Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children
Date: 1999-05-04
Institutions: European Commission
Subjects: child care, judicial cooperation, matrimonial law, national law, parental responsibility

31.8.1999

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II

(Preparatory Acts)

COMMISSION

Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and in matters of parental responsibility for joint children

(1999/C 247 E/01)

COM(1999) 220 final (cid:151) 1999/0110(CNS)

(Submitted by the Commission on 26 May 1999)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular point (c) of Article 61 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

better achieved by the Community; whereas this Regu-
lation confines itself to the minimum required in order
to achieve those objectives and does not go beyond what
is necessary for that purpose;

and recommended it

(6) Whereas the Council, by act dated 28 May 1998 (1),
concluded a convention on jurisdiction and the recog-
judgments in matrimonial
nition and enforcement of
matters
adoption by the
Member States in accordance with their respective consti-
tutional requirements; whereas continuity in the results of
the negotiations for conclusion of the convention should
be ensured; whereas the content of
this Regulation is
substantially taken over from it;

for

(1) Whereas the Member States have set

themselves the
objective of maintaining and developing the Union as
in which the
an area of freedom, security and justice,
to
free movement of persons
establish such an area the Community is
to adopt,
among others,
the measures relating to judicial coop-
eration in civil matters needed for the sound operation
of the internal market;

assured; whereas

is

(2) Whereas the sound operation of

the internal market
the need to improve and expedite the free

entails
movement of judgments in civil matters;

(3) Whereas this is a subject now falling within the ambit of

Article 65 of the Treaty;

(4) Whereas differences between national

rules governing
jurisdiction and enforcement hamper the free movement
the internal
of persons and the sound operation of
market; whereas
for
are
there
enacting provisions to unify the rules of conflict of juris-
diction in matrimonial matters and in matters of parental
responsibility so as to simplify the formalities for rapid
and automatic recognition and enforcement of judgments;

accordingly grounds

(5) Whereas, in accordance with the principles of subsidiarity
and proportionality as set out in Article 5 of the Treaty,
the objectives of this Regulation cannot be sufficiently
achieved by the Member States and can therefore be

(7) Whereas,

in order

to attain the objective of

is necessary and appropriate that

free
movement of judgments in matrimonial matters and in
matters of parental responsibility within the Community,
it
the cross-border
recognition of jurisdiction and judgments in relation to
the dissolution of matrimonial ties and to responsibility
for
the children of both spouses be governed by a
mandatory, and directly applicable, Community legal
instrument;

(8) Whereas the scope of this Regulation should include civil
proceedings and other non-judicial proceedings occurring
in matrimonial matters in certain States, and excludes
purely religious procedures; whereas it should therefore
be provided that the reference to (cid:145)courts(cid:146) includes all the
judicial or otherwise, with jurisdiction in
authorities,
matrimonial matters;

(9) Whereas

be

should

confined

this Regulation

to
proceedings relating to the dissolution or annulment of
matrimonial
ties as such; whereas the recognition of
divorce and annulment rulings affects only the dissolution
of matrimonial ties; whereas, despite the fact that they
may be interrelated,
the Regulation does not affect
issues such as the fault of the spouses, property conse-
quences of the marriage, the maintenance obligation or
any other ancillary measures;

(1) OJ C 221, 16.7.1998, p. 1.

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(10) Whereas the Regulation covers parental

responsibility
issues that are closely linked to proceedings for divorce,
separation or annulment; whereas the concept of (cid:145)parental
responsibility(cid:146) has to be defined by the legal system of the
Member
under
consideration, but it will apply only to children of both
spouses;

responsibility

in which

State

is

(11) Whereas the grounds for jurisdiction accepted in this
Regulation are based on the rule that there must be a
link between the party concerned and the Member
real
the decision to
State exercising jurisdiction; whereas
include certain grounds corresponds to the fact
that
legal systems and are
they exist
accepted by the other Member States;

in different national

(12) Whereas one of the risks to be considered in relation to
the protection of the children of both spouses in a marital
crisis is that one of the parents will move the child inter-
nationally; whereas
is
accordingly maintained as the criterion for jurisdiction
in cases where, because the child has been moved or
has not been returned without lawful reason, there has
been a de facto change in the habitual residence;

lawful habitual

residence

the

(13) Whereas the word (cid:145)judgment(cid:146)

refers only to positive
decisions, that is to say those that lead to divorce, legal
separation or marriage
those
documents which have been formally drawn up or
registered as authentic instruments and are enforceable
in one Member State are treated as equivalent to such
(cid:145)judgments(cid:146);

annulment; whereas

(14) Whereas the recognition and enforcement of judgments
given in a Member State are based on the principle of
mutual trust; whereas the grounds for non-recognition are
kept
to the minimum required; whereas, nonetheless,
means of redress should be available in order to ensure
observance of public policy in the State addressed and to
safeguard the rights of
the
parties, so as to withhold recognition of irreconcilable
judgments;

the defence and those of

(15) Whereas the State addressed should review neither the
jurisdiction of the State of origin nor the findings of fact;

