Cross-Border Proceedings in Family Law Matters before National Courts and CJEU

1 February 2016 - 31 May 2018

Background

In its Report of 15 April 2014, the Commission has identified a number of gaps and difficulties arising in the application of Regulation (EC) 2201/2003 concerning divorce and parental custody matters (hereinafter: BIIbis or Regulation). The ‘rush to court’ arising from alternative nature of jurisdictional grounds, absence of the possibility to agree on the competent court and the confusion arising out of Article 6 are only some of drawbacks of the jurisdictional rules in matrimonial matters. Similarly, abundant case law of the Court of Justice of the European Union (CJEU) points to shortcomings of procedural framework of the Regulation in matters of parental responsibility. The supplementary provisions to the 1980 Hague Child Abduction Convention and the lack of a provision on a forum necessitatis can be mentioned as examples. The same holds true for provisions on the recognition and enforcement of decisions, especially those rendered in matters of parental responsibility.

Aims of the Project

This project aimed to identify difficulties in the application of the BIIbis experienced by national courts and to offer best practices in dealing with them. The purpose was to enhance the efficiency and consistency in the application and interpretation of the BIIbis and thereby to contribute to its correct and consistent implementation. At the same time, the project intended to offer guidance and recommendations on how to deal with the problems encountered and particularly by suggesting amendments to the BIIbis. Within that context, it was examined whether introducing a certain degree of party autonomy would be a suitable tool to remedy the existing shortcomings and to find the most appropriate approach in accommodating party autonomy in the BIIbis. Also, it was analysed to what extent the legal approaches applied in a number of other private international law instruments regulating family law issues may prove useful when revising the BIIbis for the sake of achieving the synergy of private international law instruments on family law matters. Within that framework, the project examined the relevance of the Regulation (EU) 606/2013 in the context of measures requested in legal proceedings in family matters.

Analytical and Comparative Research

In order to achieve the objectives, this project combined extensive analytical and comparative research. It analysed EU legislation and case law, as well as the practice of national courts of the EU Member States and literature in the field. The research also included an analysis of National Reports of all EU Member States, which were submitted by National Reporters in accordance with the Questionnaire distributed to them.

Conference

On 10 November 2017, a Conference was organised by Utrecht University entitled 'Enhancing the efficiency of the Brussels IIbis Regulation'. The Conference, which took place in Utrecht, gathered family law experts from various EU Member States who productively discussed the draft of the Recommendations (see below) and other issues arising in the context of the BIIbis. The event served as a useful tool for the dissemination of knowledge and the exchange of ideas. The Conference programme can be found here.

Outputs

The results of the research are reproduced in a Guide for Application of the Brussels IIbis Regulation. The Guide for Application presents a commentary based on the analysis of the provisions of the BIIbis, National Reports of all EU Member States, relevant CJEU case law and comparative literature. As aimed and expected, the Guide both determines the best practices of the BIIbis’s application and offers guidance and recommendations on how to deal with the problems encountered. The Guide is intended to be published in hard copy in 2018. The Recommendations offer suggestions to amend the BIIbis in order to enhance the efficiency and consistency in application of the BIIbis. With respect to provisions on matters of parental responsibility, they follow the sequence of the 2016 Commission's Proposal (Part I of the Recommendations). In a separate part (Part II), they offer suggestions on how to embrace party autonomy in the BIIbis and how to achieve greater consistency among various instruments that unify different aspects of private international law in family matters. Finally, the project also produced a table with all CJEU cases on BIIbis, providing references to the interpreted provisions, the ruling of the Court and links to the cases.

Partners & Project Team

This research was conducted by the T.M.C. Asser Instituut in cooperation with Utrecht University, International Legal Institute, Ghent University, and the University of Valencia. Project team members were:

The project was funded by the European Commission, DG Justice (JUST/2014/JCOO/AG).