Yearbook of Private International Law

Yearbook of Private International Law Volume I (1999). Edited by Petar Sarcevic, Paul Volken and The Swiss Institute of Comparative Law Bearbeitet von Maarit Jänterä-Jareborg, Petar Sarcevic, Hans Ulrich Jessurun d'oliveira, Paul Volken, Gonzalo Parra- Aranguren, Alfred E. von Overbeck, Huang Jin, Guomin Lü, Laszlo Burian, Karsten Otte, J.H.A. van Loon, Andrea Bonomi 1. Auflage 1999. Buch. XII, 374 S. Hardcover ISBN 978 3 935808 47 7 Format (B x L): 16,5 x 24,5 cm Gewicht: 744 g Recht > Zivilrecht > Internationales Privatrecht schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME I 1999 EDITORS PETAR ŠARČEVIĆ Professor at the University of Rijeka PAUL VOLKEN Professor at the University of Fribourg PUBLISHED IN ASSOCIATION WITH SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND Sellier. European Law Publishers

Sellier. European Law Publishers ISBN 978-3-935808-47-7 Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. 1999 Kluwer Law International und Swiss Institute of Comparative Law. für den Nachdruck 2007 Sellier. European Law Publishers GmbH und Swiss Institute of Comparative Law. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Herstellung: Karina Hack, München. Druck und Bindung: AZ Druck und Datentechnik, Kempten. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

DOCTRINE MARRIAGE DISSOLUTION IN AN INTEGRATED EUROPE: The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention) Maarit JÄNTERÄ-JAREBORG* I. Introduction II. Background to the Convention III. Jurisdiction in Respect of Divorce, Legal Separation and Annulment of Marriage A. A Multitude of Alternative Jurisdictional Grounds B. The Risk of Forum Shopping IV. Jurisdiction in Respect of Parental Responsibility A. The Jurisdictional Grounds B. Major Differences in Relation to Article 10 of the 1996 Hague Convention C. The Concept of Parental Responsibility D. Child Abduction V. Lis Pendens and Dependent Actions A. Dismissal of the Case in Favour of the Court First Seised B. When is a Court Seised? VI. Recognition of Judgments Relating to Marriage Dissolution A. What Is Recognized? B. Automatic Recognition C. Grounds of Non-Recognition D. The Irish Declaration E. Public Policy and Differences in the Applicable Law F. Non-review as to substance VII. Recognition and Enforcement of Judgments Relating to Parental Responsibility A. What Is Recognized? B. Automatic Recognition and Grounds of Non-Recognition C. Enforcement VIII. Relation of the Convention to Other Conventions A. An Exclusively Applicable 'Basic Convention' B. Exceptions Arising from the Transitional Provisions * The author is professor of Private International Law and International Civil Procedure at the Uppsala University, Faculty of Law. She represented Sweden in the Working Party on the Extension of the Brussels Convention to Family Law. The author is grateful for the financial assistance received from the Bank of Sweden Tercentenary Foundation and to judge Hans Ytterberg vor valuable comments.

Jänterä-Jareborg C. Exceptions Caused by the Convention's Limited Material Scope D. Exceptions Caused by Declarations by Nordic Member States E. Treaties with the Holy See IX. Interpretation by the Court of Justice X. Concluding Remarks A. The Prospects of the Brussels II Convention B. Should the Convention Be Supplemented by other European Instruments? I. Introduction** European integration has to a large extent been regarded as an economic affair and the legal instruments adopted have aimed primarily at securing economic freedoms. The integration has, however, also far-reaching effects for an individual and his or her family life. When people make use of free mobility, they often marry or divorce across frontiers. For the individuals concerned, it is essential that their family law status be recognized at least in all those States to which they have a connection. Presently, several Member States are unwilling to recognize foreign divorces - and subsequent new marriages - thus causing considerable legal and social inconveniences to the parties, constituting a threat to the free movement of persons within the European Union. It can be said that the demands of the market create the need to take joint action also in the field of family law. Unified private international rules are a far less controversial device than the harmonization of family law within the Union. On 28 May 1998, the Member States of the European Union signed the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (hereafter referred to as the Brussels II Convention) and the Protocol on its interpretation by the Court of Justice of the European ** On 4 May 1999, the Commission of the European Communities presented a proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children, 99/0110 (CNS): this Yearbook, pp. 323-340. The Commission has incorporated into the proposal the substance of the Brussels II Convention, save such provisions which would be incompatible with the nature of the proposed instrument and the new framework for judicial cooperation in civil matters after the entry into force of the Amsterdam Treaty on 1 May 1999. The major changes include the following: Jurisdiction need not to be conferred to the Court of Justice since the Brussel II rules are to be incorporated into a Regulation (Art. 68 of the EC Treaty). Certain provisions of the Convention referring to the United Kingdom, Ireland or Denmark have been omitted or modified to take account of the position of these States, i.e., that Title IV of the EC Treaty does not apply in the said States unless they opt for its application in the manner prescribed in the Protocol annexed to the Treaties. Furthermore, no reservations can be placed in respect of the special arrangements concerning the 1931 Nordic Agreement and the Concordats with the Holy See. Reference is made to the text of the Convention in this article. 2