(16) Whereas no procedures may be required for the updating
of civil-status documents in one Member State where a
final judgment has been given in another Member State;

(17) Whereas the convention concluded by the Nordic States
in 1931 should be capable of application within the limits
set by this Regulation;

(18) Whereas

Spain,

and Portugal had concluded
concordats before these matters were brought within the
ambit of the Treaty; whereas it is necessary to ensure that

Italy

States

their
these
commitments in relation to the Holy See;

breach

not

do

international

(19) Whereas the Member States should remain free to agree
the
themselves on practical measures
among
application of the Regulation so long as no Community
measures have been taken to that end;

for

(20) Whereas the Council reserves the power to decide on
changes to the list of courts enjoying jurisdiction, at the
request of the relevant Member State;

(21) Whereas, no later than five years after the date of the
the Commission
such

this Regulation,
entry into force of
must
and
application
amendments as may appear necessary;

review its

propose

(22) Whereas,

in accordance with Articles 1 and 2 of

the
Protocols on the position of the United Kingdom and
Ireland and on the position of Denmark, those Member
States are not participating in the adoption of this Regu-
lation; whereas this Regulation is accordingly not binding
on the United Kingdom, Ireland or Denmark, nor is it
applicable in their regard,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE

Article 1

1.

This Regulation shall apply to:

(a) civil proceedings relating to divorce,

legal separation or

marriage annulment;

(b) civil proceedings relating to parental responsibility for the
children of both spouses on the occasion of the matri-
monial proceedings referred to in (a).

2.
Other proceedings officially recognised in a Member State
shall be regarded as equivalent to judicial proceedings. The
term (cid:145)court(cid:146) shall cover all the authorities with jurisdiction in
these matters in the Member States.

CHAPTER II

JURISDICTION

SECTION 1

GENERAL PROVISIONS

Article 2

Divorce, legal separation and marriage annulment

In matters relating to divorce,
annulment,
Member State:

jurisdiction shall

legal separation or marriage
the
lie with the courts of

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(a) in whose territory:

(cid:151) the spouses are habitually resident, or

Article 4

Child abduction

(cid:151) the spouses were last habitually resident, in so far as

one of them still resides there, or

(cid:151) the respondent is habitually resident, or

(cid:151) in the event of a joint application, either of the spouses

is habitually resident, or

(cid:151) the applicant is habitually resident if he or she resided
immediately before the

least a year

there for at
application was made, or

(cid:151) the applicant is habitually resident if he or she resided
there for at least six months immediately before the
application was made and is a national of
the
Member State in question;

(b) of nationality of both spouses.

Article 3

Parental responsibility

1.
The courts of a Member State exercising jurisdiction by
virtue of Article 2 on an application for divorce, legal sepa-
ration or marriage annulment shall have jurisdiction in a
matter relating to parental responsibility over a child of both
spouses where the child is habitually resident in that Member
State.

2. Where the child is not habitually resident in the Member
State referred to in paragraph 1, the courts of that State shall
have jurisdiction in such a matter if the child is habitually
resident in one of the Member States and:

(a) at least one of the spouses has parental responsibility in

relation to the child, and

(b) the jurisdiction of the courts has been accepted by the

spouses and is in the best interests of the child.

The jurisdiction conferred by paragraphs 1 and 2 shall

3.
cease as soon as:

(a) the judgment allowing or
legal

refusing the application for
separation or marriage annulment has

divorce,
become final, or

The courts with jurisdiction within the meaning of Article 3
shall exercise their jurisdiction in conformity with the Hague
Convention of 25 October 1980 on the civil aspects of inter-
national child abduction, and in particular Articles 3 and 16
thereof.

Article 5

Counterclaim

The court in which proceedings are pending on the basis of
Articles 2 to 4 shall also have jurisdiction to examine a
counterclaim, in so far as the latter comes within the scope
of this Regulation.

Article 6

Conversion of legal separation into divorce

Without prejudice to Article 2, a court of a Member State
which has given a judgment on a legal separation shall also
have jurisdiction for converting that judgment into a divorce, if
the law of that Member State so provides.

Article 7

Exclusive nature of jurisdiction under Articles 2 to 6

A spouse who:

(a) is habitually resident in the territory of a Member State; or

(b) is a national of a Member State,

may be sued in another Member State only in accordance with
Articles 2 to 6.

Article 8

Residual jurisdiction

1. Where no court of a Member State has jurisdiction
pursuant to Articles 2 to 6, jurisdiction shall be determined,
in each Member State, by the laws of that State.

