The Brussels II Regulation The jurisdiction of courts

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The Brussels II RegulationThe jurisdiction of
courts
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The Brussels II Regulation Jurisdiction in
matters of divorce, legal separation or marriage
annulment (matrimonial matters)

• The Regulation generally grounds the jurisdiction
  on these circumstances
• Habitual residence
• Nationality
• Domicile (UK and Ireland)
• The regulation does not use the term domicile
  as a general criterion, but in comparison with
  the Brussels I Regulation grounds the
  jurisdiction on habitual residence.
• The term habitual residence shall be
  interpreted autonomously , it can be understood
  as permanent and usual centre of interests of a
  person chosen by the person with the intention to
  live there permanently.

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The Brussels II Regulation Jurisdiction in
matrimonial matters

• In matrimonial matters the jurisdiction lies with
  the courts of the Member state
• In whose territory
• The spouses are habitually resident, or
• The spouses were last habitually resident,
  insofar one of them still resides there, or
• The respondent is habitually resident, or
• In the event of joint application, either of the
  spouses is habitually resident, or
• The applicant is habitually resident if he or she
  resided there for at least a year immediately
  before the application was made, or
• The applicant is habitually resident if he or she
  resided there at least six months immediately
  before the application was made and is either a
  national of the Member state in question or, in
  the case of UK or Ireland, has his or her
  domicile there.
• The last two possibilities a fight against
  the so-called forum shopping.

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The Brussels II Regulation Jurisdiction in
matrimonial matters

• b) Of the nationality of both spouses or, in the
  case of the United Kingdom and Ireland, of the
  domicile of both spouses.
• The given rules how to determine the jurisdiction
  may be used alternatively.
• Article 7 of the Regulation so-called Residual
  jurisdiction in case no court of Member state
  had jurisdiction pursuant all the previously
  given rules, the jurisdiction shall be determined
  in each Member state by its own national law.

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The Brussels II Regulation Jurisdiction in the
matters of parental responsibility

• The rules of jurisdiction in the matters of
  parental responsibility is more complicated than
  in matrimonial matters.
• Article 8 of the Regulation brings basic rule of
  the jurisdiction, articles 9 to 15 special legal
  regulation of jurisdiction of courts.

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The Brussels II Regulation Jurisdiction in the
matters of parental responsibility

• Basic rule article 8 the jurisdiction lies
  with the courts of that member state where the
  child is habitually resident in the moment the
  court is seized.
• Article 9 so-called continuing jurisdiction of
  the child's former residence regulates the
  jurisdiction when the child moves lawfully from
  one Member state to another, but the holder of
  access rights stays in the former state- in that
  case the jurisdiction of the former state is
  retained for the period of three months.

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The Brussels II Regulation Jurisdiction in the
matters of parental responsibility

• Article 10 jurisdiction in cases of child
  abduction the case of wrongful removal or
  retention of the child until the child requires
  the habitual residence in another Member state
  the jurisdiction remains in the former state
  (where the child was habitually resident before
  the abduction). The article 19 sets down some
  other conditions.

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The Brussels II Regulation Jurisdiction in the
matters of parental responsibility

• Article 12 prorogation of jurisdiction-
  continuance of jurisdiction of the court which
  had jurisdiction in the matrimonial matters for
  the matters of parental responsibility as well,
  there has to be an acceptance of this rule of the
  holders of the parental responsibility.
• Article 13 jurisdiction based upon the child's
  presence where the habitual residence can not
  be established or the jurisdiction can not be
  determined the jurisdiction is based upon the
  child's presence.

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The Brussels II Regulation Jurisdiction in the
matters of parental responsibility

• Article 14 residual jurisdiction as well as
  in the matrimonial matters shall no court have
  jurisdiction upon the previous rules the
  jurisdiction may be determined upon the national
  law of the state.
• Article 15 transfer to a court better placed
  to hear the case the regulation brings
  possibility to change the jurisdiction of one
  court to another with which the child has
  particular connection, when it is in the best
  interests of the child (a lot of conditions in
  the Regulation).

