Explanatory Report on the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation by the Court of Justice of the European Communities of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Text approved by the Council on 28 May 1998)
Date: 1998-05-28
Institutions: Council of the European Union
Subjects: matrimonial law

16.7.98

EN

Official  Journal  of  the  European  Communities

C 221/65

EXPLANATORY  REPORT

on the Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, on the
interpretation  by  the  Court  of  Justice  of  the  European  Communities  of  the  Convention  on
Jurisdiction  and  the  Recognition  and  Enforcement  of  Judgments  in  Matrimonial  Matters

(Text  approved  by  the  Council  on  28  May  1998)

(98/C 221/05)

I. GENERALREMARKS

1. At its meeting on 10 and 11 December 1993, the
European  Council  instructed  the  Working  Party
on  Extension  of  the  Brussels  Convention  to
consider the possibility of extending the scope of
the  Brussels  Convention  to  family  matters.

In  the  course  of  work  on  such  extension,  which
led  to  the  Convention  on  Jurisdiction  and  the
Recognition  and  Enforcement  of  Judgments  in
Matrimonial  Matters, 
considered
necessary to give the Court of Justice jurisdiction
to  interpret  its  rules,  in  order  to  ensure  uniform
application.  A 
the
interpretation  by  the  Court  of  Justice  was  thus
drawn  up.

protocol 

it  was 

draft 

on 

Following the political compromise of December
1997,  the  Presidency  requested  the  views  of  the
in  accordance  with
European  Parliament, 
Article K.6 of the Treaty on European Union, on
the  text  of  the  draft  Convention  and  on  the
essential  elements  of  the  draft  Protocol.  The
views  of 
the  European  Parliament  were
published in the Official Journal of the European
Communities  on  18  May  1998 (1).

to 

referred 

On  28  May  1998  the  Council  adopted  the  two
instruments  drawing  up,  on  the  one  hand,  the
Convention  on  Jurisdiction  and  the  Recognition
and  Enforcement  of  Judgments  in  Matrimonial
Matters,  hereinafter 
‘the
Convention’,  and,  on  the  other  hand,  the
Protocol  on  the  interpretation  by  the  Court  of
Justice  of  the  European  Communities  of  the
Convention  on  Jurisdiction  and  the  Recognition
and  Enforcement  of  Judgments  in  Matrimonial
Matters,  the  subject  of  this  explanatory  report.
Both  these  instruments  were  signed  on  the  same
day  by  the  representatives  of  all  the  Member
States.

as 

(1) OJ  C  152,  18.5.1998.

2. a) The  enacting  terms  drawn  up  are  based
primarily  on  Article  177  of  the  EC  Treaty.
They echo to a very large extent the Protocol
of 3 June 1971 (hereinafter referred to as the
1971  Protocol)  on  the  interpretation  by  the
Court  of  Justice  of  the  Convention  of
27  September  1968  on  Jurisdiction  and  the
Enforcement  of  Judgments 
in  Civil  and
Commercial  Matters  and  the  Protocol  of
25  May  1997  on  the  interpretation,  by  the
Court,  of  the  Convention  on  the  Service  in
the Member States of the European Union of
Judicial and Extrajudicial Documents in Civil
or  Commercial  Matters  (hereinafter  referred
to  as  the  1997  Protocol).

In  particular,  the  Protocol  subsumes  the  two
methods  of  bringing  proceedings  before  the
Court  provided  for  in  the  1971  Protocol.

and 

first 

second 

b) The procedures for the entry into force of the
Protocol  are  similar  to  those  established  by
the 
of
19 December 1988 (hereinafter referred to as
the  1988  Protocols)  on  the  interpretation  by
the Court of Justice of the Convention on the
Law  applicable  to  Contractual  Obligations
and  identical  to  those  provided  for  in  the
1997  Protocol.

Protocols 

The principle of assignment of jurisdiction to
the  Court  is  referred  to  in  the  Convention
under  discussion  (Article  45),  but  it  is  the
Protocol  which  defines  the  conditions  for
bringing  proceedings  and  the  national  courts
competent  to  do  so.

