The reason is that, if the applicant's application has been rejected, he has the right to appeal when he thinks fit and when, for example, he is able to assemble the relevant documentation. Once again, the objective of the Regulation denotes the difference in the procedure to be followed: the normal consequence is for the judgment to be enforced and, accordingly, after the first decision, taken rapidly by the unilateral procedure, every opportunity must be given for this aim to be achieved.

If the appeal is brought by the party against whom enforcement is sought, thus in case of an appeal against a judgment which authorised the enforceability, the appeal must be lodged within one month of service thereof. If the party against whom enforcement is sought, is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or at his residence. No extension of time may be granted on account of distance.

Article 34 of the Brussels II Regulation

Contesting the decision of the Court of Appeal [Article 34 BR II]

The only means of contesting a judgment given on appeal is in cassation or by any other top-level appeal procedure in Member States which do not have a cassation system. The objective of limiting the avenues of appeal in this way is to avoid unnecessary appeals which could be unfounded delaying manoeuvres. The ultimate purpose is to safeguard the objective of the Regulation which is to facilitate free movement of judgments. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999).

Article 35 of the Brussels II Regulation

Stay of proceedings [Article 35 BR II]

In some cases it may happen that the judgment in the court of origin is enforceable even though an appeal has been initiated or the time limit for appeal has not come to an end. This is for instance the case in the Netherlands, where judgments are usually immediately enforceable, whereas an appeal against it has no effect on this enforceability. In such circumstances, it is desirable to avoid complicating the situation which would result from the grant of exequatur of the judgment. Article 35 BR II makes it possible to stay proceedings. ‘The court with which the appeal is lodged under Articles 33 or 34 BR II may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin, or if the time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged’ (Article 35, paragraph 1, BR II). Paragraph 2 deals with the special circumstances in Ireland and the United Kingdom. ‘Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1’ (Article 35, paragraph 2, BR II). This provision therefore provides that the court with which the appeal is lodged may stay the proceedings if an ordinary appeal has been lodged against the decision in the Member State of origin or if the time for such appeal has not yet expired, but is not obliged to do so. The stay of proceedings can only take place on the application of the appellant (Borras (1998) C 221/56)

For stay of proceedings in case of recognition, see Article 27 BR II. (COM/99/0220 final - CNS 99/0110 / Official Journal C 247 E , 31/08/1999),

Article 36 of the Brussels II Regulation

Partial enforfement [Article 36 BR II]

Article 36 BR II deals with two separate issues. Paragraph 1 refers to the situation where a judgment has been given in respect of several matters and enforcement cannot be authorised for all of them. In that case the court will authorise enforcement for one or more of them (Article 36, paragraph 1, BR II). The second hypothesis, in paragraph 2, is that the applicant may request only partial enforcement of a judgment (Borras (1998) C 221/57). No other party has this competence.

Common provisions for recognition and enforcement

Section 5 and 6 of Chapter III of the Brussels II Regulation enclose a few provisions which in general apply to recognition and enforcement that is sought under this Regulation. It has to be noticed that the rules of the Brussels II Regulation for recognition and enforcement of judgments in another Member State apply as well to other enforceable documents issued in a Member State of origin, like formally drawn up or registered authentic instruments and even agreements between the parties, whether or not laid down in a notarial deed. This, however, is only so if that other instrument or the agreement itself is enforceable in the Member State of origin, therefore in the State where it is made or drawn up. If that's the case, such enforceable instrument or agreement has to be treated by the courts of the Member State where enforcement is sought, as if it was an enforceable judgment of the courts of the Member State of origin, even when the national law of the Member State of enforcement does not know such instrument or agreement or is not familiair with the fact that it provides a title for enforcement as well.

Article 46 of the Brussels II Regulation

Recognition and enforcement of authentic instruments and agreements between parties [Article 46 BR II]

Section 5 of Chapter III of the Brussels II Regulation contains a rule with respect to the status of authentic instruments and agreements. It entails only one provision. ‘Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments’ (Article 46 BR II).

Section 6 (Chapter III) Other provisions

Section 6 of Chapter III makes clear that the enforcement procedure itself, as it is to be carried out in another Member State, is governed by the law of that Member State. The declaration of enforceability cannot lead to measures of execution that are common in the Member State of origin, but unkown in the Member State of enforcement. Nevertheless, Section 6 opens the possibility for the Member State of enforcement to make some practical arrangements for organising the exercise of rights of access, if no or not sufficient necessary arrangements have been made in the judgment delivered by the courts of the Member State of origin. Furthermore, it provides rules for the determination of the amount of costs and expenses of proceedings under the Brussels II Regulation and for the enforcement of any order concerning such costs and expenses, as well as for legal aid, securities, bonds and deposits and legalisation or other similar formalities.

Article 47 of the Brussels II Regulation

Enforcement procedure [Article 47 BR II]

The Brussels II Regulation does not touch on the enforcement procedure, which is to be carried out under the law of the Member State of enforcement. So when, for instance, the seised court of a Member State has issued a court order in in which an enforceable foreign judgment is declared enforceable within the territory of the Netherlands, the execution thereof will take place according to national rules for seizures, foreclosures and sales under execution and, if necessary, with regard to bankruptcies. Only persons who are normally authorised within the Member State of enforcement to proceed to such measures are allowed to perform them. The Brussels II Regulation has no effect on such national enforcement measures.

The second subparagraph of Article 47(2) of the Brussels II Regulation (No 2201/2003) must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child. Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment (ECJ 1 July 2010 'Doris Povse v Mauro Alpago', Case C-211/10 PPU).

Article 48 of the Brussels II Regulation

Practical arrangements for the exercise of rights of access [Article 48 BR II]

A distinction must be drawn between decisions on attributing rights of access and decisions on organizing their exercise. In the latter case the courts of the Member State of enforcement should have some leeway to make the necessary practical arrangements, to the extent that these are not foreseen in the original decision and that its essential elements are respected.

Costs, legal aid and court securities [Article 49 - 51 BR II]

The provisions of Chapter III of the Brussels II Regulation, with the exception of Section 4, shall also apply to the determination of the amount of costs and expenses of proceedings under this Regulation and to the enforcement of any order concerning such costs and expenses (Article 49 BR II).

If the applicant has benefited in the Member State of origin from complete or partial legal aid or exemption from costs or expenses he will also be entitled, in the Member State in which enforcement is sought, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the State addressed (Article 50 BR II). Thus when applying for exequatur, a person is entitled to legal aid in the Member State of enforcement, according to the rules of that State, if he or she was so entitled in his or her Member State of origin. Such a person may also be assisted by the central authorities, which shall have the role of informing and assisting holders of parental responsibility who seek the recognition and enforcement of a decision on parental responsibility in another Member State (Article 55, under (b), BR II). This possibility has been carried over from the Brussels II Regulation 2000. It applies also to decisions on parental responsibility, e.g. in matters of custody rights. There are, however, two exceptions where the Regulation dispenses with this procedure and where a decision is to be recognised and enforceable in other Member States without any procedure. The exceptions concern access rights (See Chapter VI) and the return of the child following abduction (See Chapter VII).

Article 51 BR II repeats the now well established principle that no security, bond or deposit, however described, shall be required of a party who in one Member State applies for recognition or enforcement of a judgment given in another Member State (cautio judicatum solvi), only on the grounds (a) that he or she is not habitually resident in the Member State in which enforcement is sought or (b) that he or she is either a foreign national or, where enforcement is sought in either the United Kingdom or Ireland, does not have his or her ‘domicile' in either of those Member States.