European Commentaries on Private International Law Brussels IIbis Regulation

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1 European Commentaries on Private International Law Brussels IIbis Regulation

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3 European Commentaries on Private International Law Brussels IIbis Regulation edited by Ulrich Magnus Peter Mankowski s e l p sellier european law publishers

4 Brussels IIbis Regulation is volume 2 of the series European Commentaries on Private International Law edited by Ulrich Magnus and Peter Mankowski, written by Introduction: Ulrich Magnus, Peter Mankowski 1-2: Walter Pintens 3-9: Alegría Borrás 10-15: Étienne Pataut 16-19: Peter Mankowski 20: Marta Pertegás Sender 21-25: Kurt Siehr 26-32: David McClean 33-34: Peter Mankowski 35-46: Ulrich Magnus 47-52: Peter McEleavy 53-58: Luís de Lima Pinheiro 59-63: Jörg Pirrung 64-72: Peter Mankowski To be cited as: Magnus / Mankowski / author s name, Brussels IIbis Regulation (2012) Art. # note # ISSN ISBN (print) ISBN (ebook) The Deutsche Nationalbibliothek lists this publication in the Deutsche Na tionalbiblio grafie; detailed bibliographic data are available on the Internet at by sellier european law publishers GmbH, Munich. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per mis sion of the publisher. Production: Karina Hack, Munich. Typesetting: fidus Publikations-Service GmbH, Nördlingen. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

5 List of Authors Professor Alegría Borrás Universidad de Barcelona Professor Doutor Luís Pedro Rocha de Lima Pinheiro Faculdade de Direito, Universidade de Lisboa Professor Dr. Ulrich Magnus Fakultät für Rechtswissenschaft, Seminar für ausländisches und internationales Privat- und Prozessrecht, Universität Hamburg Professor Dr. Peter Mankowski Fakultät für Rechtswissenschaft, Seminar für ausländisches und internationales Privat- und Prozessrecht, Universität Hamburg Professor David McClean, CBE, QC Emeritus Professor of Private International Law, School of Law, University of Sheffield Professor Peter McEleavy Chair in International Family Law, Dundee Law School, University of Dundee Barrister, 1 Garden Court, London Professor Étienne Pataut IRJS, Institute de rércheches juridiques de Sorbonne, Université Paris I Panthéon-Sorbonne Professor Dr. Marta Pertegás Sender Faculteit Rechten, Universiteit Antwerpen First Secretary at the Permanent Bureau, Hague Conference on Private International Law Professor Dr. Walter Pintens Faculty of Law, Department of Private Law, Katholieke Universiteit Leuven Prof. Dr. Jörg Pirrung Former Judge at the Court of First Instance of the European Communities, Luxembourg Professor at the Universität Trier Professor Dr. Kurt Siehr Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg Universität Zürich v

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7 Preface In April 2005 the policy decision of the Lord Chief Justice, for the judiciary, and the Lord Chancellor, for the Government, resulted in the creation of a new judicial post in England and Wales, Head of International Family Justice. This decision anticipated the very significant impact of Brussels IIbis which had entered into force on the 1 st of March I was appointed to that office and its responsibility and burdens have grown at an astonishing rate since those early days. As the demand increased I was able to establish an office of International Family Justice with a dedicated legal expert and an administrator to register, record and handle all communications that did not demand legal expertise. This growth is well illustrated by the number of cases referred to the office annually either by judges within our jurisdiction or by judges from other jurisdictions. Whilst we offer a global service, the preponderance of the referrals originate in proceedings issued under Brussels IIbis. In the year 2005 we recorded 3 referrals; in ; in ; in ; ; in In the current year we are already over the 200 mark. Thus when Professors Magnus and Mankowski invited me to write a Preface for European Commentaries I was intrigued and eager to see the text. It has not only satisfied my curiosity but immediately persuaded me that this is not only a work of outstanding scholarship but also one of great utility to judges, practitioners, academics and students of European family law. I might well say only that the quality of the scholarship is sufficiently established by the distinction of the contributors, all of whom have established the highest reputations in this field. However having read the sections on Articles 1-19 of the Regulation in particular, I add my own judgment. All these texts are profoundly authoritative. Available decisions of the Court of Justice of the European Union are all included and skilfully analysed. Problematic areas that would benefit from a reference to that Court for consideration and interpretation are emphasised. Where else could the curious and the needy find such clear guidance? The Good Practice Guide, compiled by a group of experts and published by the Commission in 2005, is now outdated and there is seemingly no resolve to launch a second edition. Professor Lowe s second edition of his comprehensive work on the International Movement of Children is eagerly awaited but as yet with no announced publication date. vii