The  entry  into  force  of  the  Convention,
which  will  take  place  after  its  ratification  by
the  15  Member  States,  must  precede  that  of
the  Protocol,  which 
is  subject  only  to
adoption  by  three  of  those  States.

Accordingly,  the  earliest  that  the  Protocol
can  enter  into  force  is  at  the  same  time

C 221/66

EN

Official  Journal  of  the  European  Communities

16.7.98

as  the  Convention.  As  a  result,  only  the
courts  of  a  Member  State  that  is  a  party  to
both the Convention and the Protocol will be
able  to  ask  the  Court  of  Justice  for  a  ruling
or 
of
on 
an 
interpretation.

question 

opinion 

a 

c) Lastly,  the  final  provisions  are  similar  to
those  laid  down  in  this  area  by  the  Council
of  the  European  Union  in  respect  of  the
Conventions  established  in  the  context  of
Title  VI  of  the  Treaty  on  European  Union.
They correspond to those of the Convention,
mutatis  mutandis.

II. COMMENTS  ON  THE  ARTICLES

The  mechanism  provided  for  in  that  Article  is
inspired  by  Article  K.7  as  worded  in  the  Treaty
of  Amsterdam,  which  was  signed  in  1997.

Each  Member  State  must  indicate  its  choice  of
courts  at  the  time  of  the  notification  referred  to
in  Article  9(2).  Although  the  text  does  not  say
so,  it  is  clear  from  the  discussions  that  Member
States which have indicated that only the highest
courts may request the Court of Justice to give a
preliminary  ruling  could  at  any  time  extend  that
option  to  other  courts  sitting  in  an  appellate
capacity.

5. Paragraph  2  defines  the  courts  of  the  Member
States which are competent to make a referral to
the Court of Justice for a preliminary ruling on a
question  of  interpretation,  on  the  basis  of  the
the  Member  State
declaration  made  by 
concerned  pursuant  to  paragraph  1.

Article  1

These  are,  firstly,  the  highest  courts  of  Member
States,  which  are  listed  in  Article  3(1).

3. Article  1  establishes  the  principle,  posited  in  the
1971  and  1997  Protocols,  of  assignment  of
for
jurisdiction 
interpreting  the  provisions  of  the  Convention  on
Jurisdiction 
and
Enforcement  of 
in  Matrimonial
Matters  and  of  the  Protocol  itself.

the  Recognition 

the  Court  of 

Judgments 

Justice 

and 

to 

Article  2

4. Article  2  is  a  new  provision  by  comparison  with
the 1971, 1988 and 1997 Protocols. Paragraph 1
thereof  provides  that  each  Member  State  shall
indicate,  in  accordance  with  whichever  of  the
alternative  systems  provided  for  in  paragraph  2
is  chosen,  which  courts  in  that  Member  State
may  request  the  Court  of  Justice  to  give
preliminary 
of
interpretation.

questions 

rulings 

on 

took 

the  view 

The  reason  for  this  provision  is  that  some
delegations  wanted  jurisdiction  restricted  to  the
that
highest  courts.  They 
judgments on matters covered by the Convention
needed  to  be  given  as  promptly  as  possible  in
order not to prejudice the interests of individuals
where  there  are  proceedings  for  divorce,  legal
separation  or  marriage  annulment  (especially
because  there  is  no  possibility  for  the  national
courts  to  give  provisional,  including  protective
measures,  in  these  cases)  or  proceedings  relating
to parental responsibility for the children of both
spouses. Therefore only cases brought before the
highest  national  courts  would  appear  likely  to
require  referral  to  the  Court  of  Justice.

Secondly,  under  the  terms  of  paragraph  2,  the
courts  of  Member  States  sit  in  an  appellate
capacity.  This  essentially  refers,  therefore,  to
appeal  courts,  except  when  they  are  sitting  as
tribunals  of  first  instance,  and  to  other  national
courts  hearing  cases  in  their  capacity  as  appeal
courts.

Courts  sitting  in  judgment  at  first  instance,
however, have no power to refer questions to the
Court  of  Justice.