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The Brussels II Regulation

• Recognition and enforcement of judgments

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The Brussels II Regulation- recognition and
enforcement

• Principally the same procedure as in Brussels I
  Regulation
• 3 steps required
• Recognition principle of automatic recognition
  with exceptions the reasons for declination of
  the judgment
• Exequatur proceeding- the declaration of the
  enforceability of the judgment
• Enforcement of the decision

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The Brussels II Regulation recognition of the
judgment

• The reasons for declination of the recognition of
  the judgment are divided according to two areas
  of application (matrimonial matters and matters
  of parental responsibility).
• No review of the substance of the judgment is
  allowed.
• The non-compliance with the rules of jurisdiction
  in the Regulation is not a reason for declination
  of the recognition.

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The Brussels II Regulation recognition of the
judgement

• The reasons for declination of the recognition of
  judgments in matrimonial matters
• Almost the same as in the Brussels I regulation
  (contrary to public policy, default of
  appearance, irreconcilable decisions)
• Article 25 expressly the differences of the
  national law in matrimonial matters can not be
  the reason for declination of the recognition of
  judgment.

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The Brussels II Regulation recognition of the
judgement

• The reasons for declination in the matters of
  parental responsibility
• Contrary to public policy taking into account the
  best interests of the child
• The child did not have opportunity to be heard
  (except the case of urgency)
• Infringement of any person's parental
  responsibility (the person did not have the
  opportunity to be heard)
• Default of appearance
• Irreconcilable decisions

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The Brussels II Regulation enforcement of
judgement

• The proceedings on declaration of enforceability
  again strictly formal procedure.
• Again appeal within one month period.
• The enforcement is regulated by the national law.

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The Brussels II Regulation special procedures

• Certain matters which fall under the scope of
  application of the Regulation are in need of
  quick enforcement --gt the Regulation contains two
  special quick procedures of enforcement
• 1)Enforceability of certain judgments concerning
  the rights of access and
• 2)Enforceability of certain judgments which
  require the return of the child

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The Brussels II Regulation special procedures

• The rights of access (article 41)
• The rights of access granted in an enforceable
  judgment given in a Member State shall be
  recognised and enforceable in another Member
  State without the need for a declaration of
  enforceability and without any possibility of
  opposing its recognition if the judgment has been
  certified in the Member State of origin in
  accordance with the condition given in the
  Brussels II Regulation.

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The Brussels II Regulation special procedures

• The judge of the state of origin issues
  certificate, if
• (a) where the judgment was given in default, the
  person defaulting was 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 defense, or, the person has been
  served with the document but not in compliance
  with these conditions, it is nevertheless
  established that he or she accepted the decision
  unequivocally
• (b) all parties concerned were given an
  opportunity to be heard
• and
• (c) the child was given an opportunity to be
  heard, unless a hearing was considered
  inappropriate having regard to his or her age or
  degree of maturity.
• The certificate shall be completed in the
  language of the judgment.
• The certificate shall be issued ex officio
  whether there is cross-border situation.

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The Brussels II Regulation special procedures

• Return of the child - Article 42
• 1. The return of a child entailed by an
  enforceable judgment given in a Member State
  shall be recognised and enforceable in another
  Member State without the need for a declaration
  of enforceability and without any possibility of
  opposing its recognition if the judgment has been
  certified in the Member State of origin in
  accordance with conditions of this Regulation.
• The judge of origin who delivered the judgment
  shall issue the certificate only if
• (a) the child was given an opportunity to be
  heard, unless a hearing was considered
  inappropriate having regard to his or her age or
  degree of maturity
• (b) the parties were given an opportunity to be
  heard and
• (c) the court has taken into account in issuing
  its judgment the reasons for and evidence
  underlying the order issued pursuant to Article
  13 of the 1980 Hague Convention.

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The Brussels II Regulation special procedures

• In the event that the court or any other
  authority takes measures to ensure the protection
  of the child after its return to the State of
  habitual residence, the certificate shall contain
  details of such measures.
• The judge of origin issues the certificate of his
  own motion.
• The certificate shall be completed in the
  language of the judgment.