Comment on
EC Regulation
Brussels II 2003

• Scope of application of the Brussels II Regulation 2003
  • History of the Brussels II Regulation 2003
  • Geographical scope of the Brussels II Regulation 2003
  • Material scope of the Brussels II Regulation [Art. 1]
  • Type of proceedings covered by the Brussels II Regulation [Art. 1(1)]
  • Subject-matters covered by and excluded from the Brussels II Regulation [Art. 1(2)(3)]
    • Breaking the marriage link through a divorce, legal separation or marriage annulment by judgment [Art. 1(1)(a)]
    • Attribution, exercise, delegation, restriction or termination of parental responsibility [Art. 1(1) and (2)]
    • Protective measures concerning the property of the child provided their aim is to protect the child [Art. 1 (2) (c) and (e)]
  • Transitional law [Art. 64]
  • Cooperation between central authorities and between
    courts [Art. 53-58]
  • Definitions used in the Regulation [Art. 2]

---

• Jurisdiction over matters of divorce, legal separation and marriage annulment
  • Basic system for jurisdiction in matters of divorce, legal separation or marriage annulment [Sec. 1]
  • General jurisdiction [Art. 3]
    • Grounds related to habitual residence [Art. 3(1) (a)]
    • Grounds related to nationality [Art. 3 (1)(b) and (2)]
  • Jurisdiction with regard to counterclaims [Art. 4]
  • Conversion of legal separation into divorce [Art. 5]
  • Exclusive nature of jurisdiction under Articles 3, 4 and 5 [Art. 6]
  • Residual jurisdiction [Art. 7]




---

• Jurisdiction over matters of parental responsibility
  • Basic system for jurisdiction over matters of parental responsibility [Sec. 2]
  • General jurisdiction in matters of parental responsibility [Art. 8]
  • Continuing jurisdiction of the child's former habitual residence [Art. 9]
  • Prorogation of jurisdiction [Art. 12]
    • Derived jurisdiction because of a connection with a matrimonial proceeding [Art. 12(1)(2)]
    • Derived jurisdiction because the child has a substantial connection with that Member State who’s court is seised [Art. 12(3)]
  • Jurisdiction based on the child's presence [Art. 13]
  • Residual jurisdiction [Art. 14]
  • Transfer to a court better placed to hear the case [Art. 15]
  • Cooperation between Member States in case of the placement of a child in another Member State [Art. 56]

---

• Jurisdiction over matters of child abduction
  • The rules on child abduction [Art. 10, 11, 40, 42, 55]
  • Jurisdiction in cases of child abduction [Art. 10]
  • Return of the child [Art. 11]
    • The requested court decides that the child shall not return [Art. 11(6)(7)(8)]
    • The court of origin rules on all rights of custody and access and/or the return of the child [Art. 11(7) and 42]

---

• Common provisions for determining jurisdiction
  • Seizing of a court [Art. 16]
  • Examination of its own motion as to jurisdiction [Art. 17]
  • Examination as to admissibility [Art. 18]
  • Lis pendens and dependent actions [Art. 19]
  • Provisional, including protective, measures [Art. 20]

---

• Recognition and enforcement
  • Recognition and enforcement ('exequatur procedure') [Sec. 1]
  • Recognition of a foreign judgment [Art. 21]
    • Direct recognition of a judgment by the authorities and courts of another Member State [Art. 21(1)(2)]
    • Parties may contest the recognition or the refusal of a recognition [Art. 21(3)]
    • Recognition of a judgment raised as an incidental question [Art. 21(4)]
  • Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment [Art. 22]
    • Recognition is contrary to public policy [Art. 22(a)]
    • Foreign judgment is given in default of appearance [Art. 22(b)]
    • Irreconcilability with another judgment between the same parties [Art. 22(c)(d)]
  • Grounds of non-recognition for judgments relating to parental responsibility [Art. 23]
    • Recognition of foreign judgment is contrary to public policy [Art. 23(a)]
    • Child or other person has not been given an opportunity to be heard [Art. 23(b)(d)]
    • Foreign judgment given in default of appearance [Art. 23(c)]
    • Irreconcilability with another judgment [Art. 23(e)(f)]
    • Procedure of Article 56 has not been complied with [Art. 23(g)]
  • Prohibition of review of jurisdiction of the court of origin [Art. 24]
  • No refusal on the ground of differences in applicable law [Art. 25]
  • Non-review as to substance [Art. 26]
  • Stay of proceedings [Art. 27]
  • Enforcement ('exequatur procedure') [Sec. 2]
  • Enforceability of judgments on the exercise of parental responsibility [Art. 28]
  • Exequatur procedure [Artt. 28 - 36]
  • Appeal against the decision of the court of the Member State where enforcement is sought [Artt. 33 - 35]
  • Jurisdiction of local courts over applications to obtain a declaration of enforceability [Art. 29]
  • Procedure for making an application and filing documents [Art. 30]
  • Decision of the court at first instance [Art. 31]
  • Notice of the court’s decision [Art. 32]
  • Appeal against the court’s decision [Art. 33]
  • Contesting the decision of the Court of Appeal [Art. 34]
  • Stay of proceedings [Art. 35]
  • Partial enforcement [Art. 36]
  • Required documents common for Sections 1 and 2 [Sec. 3]
    • To be provided documents [Art. 37]
    • Absence of required documents [Art. 38]
    • Certificate concerning judgments in matrimonial matters and certificate concerning judgments on parental responsibility [Art. 39]



---

• Enforcing a right of access to and the return of a child
  • Scope: right of access and return of the child [Art. 40]
  • Right of access [Art. 41]
    • Hearing of the child [Artt. 23, 41, 42]
  • Enforcement of judgments ordering the return of the child [Art. 42]
    • Hearing of the child [Artt. 23, 41, 42]
    • New removal of the child to another Member State [Art. 42]
  • Rectification of the certificate [Art. 43]
  • Effects of the certificate [Art. 44]
  • Documents to be produced for obtaining a certificate [Art. 45]
  • Recognition and enforcement of authentic instruments and agreements between parties [Sec. 5 (Art. 46)]

---

• Common provisions for recognition and enforcement
  • Recognition and enforcement of authentic instruments and agreements between parties [Sec. 5 (Art. 46)]
  • Other provisions [Sec. 6]
    • Enforcement procedure [Art. 47]
    • Practical arrangements for the exercise of rights of access [Art. 48]
    • Costs, legal aid and court securities [Artt. 49 – 51]

---

• Cooperation between Central Authorities in matters of parental responsibility
  • Designation [Art. 53]
  • General functions [Art. 54]
  • Cooperation on cases specific to parental responsibility [Art. 55]
  • Placement of a child in another Member State [Art. 56]
  • Working method [Art. 57]
  • Meetings [Art. 58]




---

• Relations with other Conventions and instruments
  • Relation with other instruments [Art. 59]
  • Relations with certain multilateral conventions [Art. 60]
  • Relation with the 1996 Hague Convention [Art. 61]
  • Scope of effects of existing Conventions [Art. 62]
  • Treaties with the Holy See [Art. 63]
  • Transitional provisions [Art. 64]

---

 

© All rights reserved

Disclaimer