Brussels IIa Regulation Research Articles

The EU Divorce Jurisdiction of Brussels IIB Regulation and Its Implementation in Austria

To accommodate the needs of its citizens in building relationships across borders, the EU has provided several regulations. Since its first establishment in 2000, the EU regulations on divorce and legal separation jurisdiction have been amended twice. There are some significant changes in this jurisdiction, from its original regulation in 2000 to its amendment version in 2003 up to the current version that was established in 2019. This paper tries to investigate the implementation of the current ruling EU instrument in Austria through three approaches by evaluating: 1) the infringement cases, 2) preliminary ruling proceedings, and 3) further official actions conducted by Austria. It can be concluded that Austria has never been accused of any infringements of the three regulations. The court judgments of the two proceedings of preliminary ruling submitted by Austrian courts concerning Brussels IIA Regulation are also in accordance with the regulated law of EC No 2201/2003. The establishment of an introductory decree on the summary and legal explanations of the Council Regulation EU No 1111/2019 by Austria is a very good practice that can be adopted by other EU member states. Therefore, this paper suggests that Austria has effectively implemented the 2019 EU instrument.

The Brussels IIb Regulation – Most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction

The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.

Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation

Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation

Przepisy Kodeksu postępowania cywilnego regulujące postępowanie w sprawach dotyczących uprowadzenia dziecka za granicę wobec zmiany rozporządzenia Bruksela IIa

On 1 August 2022, Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction which is a recast version of the Brussels IIa Regulation, will enter into force. One of the objectives of enacting Regulation 2019/1111 was to review the solutions for the return of a wrongfully abducted child. The subject of this article is the analysis of the provisions of the Code of Civil Procedure applicable in cases of international child abduction in the light of the assumptions of Regulation No 2019/1111. Its aim is to answer the question whether, and if so to what extent, the solutions adopted by the EU legislator require amending the provisions of the Code of Civil Procedure.

La libre circulación de resoluciones en la UE en el caso de la sustracción internacional de menores

El presente artículo aborda la regulación actual y futura del sector del reconocimiento y ejecución de resoluciones extranjeras en materia de sustracción internacional de menores en el ámbito de la Unión Europea. Materia específica que motivó la previsión de un régimen de eficacia extraterritorial de resoluciones judiciales distinguido – y privilegiado – al del régimen genérico de las resoluciones en materia de responsabilidad parental. Recientemente, el instrumento aplicable en la materia, el Reglamento 2201/2003 (Reglamento Bruselas II bis) ha sufrido un importante proceso de reforma que ha culminado con la aprobación de un nuevo Reglamento, el Reglamento 2019/1111. En este trabajo abordaremos el complejo entramado de fuentes en la materia, con la interacción tanto de fuentes de la UE como de Convenios internacionales, principalmente del Convenio de La Haya de 1980, analizando tanto el régimen actual como las modificaciones apuntadas. Con todo ello, se irán apuntando algunas de las tendencias actuales y futuras del tercer sector del Derecho Internacional privado en el proceso de construcción del espacio de libertad, seguridad y justicia de la UE.

Limits of jurisdiction for divorce under the Brussels IIa Regulation from the Czech perspective

Jurisdiction for divorce in a marriage with an international element is in the Czech Republic governed primarily by “the Brussels IIa Regulation”. There are, however, other legal sources on which Czech courts can base their jurisdiction. When a national court is seized with a cross-border divorce case, the first step is to establish or decline the jurisdiction. In purely intra-EU cases, the Brussels IIa Regulation is the only legal instrument that comes into play. If the case involves a third State, the jurisdiction can be based on rules contained in a specific bilateral international agreement or, the provision for residual jurisdiction in the Brussels IIa Regulation permitting, on the rules in the national legislation of private international law. Complex situations can occur, especially when the case presents several international elements, some related to EU Member State(s) and the others related to the third State(s). The jurisprudence developed by the CJEU to interpret the Brussels IIa Regulation is shedding light on some provisions thereof, although there are still several questions waiting to be answered, one of them being the autonomous EU interpretation of the term “marriage” in the context of the scope of the Regulation.

The recast of the Brussels IIa Regulation: the sweet and sour fruits of unanimity

Council Regulation (EU) 2019/1111 recasts Council Regulation (EC) No 2201/2003 as of 1 August 2022 at eight major levels: (1) international jurisdiction, (2) hearing of the child, (3) international child abduction, (4) abolition of exequatur, (5) enforcement, (6) authentic instruments and agreements, (7) placement of children in another member State and (8) cooperation. All decisions falling within its scope of application shall be exempt of exequatur, but at the stage of enforcement grounds for refusal of recognition and enforcement may still be raised. The best interests of the child remains the paramount consideration of this EU instrument.

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

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.

