Articles

Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation

Th.M. de Boer1

Since 1 March 2001, family courts in the European Union (except Denmark) have been obliged to follow the rules of EC Regulation No. 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses. The Regulation was meant to complement the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, and that is why it has come to be known as the ‘Brussels II Regulation’. The Convention covers, roughly speaking, patrimonial matters – such as property, contracts and torts – while the Regulation deals with divorce and child custody. On 1 March 2002, another Regulation entered into force, replacing the Brussels Convention and therefore aptly called the ‘Brussels I Regulation’. However, ‘Brussels I’ does not apply in Denmark, and that means that the Brussels Convention is still in force as between Denmark and the other EU member states. To complicate matters further, another Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters continues to apply in all EU member states, as well as in Norway, Iceland, Switzerland and Poland: the Lugano Convention of 1988. Its text is virtually identical to that of the Brussels Convention, but there are major differences between the Lugano Convention and the Brussels I Regulation. As far as patrimonial matters are concerned, the courts in Europe now have to juggle with three different sets of rules: the Brussels I Regulation, the Brussels Convention and the Lugano Convention.

Footnotes

1 Professor of Private International Law and Comparative Law, University of Amsterdam, and member of the editorial board of the NILR. The text of this article was concluded in September 2002. In all likelihood, the proposal for a replacement of the Brussels II Regulation (infra sections 4 et seq.) will still be subject to major changes. After the conclusion of this article, I was informed that the ‘Brussels II bis’ proposal has become a bone of contention between the EU member states. My remarks will hopefully contribute to an improvement of the present text of Brussels II bis, particularly with regard to the prospective Regulation's provisions on its territorial scope (section 3.5 and section 4.1).

The main provisions of ‘Brussels II’ and ‘Brussels II bis’ have been reprinted in an appendix to this article.