Marriage Dissolution in Europe Communities. 1 Although it is likely to take years before the Convention will enter into force or at least be applicable between several Member States, 2 the event can be regarded as historic. It shows that family law matters are currently regarded as an essential part of European integration and that the Member States, despite considerable divergencies in their domestic and international family law, are able to agree on uniform rules dealing with cross-border situations. In a press release by the Council of the European Union, the signing of the Convention was described as a 'breakthrough - probably the most important advance since the entry into force of the Maastricht Treaty - in the creation of a European legal area for the tangible benefit of the people of Europe.' 3 The Brussels II Convention is a so-called double treaty containing rules on direct jurisdiction, as well as rules on the recognition and enforcement of foreign judgments. The purpose is, firstly, to create a single jurisdictional area within the European Union in respect of proceedings relating to divorce, legal separation or marriage annulment and proceedings relating to parental responsibility initiated in connection with such matrimonial proceedings. Secondly, the Convention aims at guaranteeing within the Union the free circulation of judgments given on the occasion of these proceedings. This article is a survey of the new Convention, focusing on its structure and key provisions. It offers also background information on the Convention, drawing attention to those issues on which it was most difficult to reach agreement or where, in the author's opinon, the adopted solutions are disputable. The relation of the Convention to other Conventions will be touched upon. Finally, some tentative remarks will be made concerning how the European Community/European Union should best try to tackle family law issues connected with the internationalization of families. II. Background to the Convention The Brussels II Convention is not the first attempt within the European Community/European Union to draft rules regulating family law matters. The 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereafter referred to as the 1968 Brussels Convention) 1 The Convention and Protocol, as well as the Explanatory Reports are published in OJ of the European Communities 1998, C-221. See also in this Yearbook, pp. 299-322. 2 In the Council Act of 28 May 1998, the Council of the European Union recommends adoption of the Convention by the Member States in accordance with their respective constitutional rules. The Convention shall enter into force only after it has been adopted by all of the present 15 Member States of the Union. Member States which have adopted the Convention may, however, declare it to be applicable 'in advance' in relation to other Member States which have made the same declaration (see Art. 47). 3 Council of the European Union, General Secretariat, Press Release, 8853/98 (Presse 167) of Justice and Home Affairs Council Meeting of 28 May 1998. 3