Establishing habitual residence of adults under the Brussels IIa regulation: best practices from national case-law

This paper is dedicated to exploring the concept of habitual residence of adults in the context of the Brussels IIa Regulation focusing on the best practices of national courts of the EU Member States. It not only offers a still rare to find examination of the application of this important EU law concept in multiple EU Member States, but also discloses some common European trends and misconceptions, thus helping to better understand the EU notion of habitual residence. The paper claims that in the absence of clear advice from the Court of Justice of the European Union as to how habitual residence of an adult is to be established for the purposes of Brussels IIa, some useful guidance can nevertheless be inferred from the national case law.

The hearing of the child in the Brussels IIa Regulation and its Recast Proposal

The right of children to be heard is acknowledged as a fundamental human right, as the European Court of Human Rights in the case Iglesias Casarrubios and Cantalapiedra Iglesias v Spain of 11 October 2016 emphasized. In the Brussels IIa Regulation this right plays a crucial role. On 30 June 2016, the European Union Commission issued a Recast Proposal of this Regulation, which suggests amending it in several aspects including the hearing of the child. This paper analyzes how the Brussels IIa Regulation addresses the right of the child to be heard and the amendments suggested by its Recast Proposal.

The Commission's Proposal for a Recast of Brussels IIa Regulation

The article is a first comment of the Commission's proposal for the recast of Brussels IIa Regulation (COM (2016) 411 final, on 30 June 2016). Though skewed towards protection of children, this legislative choice is justified on objective grounds and provides the outline of a legal framework which is essentially coherent and serves to achieve the objectives which have been set. The amendments dovetail with the previous framework, perfecting it and making it more effective, without disrupting it. Although not all the political choices can be fully endorsed, the choice of a ‘child-centric’ approach, which gives importance to the specific features of children’s rights, is obvious and certainly should be welcomed. This has been achieved through ad hoc rules which, partially, would seem to derogate from a general, central principle within the European judicial area, ie the principle of automatic recognition and enforcement of decisions, now contingent on respecting the child’s best interests, as ascertained by the enforcement judge. Partially, by means of a marked acceleration towards uniform procedural rules and, lastly, by means of increasingly close synergy and collaboration between judicial and administrative authorities, not only acting through central authorities but also directly between central authorities.

Brexit and the Brussels IIa regulation

European regulations that bring clarity to cases of cross-border child contact and child abduction are now in doubt post-Brexit

TRANSFER OF JURISDICTION AND THE BEST INTERESTS OF THE CHILD

ARTICLE 8 of the Brussels IIa Regulation sets out the general rule regarding jurisdiction in intra-EU parental responsibility cases, namely that jurisdiction lies with the courts of the Member State of the habitual residence of the child. However, exceptionally, the court that has been seised of a case pursuant to Article 8 may not be the best placed to hear the case. To cater for such situations, the Regulation contains an innovative rule according to which a court that is seised of a case, and has jurisdiction on the substance, can transfer the case to a court of another Member State, if the latter is “better placed” to hear the case, and if the transfer is in the best interests of the child. Additionally, the transfer is subject to the condition that there is a “particular connection” between the child and the other Member State (e.g. the child is a national of that Member State). The “transfer of jurisdiction” rule, which is embodied in Article 15 of the Regulation, is at the heart of the Supreme Court decision in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15; [2016] 2 W.L.R. 1103.

Conflicts of EU courts on child abduction: the reality of Article 11(6)-(8) Brussels IIa proceedings across the EU

This article contains the final findings from a research project funded by the Nuffield Foundation and conducted by the authors on “Conflicts of EU Courts on Child Abduction”. Such “conflicts” were deliberately created by the EU legislature when it created a power in Article 11(6)-(8) of the Brussels IIa Regulation for the courts of the habitual residence to insist on the return of a child that has been abducted after a court in the State where the child was abducted to has refused to return the child on the basis of one of the exceptions to the duty to return provided for in Article 13 of the Hague Child Abduction Convention 1980. It will reveal how infrequently used and largely ineffective the Article 11(6)-(8) system is and will make proposals for law reform in the current revision of the Brussels IIa Regulation.

Cross-border public care and adoption proceedings in the European Union

The free movement of persons within the EU has meant that children at risk of harm from family members may be living in a Member State of which they are not a national. The child may be made subject to legal measures under the national law of the host State for the protection of their welfare. This article explores the competence of the EU to protect children in these circumstances, and the scope of the Brussels IIa Regulation in governing jurisdiction over child protection proceedings. It discusses the difference between national child protection systems and the political controversy surrounding English law on adoption following care proceedings issued over a child who is a national of a different Member State. It suggests that further information sharing on national systems and cooperation between courts is necessary for the effectiveness of the law and to encourage understanding of legitimate variation in Member State national family law.

First Cornerstones of the eu Rules on Cross-Border Child Cases: The Jurisprudence of the Court of Justice of the European Union on the Brussels Iia Regulation From C to Health Service Executive

(2014). First Cornerstones of the eu Rules on Cross-Border Child Cases: The Jurisprudence of the Court of Justice of the European Union on the Brussels Iia Regulation From C to Health Service Executive. Journal of Private International Law: Vol. 10, No. 1, pp. 1-40.