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The Brussels II Regulation. The Council Regulation no 2201/2003 concerning the jurisdiction and the recognition and enforcement of judgment in matrimonial matters of parental responsibility. The historical background.

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The Brussels II Regulation

The Council Regulation no 2201/2003 concerning the jurisdiction and the recognition and enforcement of judgment in matrimonial matters of parental responsibility


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The historical background

  • The free movement of persons led to increasement of international marriages, the necessity of mutual recognition and enforcement of judgment increased not only in matrimonial matters, but in matters relating to the care of children as well.

  • The Brussels I convention did not regulate the matrimonial matters ---> mutual negotiations of member states -----> draft of convention – so called Brussel II convention


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The historical background

In the meantime – Amsterdam Treaty – communitarization of judicial cooperation in civil matters – no need to ratify the international convention ----> the prepared text of the Brussels II convention was transformed into Regulation of the Council no 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses – so called Brussels II Regulation


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The historical background

The Brussels II Regulation from 2000 – 46 articles – did not deal with all problems which arose – in 2002 Commission prepared a draft of new regulation concerning these matters (especially with the aim to extend the scope of application) ------> the draft was accepted in November 2003 – Regulation of the council no 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No1347/2000 – so called Brussels IIa Regulation of Brussels II bis (further only as Brussels II Regulation)


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Current situation

  • At 2005 GREEN PAPER ON APPLICABLE LAW AND JURISDICTION IN DIVORCE (“ROME III”) – >Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).


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The Brussels II Regulation – general characteristics

  • 72 articles (26 more than the previous regulation)

  • Divided into seven chapters:

  • Scope and definitions

  • Jurisdiction

  • Recognition and enforcement

  • Cooperation between central authorities in matters of parental responsibility

  • Relations with other instruments

  • Transitional provisions

  • Final provisions


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Scope of application

  • Article 1 of the Regulation - The regulation shall apply, whatever the nature of court or tribunal, in civil matters relating to:

  • Divorce, legal separation of marriage annulment,

  • The attribution, exercise, delegation, restriction or termination of parental responsibility.


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Scope of application

  • The notion shall be interpreted autonomously

  • The Regulation itself contains definitions interpreting lots of important notions – article 2 of the Regulation (such as judge, court, member state, parental responsibility, rights of custody etc.)

  • The matters of parental responsibility are further explained in article 1 para 2.


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Scope of application

Divorce, legal separation of marriage, marriage annulment:

  • Is applicable as well on the proceeding on existence of marriage,

  • Is not applicable on registered partnership or other kinds of legally regulated relationships of persons of the same sex

  • Only personal aspects, not questions of property


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Scope of application

  • The matters of parental responsibility deal with:

  • Rights of custody and rights of access,

  • Guardianship, curatorship and similar institutions,

  • the designation and function of any person or body having charge of the child's person or property, representing or assisting the child,

  • The placement of the child in a foster family or in institutional care,

  • Measures for the protection of the child relating to the administration, conservation or disposal of the child's property.


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Scope of application

  • Negative determination (article 1 para 3):

  • The establishment or contesting of a parent-child relationship,

  • Decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption,

  • The name and forenames of the child,

  • Emancipation,

  • Maintenance obligations (is in Brussels I)

  • Trusts or succession,

  • Measures taken as a result of criminal offences committed by children.


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Scope of application

  • The scope of application for the recognition and enforcement of judgments :

    Judgments concerning the matters which are included in the material scope of application. Is applicable as well on authentic instruments and agreements between the parties that are enforceable in the Member state, in which they were concluded.


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Scope of application

  • Territorial: all Member state with the exception of Denmark

  • Temporal – entered into force 1.8.2004, shall apply from 1.3.2005


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