The Brussels II Regulation The jurisdiction of courts

1. The Brussels II RegulationThe jurisdiction of courts

2. 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.“

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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).

10. The Brussels II Regulation Recognition and enforcement of judgments

11. 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

12. 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.

13. 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.

14. 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

15. 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.

16. 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

17. 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.

18. 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.

19. 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.

20. 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.