THE EU COMMISSION'S PROPOSAL TO REVISE THE BRUSSELS IIa REGULATION: SHORTCOMINGS OF THE “OVERRIDING RULE”

Abstract

As the procedure for the revision of the Brussels IIa Regulation is currently pending in the European Union, this paper focuses on the two issues which are correlated through the so-called “overriding rule” mechanism. The first problem concerns the proceeding on the return of the wrongfully removed or retained child involving two EU Member States – the State of refuge and the State where the child was habitually resident immediately before the abduction. The second one tackles the proceeding, currently regulated in the Brussels IIa, on the rights of custody (parental responsibility) when the return of the child was refused in the EU State on the grounds of Art. 13 of the Hague Child Abduction Convention. The proposals for the revision of the Brussels IIa Regulation heavily involve these issues. In that respect, the author indicates certain shortcomings and inconsistencies of the amendments proposed by the European Commission in the Proposal to Revise the Brussels IIa Regulation (2016) and the latest compromise solutions suggested by the Presidency to the Council in the General Approach to the Recast of Brussels IIa (2018). At the same time, the paper suggests two possible ways in which the balance between the principle of mutual trust between the EU Member States and the principle of the child's best interest could be better balanced. From the perspective of Private International Law of the Republic of Serbia, the revision of the Brussels IIa Regulation is important in view of Serbia’s candidate status for EU membership and the need to keep an eye on changes to the secondary EU legislation.