CERTAIN QUESTIONS OF THE BRUSSELS-IIa REGULATION (2201/2003/EC) - Jurisdiction system in divorce matters - - Jurisdiction and applicable law in the proceedings concerning the child property Bucharest, 23 May 2014 Dr. Tibor Szcs Hungarian National Chamber of Civil Law Notaries Office of Legal Affairs H-1026 Budapest Pasarti t 16. H-1535 Budapest Pf. 836 +36 1 489 4880 [email protected] THE BRUSSELS-IIA REGULATION AMONG THE COMMUNITY INSTRUMENTS (in the field of judicial cooperation in civil matters ) JURISDICTION RECOGNITION AND ENFORCEMENT OF JUDGMENTS civil and commercial matters: Brussels Convention 1968 Brussels I (44/2001(EC) Brussels Ia (1215/2012/EU) marriage and parental responsibility matters: Brussels II (1347/2000/EC)
Brussels IIa (2201/2003/EC) Brussels-type regulations CONFLICT OF LAWS contractual obligations: Rome Convention 1980 Rome I (593/2008/EC) non-contractual obligations: Rome II (864/2007/EC) divorce matters: Rome III (1259/2010/EU) Rome-type regulations several matters: (regulating both procedure questions (jurisdictions, recognition & enforcement) and conflict of laws) Complex regulations Insolvency proceedings regulation (1346/2000/EC) Maintenance obligations regulation (4/2009/EU) Succession regulation (650/2012/EU) Marriage property regimes regulation (draft) Common rules for certain cross border issues of matrimonial and parental responsibility matters Jurisdiction matrimonial matters
Brussels-IIa Art. 3-7 Law applicable Rome-III Art. 5-16 Recognition and enforcement of decisions Brussels-IIa Art. 21, 22, 24-27, 37-39 divorce and legal separation matters only! (NOT applicable for questions relating marriage annulment, existence of marriage) matters of parental responsibility Brussels-IIa Art. 8-15 Hague Convention of 1996
Chapter III (Art. 15-22) Brussels-IIa Art. 21, 23, 24-45 Meaning of court This Regulation shall apply, whatever the nature of the court or tribunal, .. (Art. 1.) For the purposes of this Regulation: 1. the term court' shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1; ... 4. the term judgment' shall mean a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision; (Art. 2.) The legal term court covers also - civil notaries - administrative authorities as far as they are acting in family matters covered by this Regulation. Not relevant: Type of proceeding (judicial litigious, judicial non-litigious, notarial, administrative, etc.) Type of decision (judgment, decree, order etc.) Examples: a) matrimonial matters: - competence of civil law notaries for divorce: Romania, Latvia - competence of administrative authorities for divorce: vital statistics office in Estonia b) parental responsibility matters: competence of guardianship authorities for certain decisions concerning legal representation of the child, administration of the childs property: Hungary (e.g. formal approval of certain legal declarations on behalf of the child by the guardianship authority)
Jurisdiction in matrimonial matters Meaning of the term matrimonial matters - divorce - legal separation - marriage annulment JURISDICTION GROUNDS: Art. 3. (1) a) - habitual residence of the spouses; - last habitual residence of the spouses, insofar as one of them still resides there; - habitual residence of the respondent - the habitual residence of any of the spouses in the event of a joint application; - habitual residence of the applicant, if he/she resided there for at least a year immediately before the application was made; - habitual residence of the applicant, if he/she resided there for at least six months immediately before the application was made and he/she is a national of the Member State in question (in the case of UK/IE has his/her domicile' there); Art. 3. (1) b) - nationality of both spouses (in the case of UK/IE the domicile' of both spouses). alternative jurisdictional criteria
No hierarchy! Jurisdiction based on nationality of both spouses (Art. 3. (1) b)) Question concerning dual nationals: - both nationalities are relevant - no examination, which one is the effective nationality The courts must take into account the fact that the spouses also hold the nationality of the Member State of origin and that, therefore, the courts of the latter could have had jurisdiction to hear the case. ECJ Case Nr. C168/08 (Hadadi-case)168/08 (Hadadi-case) Conflicts of jurisdictions Positive conflict: if more than one MS have jurisdiction according to Art. 3. (alternative jurisdiction criteria, without hierarchy) Coordination: lis pendens rule (Art. 19) Priority of the proceeding of the court first seised Negative conflict: if no MS has jurisdiction The jurisdiction shall be determined, in each Member State, by the national laws (lex fori) residual jurisdiction (Art. 7) Priority of the jurisdiction system of the Regulation: National jurisdiction rules may be applied only if no other MS has jurisdiction according to Art. 3 of the Regulation. .in divorce proceedings,. the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation. ECJ Case Nr. C168/08 (Hadadi-case)68/07. (Sundelind-case) Scope of the Regulation in the field of parental responsibility matters Art. 1. This Regulation shall apply, relating to: (b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
Definition The term parental responsibility' shall mean - 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 shall include rights of custody and rights of access (Art. 2. (7)) Legal matters Covered by the Regulation in particular: (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; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property. (Art. 1 (2)) NOT covered by the Regulation (a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
(c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) measures taken as a result of criminal offences committed by children. (Art. 1 (3)) Types of the proceedings concerning parental responsibility covered by Brussels-IIa All kind of legal proceedings (judicial litigious, judicial non-litigious, notarial, administrative, etc.) proceedings Regulating the responsibility as a whole over a child Regulating certain singular aspects of the responsibility only e.g. e.g. - which person shall be vested the parental responsibility with; - termination of the parental responsibility of one of the parents. - appointment of a guardian for the child
- to regulate the access rights; - to solve the dispute among the parents in particular questions; - to approve a legal declaration on behalf of the child by a court/authority Jurisdiction in parental responsibility matters General jurisdiction rule (Art. 8) determined by the habitual residence of the child Special jurisdiction rules (Art. 9-13) - Jurisdiction in case of the lawful moving of the child to another MS (Art. 9) - Jurisdiction in case of child abduction (Art. 10-11) - Prorogation of the jurisdiction (Art. 12) (in case of a matrimonial proceeding only) Uniform jurisdiction rules of the Regulation - Jurisdiction based on the child's (simple) presence (Art. 13) (Where a child's habitual residence cannot be established; refugee children) Residual jurisdiction (Art. 14.) if no MS has jurisdiction according to Art. 8-13 The jurisdiction shall be determined, in each Member State, by the national laws (lex fori) Jurisdiction according to the national laws of the MS
Examination of the habitual residence: case-law of ECJ C-523/07 (A-case) The habitual residence of the child .. must be must be established on the basis of all the circumstances specific to each individual case. In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the familys move to that State, the childs nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. C-497/10 (case Mercredi / Chaffe) such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. In case of an infant child .. with particular reference to the childs age, the mothers geographic and family origins and the family and social connections of the mother must be taken into consideration. A special aspect of the parental responsibility: approval of the legal declaration of the legal representative on behalf of the child by a judicial/administrative authority cross-border issues law applicable jurisdiction Which law governs the necessity and the conditions of the approval ? In which MS shall the applicant (the legal representative of the child) initiate a judicial/administrative proceeding for approval ? Hague Convention 1996:
The exercise of parental responsibility is governed by the law of the State of the childs habitual residence. (Article 17) examples: - legal transactions concerning immovable property of the child - succession matters: declaration on refusal of the inheritance; agreement on sharing the succession property recognition of the claim of a creditor Brussels-IIa The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. (Art. 8) Thank you for your attention! V mulumesc pentru atenie!umesc pentru atenumesc pentru atenie!ie! ! ! ! !! ! ! ! ! ! Ksznm a figyelmet!
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