Table of Contents:
4. Mutual Recognition and Enforcement of Family Law Decisions throughout the EU: the Discussions in the Framework of the Lecco Conference; the European Judicial Network in civil and commercial matters.
On 9-11 October 2003 an international conference was organised in
1. Mutual Recognition and Enforcement of Family Law Decisions throughout the EU: Legal and Political Background.
The legal and political background of judicial co-operation in family law matters within EU Member States is represented by Articles 61-67 of the Treaty of the European Union, as modified by the Treaty of Amsterdam in 1997, according to which, "in order to establish progressively an area of freedom, security and justice, the Council shall adopt (…) (c) measures in the field of judicial cooperation in civil matters" (Article 61). "Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include:
(a) improving and simplifying:
· the system for cross-border service of judicial and extrajudicial documents;
· cooperation in the taking of evidence;
· the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States" (Article 65).
During the meeting of the European Council in
"VI. Mutual recognition of judicial decisions
33. Enhanced mutual recognition of judicial decisions and judgements and
the necessary approximation of legislation would facilitate co-operation
between authorities and the judicial protection of individual rights. The
European Council therefore endorses the principle of mutual recognition which,
in its view, should become the cornerstone of judicial co-operation in both
civil and criminal matters within the
VII. Greater convergence in civil law
38. The European Council invites the Council and the Commission to prepare new procedural legislation in cross-border cases, in particular on those elements which are instrumental to smooth judicial co-operation and to enhanced access to law, e.g. provisional measures, taking of evidence, orders for money payment and time limits.
39. As regards substantive law, an overall study is requested on the need to approximate Member States’ legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings. The Council should report back by 2001."
On 3 December 1998 an Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice was adopted (so called Vienna Action Plan).
Following this plan a number of Regulations and initiatives were issued by the EU, among which we can mention:
· Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings;
· Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. [Official Journal L 160, 30.06.2000];
· Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [Official Journal L 12, 16.01.2001];
· Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters;
· a Green Paper on Compensation for crime victims [COM(2001) 536 final];
· a Green Paper (of 9 February 2000) on Legal aid in civil matters: The problems confronting the cross-border litigant;
· a Green Paper on alternative dispute resolution in civil and commercial law [COM(2002) 196 final];
· a Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings [COM(2002) 13 final];
· a Proposal for a Council Regulation creating a European enforcement order for uncontested claims [COM(2002) 159 final];
· Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters.
2. Mutual Recognition and Enforcement of Family Law Decisions throughout
the EU: Council Regulation (EC) No 1347/2000 of 29 May 2000 ("
As far as family law is concerned, the first instrument in the field of judicial co-operation has been the so-called "Brussels II" Regulation: more precisely the Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.
On 28 May 1998, the Member States had signed the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (known as the "Brussels II Convention") and the Protocol on its interpretation by the Court of Justice (Official Journal C 221, 16.07.1998). This Convention was never ratified by the Member States, because the Council issued the above-mentioned Regulation. This Convention was intended to extend the 1998 Brussels Convention to cover matrimonial matters, which were previously excluded from the scope of cooperation between Member States.
The Amsterdam Treaty changed the legal basis for judicial cooperation in civil matters, which has now been incorporated into the EC Treaty (Article 65). The Convention was therefore converted into a Community instrument (Regulation) to ensure that it is implemented quickly and to overcome the practical difficulties encountered by citizens in their daily lives. A Regulation was preferred to a directive because it enables strictly defined and harmonised rules to be applied quickly. Furthermore, it incorporates the content of the Convention, thereby ensuring continuity.
The Regulation covers civil proceedings relating to divorce, legal
separation and annulment of marriage, as well as matters concerning parental
responsibility for children of both spouses when the matrimonial proceedings
take place. Jurisdiction in matters relating to divorce, legal separation or
annulment of marriage is determined according to the country of residence of
one or both spouses or according to their nationality. The competent court also
has jurisdiction in all matters concerning parental responsibility over a child
of both spouses, if the child is resident in that
Where parallel cases are brought in different Member States, the second court seized waits for the first court seized to accept jurisdiction, then declines jurisdiction in favour of that court. In urgent cases it may take provisional or protective measures.