8 I was particularly gratified by the recurrent treatment of direct judicial collaboration. As one who has argued the great potential of judicial activism in the operation and enforcement of the regulation, it is heartening to read that progress made to date is fully appreciated and supported by academic commentators. I hope that such clear and objective reasoning will persuade those few Member States who remain abstinent to appoint a sitting judge to the Network and to provide what resources are necessary to enable that judge to function. The Rt. Hon. Lord Justice Thorpe Head of International Family Justice High Court of Justice, Court of Appeal The Strand, London viii

9 Foreword The Brussels IIbis Regulation is the magna charta of cross-border divorce and cross-border lawsuits concerning parental responsibility in Europe. It has substantially changed the way how lawyers have to advice clients in such cases. The number of court decisions is mounting and ever rising. In particular, the big money cases often involve cross-border elements and are subjected to this Regulation. The time is ripe for a truly pan-european treatment. This Commentary follows the style of the exemplarily well received volume on the Brussels I Regulation. It assembles a team of top experts from all over Europe. Experts from Scotland and France to Portugal and from Spain and Italy to Belgium and Germany join forces. This Commentary combines in-depth analysis with a genuine and truly European perspective. It is cutting-edge writing providing the excellence so often called for. Given the relative scarcity of guiding decisions by the European Court of Justice on the Brussels IIbis Regulation for the foreseeable future, academic writing will have great relevance and will have to provide for the necessary guidance. This Commentary endeavours to serve the need of an ever rising number of practitioners concerned with European divorce or parental responsibility cases, and it will hopefully stir academic discussion in total Europe. At least it can claim to be the first ever English language article-by-article commentary on this very important piece of European legislation. Everyone who has ever undertaken the venture to edit a multi-author work only too well knows about the absolute necessity of competent assistance. The editors thus are absolutely grateful and cannot remotely express the thanks and accolades due to our backing team at Hamburg in a proper fashion. Without them it would have been virtually impossible to complete this commentary. Friederike Höffmann and Till Gerhardt with sheer and utter indefatigability compiled the Index and the Tables of Cases. The list of Abbreviations was prepared by Professor Mankowski. Secretarial support was rendered by Helga Jakobi. Susan Wintermuth and Bevan Marten to different degrees shouldered the linguistic revision applied. To praise Sellier Publishers, in particular Andreas Pittrich, Anja Urbanek and Anna Sauer, for their almost infinite patience and their constantly encouraging support would be tantamount to carrying owls to Athens. Ulrich Magnus Peter Mankowski ix

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11 Index List of Authors Preface Foreword Official Reports List of Principal Works Additional Bibliography List of Abbreviations v vii ix xiii xv xix xxxi Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/ Introduction 5 Chapter I Scope and definitions 50 Chapter II Jurisdiction Section 1 Divorce, legal separation and marriage annulment 86 Section 2 Parental responsibility 109 Section 3 Common provisions 177 Chapter III Recognition and Enforcement Section 1 Recognition 256 Section 2 Application for a declaration of enforceability 292 Section 3 Provisions common to Sections 1 and xi

12 Index Section 4 Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child 343 Section 5 Authentic instruments and agreements 378 Section 6 Other provisions 387 Chapter IV Cooperation between central authorities in matters of parental responsibility 414 Chapter V Relations with other instruments 422 Chapter VI Transitional provisions 434 Chapter VII Final provisions 445 Table of Cases European Court of Justice 481 Court of First Instance 487 European Court of Human Rights 488 National courts of the Member States 490 Index 496 xii