Jänterä-Jareborg covers proceedings relating to maintenance. Other family law proceedings were excluded due to divergencies between the laws of the Member States. 4 In 1990, a Convention was signed between the Member States on the Simplification of Procedures for the Recovery of Maintenance Payments. In addition, the European Parliament has adopted a number of resolutions dealing with family law matters. 5 Nonetheless, the principal and practical impact of all these measures has been limited. European integration has been regarded mainly as an economic affair and the legal instruments adopted have been designed to serve an economic purpose. 6 As illustrated at the beginning of this article, family law issues are closely related to economic issues. In the early 1990s, negotiations were initiated with the aim of extending the scope of the 1968 Brussels Convention to family law proceedings, in particular to proceedings relating to the dissolution or weakening of the marriage bond 7 ; a Working Party was set up in 1993. Soon the project was directed towards the drafting of an independent Convention dealing with matrimonial proceedings, but modelled on the 1968 Brussels Convention. In 1995, after French and Spanish initatives, it was decided that the future Convention should also cover parental responsibility in cases when such an issue arises during matrimonial proceedings between the child's parents. The legal basis for the Convention is found in Article K.3 of the Maastricht Treaty. 8 4 It was feared that their inclusion would negatively affect the underlying principles of the Convention, thus making it less effective. See OJ 1979, C 59, Report by JENARD P., p. 10. 5 See MARTINY D., 'Is Unification of Family Law Feasible or Even Desirable?', in: Towards a European Civil Code, Second Revised and Expanded Edition, Nijmegen (etc.) 1998, p. 154. 6 OJ 1998, C 221, Report by BORRÁS A., p. 28. Although family law is not explicitly mentioned in the EC Treaty or in the Treaty Establishing the European Union, family issues come into play in policies of the Community/Union such as providing social protection and raising the standard of living and quality of life. In addition, there is a clear connection between family law issues and fundamental rights. Fundamental rights as guaranteed by the European Convention on Human Rights include protection of the family and must be respected by the Union. See Martiny D. (note 5), p. 158 and PINTENS W., 'Rechtvereinheitlichung und Rechtsangleichung im Familienrecht. Eine Rolle für die Europäische Union?', Zeitschrift für Europäisches Privatrecht 1998, pp. 673-674. 7 See OJ 1998, C 221, Report by BORRÁS A., pp. 30-31. The proposal put forth by Germany in 1992 to extend the 1968 Brussels Convention to certain family matters was directly connected with problems experienced in particular between France and Germany as a result of the lack of mutual recognition of their divorce decrees, thus creating the possibility of competing divorce proceedings relating to the same marriage. Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, With Evidence, House of Lords, Select Committee on the European Communities, Session 1997-98, 5 th Report, 1997, pp. 5 and 8. 8 Art. K.3 is to be seen in conjunction with Art. K.1. Point 6 of Art. K.1 of the Treaty establishes judicial co-operation in civil matters as one of the matters of common interest for the purposes of achieving the objectives of the Union, in particular the free 4

Marriage Dissolution in Europe According to EU rhetoric, a convention on matrimonial proceedings is necessary in response to requirements of European citizens and aims at 'bringing the citizen closer to the Union.' As questions put to the European Parliament illustrate, considerable inconveniences arise for all parties to 'limping marriages, i.e., where a person is considered married in one Member State and divorced in another. 9 Not all Member States, however, were convinced of the necessity of the project, fearing that it could lead to a conflict of conventions or an unnecessary duplication of conventions. 10 Several of the Member States which are parties to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations (hereafter referred to as the 1970 Hague Convention) were initially of the opinion that that Convention already provided a sufficient tool. Problems caused by 'limping marriages' within the Union could easily be resolved if all Member States of the Union were to ratify that Convention. In view of efforts by the Hague Conference on private international law to revise the 1961 Convention Concerning the Powers of Authorities and the Law Applicable in Respect of Protection of Minors, the opinion was expressed that rules relating to parental responsibility should be left to the Hague Conference. While the new European Union Convention was still being negotiated, revision of the 1961 Hague Convention led to the adoption of a new Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter refered to as the 1996 Hague Convention). The majority of the Member States were convinced of the advantages of a new convention in a European context covering both matrimonial proceedings and parental responsibility in such proceedings. Member States not parties to the 1970 Hague Convention also made it clear that they were not prepared to ratify that Convention. 11 Nonetheless, to meet the concerns of the more sceptical Member States, the work of the Hague Conference had to be taken into account. As a result, movement of persons. The 1968 Brussels Convention, on the other hand, is based on Art. 220 of the EC Treaty which at that time was the only legal basis available. 9 These situations often involved mixed marriages between nationals of the different Member States. See FALLON M., The Value Added by a European Union Instrument on Jurisdiction and the Enforcement of Judgments in Matrimonial Causes in the Light of Existing Conventions, Report Requested by the Commission of the European Communities, Secretariat-General, Cooperation in the Fields of Justice and Home Affairs, 31 May 1995, pp. 25-26. 10 This kind of criticism has been levelled against the 1990 Convention on the Simplification of Procedures for the Recovery Abroad of Maintenance Payments. See SUMAMPOUW M., 'The EC Convention on the Recovery of Maintenance: Necessity or Excess?', in: Law and Reality, Essays on National and International Procedural Law in Honour of Cornelis Carel Albert Voskuil, Dordrecht (etc.) 1992, pp. 315-336. 11 The following Member States are parties to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations: Denmark, Finland, Italy, Luxembourg, the Netherlands, Portugal, Sweden and the United Kingdom. 5