Judgements in matrimonial matters or in matters of parental
responsibility delivered in one
Upon its entry into force, this Regulation has replaced the existing conventions between the Member States and took precedence over the international conventions on the same subject. The Regulation has entered into force on 1st March 2001.
3. Mutual Recognition and Enforcement of Family Law Decisions throughout the EU: the New Regulation on which the Council Reached Political Agreement on 3 October 2003 ("Brussels II bis").
The "Brussels II" Regulation has undergone a certain criticism especially as far as decisions involving parental responsibility are concerned. Actually the Regulation still requires a procedure of exequatur for this kind of judgements. A French proposal was submitted on 3 July 2000, aiming at eliminating the need for an exequatur in relation to judicial decisions concerning rights of access of parents. Another limit of the Regulation is that it does not deal with cases concerning parental responsibility if such cases are not related to a procedure of divorce, legal separation or annulment of marriage. Therefore it does not apply to children born out of wedlock. This field was covered by a Commission’s proposal submitted on 6 September 2001. These two proposals for amendment of the "Brussels II" Regulations were merged together in a new proposal from the Commission, on 3 May 2002.
On 3 October 2003 the Council has reached an agreement on such a Commission’s proposal for a new Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
The new Regulation has two elements. First, it takes over the provisions on divorce (as well as on legal separation and marriage annulment) of Council Regulation (EC) No 1347/2000 as they are. Second, it integrates into a complete system of rules on parental responsibility the provisions on parental responsibility of Council Regulation (EC) No 1347/2000, the Commission proposal on parental responsibility and the French initiative on rights of access. As a result, Council Regulation (EC) No 1347/2000 is repealed, its provisions having been taken over in their entirety in the new Regulation.
The Council has opted for a single instrument on divorce (as well as on legal separation and marriage annulment) and parental responsibility with a view to facilitating the work of judges and practitioners when dealing with questions on parental responsibility that often arise in the context of matrimonial proceedings. The alternative would have been to repeal only the provisions on parental responsibility of Council Regulation (EC) No 1347/2000 to bring them together with the Commission proposal on parental responsibility and the French initiative on rights of access. The end result would have been two separate instruments dealing with related matters, one on divorce and one on parental responsibility, the former being an existing instrument (Council Regulation (EC) No 1347/2000) but with half of its provisions repealed. This alternative was not deemed satisfactory neither for facilitating the application of the law by judges and practitioners nor for promoting the simplification and coherence of Community legislation.
The new Regulation aims at the recognition and enforcement within the Community of decisions in matrimonial matters and in matters of parental responsibility based on common rules on jurisdiction. As regards matrimonial matters, the relevant provisions are taken over from Council Regulation (EC) No 1347/2000.
As regards matters of parental responsibility, a new set of rules is proposed, which builds on the existing provisions on parental responsibility in the context of divorce (as well as of legal separation and marriage annulment) proceedings of Council Regulation (EC) No 1347/2000 and also brings together the two proposals under discussion. In particular, a broad definition of "parental responsibility" is given in Article 2, according to which "the term ‘parental responsibility’ shall mean rights and duties given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect and relating to the person or the property of a child. In particular, the term shall include rights of custody and rights of access." It is therefore clear that–according to the new Regulation–no distinction can be any longer made between legitimate children and children born out of wedlock, whereas the "Brussels II" Regulation still refers only to "children of both spouses."
