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II. The Brussels II Convention

Published online by Cambridge University Press:  17 January 2008

Wendy Kennett  and
Wendy Kennett
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Extract

The other development under the justice and home affairs pillar of the Union relevant to European civil procedure is the so-called Brussels II Convention: the Convention on Jurisdiction and Enforcement of Judgments in Matrimonial Matters signed on 28 May 1998. This Convention continues the work of the 1968 Brussels Convention by extending similar principles to the field of matrimonial matters. The earlier Convention is seen as the general convention and the 1998 Convention as a lex specialis which follows the principles of the earlier Convention as far as possible.

Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 2 , April 1999 , pp. 467 - 472
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

7. Although the term “court” is frequently used in the Convention, it is explicitly recognised in Art.1(2) that this must be interpreted to cover other bodies officially recognised by a member State as having jurisdiction in matrimonial matters.

8. For the purposes of this note, such proceedings will be referred to hereafter as “matrimonial proceedings”.

9. Art.2(3).

10. Since this process of selection is considered to be relevant when determining the scope ratione personae of the Convention under Art.7 (Borras Report, para.45 (1998) O.J. C221/42) it may be assumed that it is of general application and therefore also governs Art.2(1)(a).

11. The European Convention takes priority over the Hague Convention, but applies only in cases where the child is habitually resident in a member State.

12. This criterion must be satisfied for each child of both parents.

13. Art.3(2). These criteria are also applicable under the Hague Convention (Art.10(1)), but that Convention has the additional requirement that one of the spouses be habitually resident in the State hearing the case—a requirement that could not be applied in Brussels II without completely undermining its purpose and structure.

14. Whether by a final judgment or otherwise (Art.3(3)).

15. Until they end in a final judgment or otherwise (Art.3(3)).

16. This would presumably limit the availability of extraterritorial Mareva injunctions to cases where the measure is intended to bite on a person present within the jurisdiction—but such injunctions are hardly a common feature of matrimonial litigation.

17. And associated orders concerning costs etc.

18. But presumably might occasionally be recognised by a member State which has broader rules on recognition as in Cases 9 and 10/77, Bavaria Fluggesellschaft Schwabe & Co. KG & Germanair Bedarfsluftfahrt v. Eurocontrol [1977] E.C.R. 1517.Google Scholar

19. Provided that the judgment is not subject to further appeal in the State of origin.

20. Four defences are listed.

21. Six defences are listed.

22. An innovation by comparison with the 1968 Brussels Convention.

23. Except in cases of urgency.

24. Art.2.