Article  3

6. This  Article  defines  the  highest  courts  of  the
Member  States  which  are  competent  to  make  a
referral  to  the  Court  of  Justice  for  a  preliminary
ruling  on  a  question  of  interpretation.

The  list  is  limitative  and  any  other  supreme
courts  which  might  exist  in  Member  States  have
no powers of referral, even if their decisions have
civil impact.

7. The list given in paragraph 1 may be modified at
the request of the Member State concerned. That
possibility  was  introduced  for  the  first  time  by
the  1997  Protocol.

Such  modification  may  prove  necessary,  for
example,  where  a  change  takes  place  in  a
Member  State’s  judicial  system.

16.7.98

EN

Official  Journal  of  the  European  Communities

C 221/67

be 

sent 

request  must 

the
The 
Secretary-General  of  the  Council,  in  his  capacity
as  depositary  of  the  Protocol.  He  informs  the
other Member States of the request as quickly as
possible,  including  the  States  which  are  not  yet
party  to  the  Protocol.

to 

The  decision  on  the  modification  of  the  list  is
taken  by  the  Council  in  accordance  with  the
rules  of  procedure  applicable.

Once  it  has  been  adopted,  the  modification
displays  its  effects  under  the  conditions  specified
in  the  Council  decision  (stipulating  for  instance
the  date  of  entry  into  force  of  the  modification).
Given the nature of the decision, it did not seem
necessary  for  it  to  be  adopted  by  the  Member
their  respective
in  accordance  with 
States 
constitutional 
has
Provision 
requirements. 
therefore  been  made  for  specific  rules,  which
the  amendment
constitute  an  exception 
procedure 
in  Article  11  of  the
Protocol.

laid  down 

to 

In  the  event  of  accession  to  the  Protocol  by  a
State  which  becomes  a  member  of  the  European
Union,  that  State  will  have  to  indicate,  when  it
deposits 
the
conditions for application of Article 2 and which
of its highest courts will be competent to ask the
Court  of  Justice  to  rule  on  a  question  of
interpretation.  (Article  10(3)).

instrument  of  accession 

its 

Such  a  mechanism  allows  for  monitoring  by
Member  States,  even  those  not  party  to  the
Protocol,  of  the  courts  designated,  which  should
enable  the  system  to  continue  to  operate  on  a
sound  basis.

Article  4

8. This Article, which is based on Article 177 of the
EC  Treaty  and  subsumes  Article  3  of  the  1971
Protocol  and  Article  3  of  the  1997  Protocol,
concerns 
for  a
preliminary ruling.

the  procedure 

for  referral 

Paragraph  1  stipulates  that,  where  the  courts
listed  in  Article  3(1)  consider  an  interpretation
necessary  to  enable  them  to  give  judgment,  they
must  refer  such  questions  to  the  Court  of
Justice.

In  so  far  as  it  imposes  a  requirement  on  the
highest courts, the purpose of such a provision is
to  promote  uniform 
the
Convention  within  the  Member  States  of  the
European  Union.

application  of 

9. Article  4(2)  stipulates  that,  when  sitting  in  an
appellate  capacity,  courts  have  the  option  of
referring  a  question  to  the  Court  of  Justice  with
a  request  for  interpretation  where  they  consider
a  decision  necessary  on  a  point  raised  in  a  case
pending  before  them.

Article  5

10. All  Member  States,  even  those  not  party  to  the
Protocol,  as  well  as  the  Commission  and  the
Council  of  the  European  Union,  are  entitled  to
or  written
of 
submit 
observations  to  the  Court  of  Justice,  once  the
latter  has  received  a  request  for  interpretation.

statements 

case 

Article  6

11. This  Article  replicates  Article  4  of  the  1971
Protocol  and  Article  4  of  the  1997  Protocol.  It
makes  provision  for  a  second  procedure,  which
enables the Procurators-General of the Courts of
Cassation  or  any  other  authority  designated  by
the  Member  States  to  ask  the  Court  of  Justice
for  a  ruling  on  a  question  of  interpretation,
where they are of the opinion that a judgment by
a  court  in  their  State  which  has  become  res
judicata  conflicts  with  the  interpretation  given
on  that  point  by  the  Court  of  Justice  or  by  such
court  as  referred  to  in  Article  2(2)  of  another
Member  State  party  to  the  Protocol.