However, the new Regulation does not cover maintenance obligations
between spouses and/or between parents and children, as such aspects are ruled
by the above mentioned "
The European Council meeting at
To this end, the new Regulation:
(a) provides for that "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 seized" (see Article 10);
(b) refers to and integrates the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (see Articles 11 to 15);
(c) provides for the cross-border enforceability of (not only judgments but as well of) agreements between the parties (see Article 49a);
(d) extends the principle of mutual recognition to all decisions on parental responsibility (this corresponds to the Commission proposal on parental responsibility);
(e) abolishes exequatur for rights of access (this corresponds to the French initiative on rights of access; it is as well in accordance with an initiative by which the Commission is proposing abolishing exequatur for certain judgments in the commercial law area through the creation of a European Enforcement Order [EEO] for uncontested claims); and
elaborates a solution for the return of the child in cases of child abduction,
whereby the Member State to which the child has been abducted may take a
provisional protective measure not to return the child, which could in turn be
superseded by a judgment on custody issued by the courts of the Member State of
the child’s habitual residence. Furthermore, should the latter entail the
return of the child, the child should be returned without any special procedure
being required for the recognition and enforcement of the judgment in the
The Regulation will enter into force on 1st March 2005, which is to say exactly 4 years after the first Regulation ("Brussels II") had entered into force.
4. Mutual Recognition and Enforcement of Family Law Decisions throughout the EU: the Discussions in the Framework of the Lecco Conference; the European Judicial Network in civil and commercial matters.
During the above-mentioned conference in Lecco representatives of the Commission, as well as scholars and practitioners have explained the main features of the new Council Regulation, especially as far as cross-border right of access and child abduction are concerned. The discussions in plenary assembly have been followed by three workshops focusing on: (a) the role of international co-operation in cases of cross-border access rights and child abduction; (b) cross-border marriages and divorces and (c) successions and matrimonial property rights in a cross-border context.
As far as these latter matters are
concerned, let me point out that they are excluded from the scope of all
Regulations currently in force or under way ("
Another field in which the Commission is
working at this moment is the perspective of eliminating the exequatur
proceedings for all the decisions concerning alimony and maintenance rights
between spouses, which now are ruled by the "Brussels I" Regulation
(see e.g. the judgment of the Court of
Justice of the European Communities issued on February 27th,
Furthermore, the Commission is studying the possibility to intervene in the field of cross-border patrimonial relationships between couples cohabiting out of wedlock.
Representatives of the Commission insisted on the need to develop a more intense co-operation among the judiciaries of the Member States. In order to achieve this goal the Commission has set up a European Judicial Network in civil and commercial matters, according to a proposal presented by the Commission and adopted by the Council in May 2001. The network consists of representatives of the Member States’ judicial and administrative authorities and meets several times each year to exchange information and experience and boost cooperation between the Member States as regards civil and commercial law.
More precisely, the Network is composed of: (a) contact points designated by the Member States; (b) central bodies and central authorities provided for in Community instruments, instruments of international law to which the Member States are parties or rules of domestic law in the area of judicial cooperation in civil and commercial matters; (c) the liaison magistrates to whom Joint Action 96/277/JAI of 22 April 1996 concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union applies, where they have responsibilities in cooperation in civil and commercial matters; (d) any other appropriate judicial or administrative authority with responsibilities for judicial cooperation in civil and commercial matters whose membership of the Network is considered to be useful by the Member State to which it belongs.
The Network is responsible for: (a) facilitating judicial cooperation between the Member States in civil and commercial matters, including devising, progressively establishing and updating an information system for the members of the Network; (b) devising, progressively establishing and updating an information system that is accessible to the public. Without prejudice to other Community or international instruments relating to judicial cooperation in civil or commercial matters, the Network develops its activities for the following purposes in particular: (a) the smooth operation of procedures having a cross-border impact and the facilitation of requests for judicial cooperation between the Member States, in particular where no Community or international instrument is applicable; (b) the effective and practical application of Community instruments or conventions in force between two or more Member States; (c) the establishment and maintenance of an information system for the public on judicial cooperation in civil and commercial matters in the European Union, relevant Community and international instruments and the domestic law of the Member States, with particular reference to access to justice.
The main objective of this body is
therefore to make life easier for people facing litigation of whatever kind
where there is a transnational element – i.e. where it involves more than one
A vade mecum for the use of judges and other practitioners shall be drafted within the framework of the European Judicial Framework for the application of the new Brussels II Regulation.
