The Brussels II Regulation

The jurisdiction of courts

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:
a) Habitual residence
b) Nationality
c) 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.“
 The Brussels II Regulation –
Jurisdiction in matrimonial matters
 In matrimonial matters the jurisdiction lies with the courts of the
Member state:
a) 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.
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.
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.
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.
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.
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.
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).
The Brussels II Regulation

Recognition and enforcement of

judgments
The Brussels II Regulation-
recognition and enforcement
 Principally the same procedure as in
Brussels I Regulation:
 3 steps required:
1. Recognition – principle of automatic
recognition with exceptions – the reasons
for declination of the judgment
2. Exequatur proceeding- the declaration of
the enforceability of the judgment
3. Enforcement of the decision
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.
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.
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
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.
The Brussels II Regulation –
special procedures
 Certain matters which fall under the scope of
application of the Regulation are in need of
quick enforcement --> 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
 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.
 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.
The Brussels II Regulation –
special procedures
 Return of the child - Article 42
 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.
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.