This provision is also designed to ensure uniform
interpretation  of  the  Convention.

It is for the competent judicial authority to assess
the  advisability  of  making  a  request 
for
interpretation  to  the  Court  of  Justice  in  such  a
case.

Article  7

12. As  in  the  1971  and  1997  Protocols,  this  Article
establishes  the  principle  that  the  Statute  of  the
Court  of  Justice  and  its  Rules  of  Procedure  are
to  apply.

Article  8

13. This  Article,  which  stipulates  that  this  Protocol
may  not  be  subject  to  any  reservation,  requires
no  particular  comment.

Article  9

14. This  Article  makes  provision  for  the  entry  into
force  of  the  Protocol  in  accordance  with  the
rules  laid  down  in  this  regard  by  the  Council  of
the  European  Union.

In  order  to  enable  the  Court  of  Justice  to
exercise  its  jurisdiction  as  soon  as  possible,  the
entry  into  force  of  the  Protocol  has  been  set  at
the  expiry  of  a  90-day  period  following  deposit
of  its  instrument  of  adoption  by  the  third  of  the

C 221/68

EN

Official  Journal  of  the  European  Communities

16.7.98

15  States  which  were  members  of  the  European
Union on 28 May 1998, the date of adoption by
the Council of the Act drawing up this Protocol,
to  do  so.

However,  the  Protocol  cannot  enter  into  force
before  the  Convention.  In  accordance  with
Article 47 of the latter, the Convention will enter
force  90  days  after  notification  of
into 
completion  of 
the  constitutional  procedures
required  for  its  adoption  by  the  Member  State
which,  as  a  Member  of  the  European  Union  at
the  Act
the 
the  Council  draws  up 
establishing  the  Convention, 
last  to
complete  that  formality.

is  the 

time 

Thus,  advance  application  of  the  Convention
within  the  meaning  of  Article  47(4)  cannot
provide  a  legal  basis  for  the  assignment  to  the
Court  of  Justice  of  jurisdiction  in  respect  of
interpretation,  within  the  meaning  of  Article  45
thereof.  Neither  would  adoption  of  the  Protocol
by  all  the  Member  States  entitle  the  Court  of
Justice 
the
Convention as long as the latter had not entered
into  force.

the  provisions  of 

interpret 

to 

Article  10

15. This  Article  stipulates  that  the  Protocol  is  open
to  accession  by  any  State  which  becomes  a
member  of  the  European  Union.  Conversely,  a
State  which  is  not  a  member  of  the  European
Union  can  accede  neither  to  the  Convention  nor
to  the  Protocol.

With  regard  to  the  procedures  for  acceding  to
the  Protocol,  the  Article  makes  provision  in
for
simplified 
particular 
modifying the list of the highest courts contained

procedures 

for 

in Article 3(1), following the designation of those
of  a  new  Member  State.

Between the date of deposit of the instrument of
accession  and  the  date  of  entry  into  force  of  the
Protocol  with  respect  to  the  acceding  Member
State,  the  Council  is  to  adopt  the  modifications
to  be  made  to  the  list  of  highest  courts.

Article  11

16. This  Article 

concerns 

the  procedure 

for

amending  the  Protocol.

Only  Member  States  which  are  party  to  the
Protocol,  and  the  Commission,  are  entitled  to
propose  amendments.

the
The  Council  recommends  adoption  by 
Member  States, 
their
respective  constitutional  requirements,  of  the
amendments  it  adopts.

in  accordance  with 

This  procedure  does  not  apply  to  the  simple
modification  of  the  list  of  highest  courts.

Article  12

17. This  Article  entrusts  to  the  Secretary-General  of
the  Council  the  role  of  depositary  of  the
Protocol.

The  Secretary-General  is  to  inform  the  Member
States of all notifications concerning the Protocol
and  ensure  their  publication  in  the  ‘C’  series
the  European
of 
Communities.

the  Official  Journal  of