5. The role of the Hague Conference and of the Council of
A pivotal role in Family Law matters is played as well by the Hague Conference on Private International Law and by the Council of Europe.
As far as the first institution is concerned let me just recall, among others, the 1980 Convention on the Civil Aspects of International Child Abduction, the 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the 1996 Child Protection Convention. An important achievement of the Hague Convention in this field is the setting up of an international data base on decisions taken by national courts on international child abduction, known as "Incadat" (http://126.96.36.199/index.cfm). The database, which is open to the public, including judges, should encourage consistent practices and uniform interpretation of the 1980 Convention. Another important result is the Guide to Good Practice under the 1980 Convention, which may also assist in interpreting the Convention and understanding its implementation in different legal systems.
Another important development has been
the growth around the Hague Conventions of an international network of judges
concerned with international child protection matters. For
The international network of liaison judges was
first proposed at the 1998 De Ruwenberg Seminar for judges on the international
protection of children. It was felt that the development of such a network
would facilitate at the international level communications and co‑operation
between judges and would assist in ensuring the effective operation of the 1980
Convention. Direct judicial communications have been helpful in discussing
problems of delay and conflicting jurisdiction and have been used to remove
practical obstacles to secure the safe return of the child and the abducting
parent. In January
As far as the Council of Europe is concerned, this institution has developed an intense activity in setting common standards in a number of ad hoc recommendations and conventions, aiming, among other things, to assure a better protection of children, drawing up a great number of international instruments on this subject. The main result of the large work which has been done in Strasbourg is represented by five conventions specifically devoted to children, as well as several recommendations of the Committee of Ministers of the Council of Europe concerning the fields of family law and children’s rights.
The five conventions are:
· the European Convention on the Adoption of Children (1967),
· the European Convention on the Legal Status of Children Born out of Wedlock (1975),
· the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (the Custody Convention - 1980),
· the European Convention on the Exercise of Children’s Rights (1996),
· the European Convention on Contact Concerning Children (2003).
As far as Council of Europe’s recommendations are concerned, they are quite numerous and important and concern different fields.
Two of them are specifically devoted to nationality of children and of spouses, in order to ensure equality between husband and wife in acquiring the nationality of the other spouse and in transmitting their nationality to the children (see the Resolutions on the Nationality of Children [(77) 13] and on the Nationality of Spouses of Different Nationalities [(77) 12]). Other two recommendations deal with the protection of children against ill-treatment and violence, the first having specific reference to the social environment of the child and the second to the familiar one (see the two Recommendations on the Protection of Children against Ill-Treatment or Violence [(79) 17 and (85) 41]).
Other relevant recommendations in the field of family law are:
· the resolution upon the age of full legal capacity [Resolution (72) 291],
· the resolution upon the equality of spouses in civil law [Resolution (78) 371],
· the recommendation upon parental responsibilities [Recommendation No. R (84) 41],
· the recommendation upon contributions following divorce [Recommendation No. R (89) 11].
The main principles deriving from these instruments are the following:
· recognition of the child as a person who has capacity and rights, and not only as someone who needs protection;
· equality between spouses and between each one of them and their children;
· equal treatment for children born in or out of wedlock;
· recognition of the principle of the child’s interest as a fundamental criterion for the implementation and interpretation of any provision concerning the child.
Further information on the activities of the Council of Europe is available at the following website: http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Family_law_and_children%27s_rights/.
For a comprehensive study on the topic of international conventions in family law matters see Oberto, International Conventions in the Field of Family Law, since 24 January 2000 available at the following website: http://www.giacomooberto.com/conventions/report.htm.
6. The possible role of the International Association of Judges and of the European Association of Judges in the Field of Judicial Co-operation in Family Matters.
Taking the floor in
The growth of the complexity of this system
will sooner or later bring about deep reforms within the systems governing the
status of judges in each country belonging to the EU. Furthermore, the process
of globalisation is showing that maybe even the boundaries of