(b) in those cases where proceedings in relation to parental
responsibility are still pending on the date referred to in
(a), a judgment in these proceedings has become final, or

(c) the proceedings referred to in (a) and (b) have come to an

end for another reason.

2.
As against a respondent who is not habitually resident
and is not a national of a Member State, any national of a
Member State who is habitually resident within the territory of
another Member State may,
like the nationals of that State,
avail himself of the rules of jurisdiction applicable in that State.

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SECTION 2

EXAMINATION AS TO JURISDICTION AND ADMISSIBILITY

3. Where the jurisdiction of the court first seised is estab-
lished,
the court second seised shall decline jurisdiction in
favour of that court.

Article 9

Examination as to jurisdiction

Where a court of a Member State is seised of a case over which
it has no jurisdiction under this Regulation and over which a
court of another Member State has jurisdiction by virtue of this
Regulation, it shall declare of its own motion that it has no
jurisdiction.

Article 10

Examination as to admissibility

1. Where a respondent does not enter an appearance, the
court with jurisdiction shall stay the proceedings so long as it
is not shown that the respondent has been able to receive the
document
an equivalent
document in sufficient time to enable him to arrange for his
defence, or that all necessary steps have been taken to this end.

the proceedings or

instituting

The national provisions transposing the Council Directive
2.
on the service in the Member States of judicial and extrajudicial
documents in civil or commercial matters shall apply in lieu of
the provisions of paragraph 1 if the document commencing
the action has had to be transmitted abroad pursuant to that
Directive.

Until the national provisions transposing that Directive enter
into force, the provisions of the Convention of Hague of 15
November 1965 on the service abroad of judicial and extraju-
dicial documents in civil or commercial matters shall apply if
the document commencing the action has had to be trans-
mitted abroad pursuant to that Convention.

SECTION 3

LIS PENDENS AND DEPENDENT ACTIONS

Article 11

1. Where proceedings involving the same cause of action
and between the same parties are brought before courts of
different Member States, the court second seised shall of its
own motion stay its proceedings until such time as the juris-
diction of the court first seised is established.

for divorce,

separation or
2. Where proceedings
marriage annulment not involving the same cause of action
and between the same parties are brought before courts of
different Member States, the court second seised shall of its
own motion stay its proceedings until such time as the juris-
diction of the court first seised is established.

legal

In that case, the party who brought the relevant action before
the court second seised may bring that action before the court
first seised.

SECTION 4

PROVISIONAL AND PROTECTIVE MEASURES

Article 12

including protective, measures

In urgent cases, the provisions of this Regulation shall not
the courts of a Member State from taking such
prevent
provisional,
in respect of
persons or assets in that State as may be available under the
law of that Member State, even if, under this Regulation, the
court of another Member State has jurisdiction as to the
substance of the matter.

CHAPTER III

RECOGNITION AND ENFORCEMENT

Article 13

Meaning of (cid:145)judgment(cid:146)

For the purposes of this Regulation, (cid:145)judgment(cid:146) means a
1.
divorce,
legal separation or marriage annulment pronounced
by a court of a Member State, as well as a judgment relating
the spouses given on the
to the parental responsibility of
occasion of
the
judgment may be called, including a decree, order or decision.

such matrimonial proceedings, whatever

The provisions of this chapter shall also apply to the
2.
determination of
the amount of costs and expenses of
proceedings under this Regulation and to the enforcement of
any order concerning such costs and expenses.

For

the purposes of

implementing this Regulation,
3.
documents which have been formally drawn up or registered
as authentic instruments and are enforceable in one Member
State and also settlements which have been approved by a
court in the course of proceedings and are enforceable in the
concluded shall be
Member State
recognised and declared enforceable under the same conditions
as the judgments referred to in paragraph 1.

in which they were

SECTION 1

RECOGNITION

Article 14

Recognition of a judgment

1.
A judgment given in a Member State shall be recognised
in the other Member States without any special procedure
being required.

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In particular, and without prejudice to paragraph 3, no
2.
special procedure shall be required for up-dating the civil-status
records of a Member State on the basis of a judgment relating
to divorce,
legal separation or marriage annulment given in
another Member State, and against which no further appeal
lies under the law of that Member State.

(c) if

the person in default was not duly served with the
document which instituted the proceeding or with an
time to enable that
equivalent document
in sufficient
person to arrange or his or her defence unless it
is
determined that such person has accepted the judgment
unequivocally;

Any interested party may,

3.
in accordance with the
procedures provided for in sections 2 and 3 of this chapter,
apply for a decision that the judgment be or not be recognised.

(d) on the request of any person claiming that the judgment
infringes his or her parental responsibility, if it was given
without such person having been given an opportunity to
be heard;

4. Where the recognition of a judgment is raised as an inci-
dental question in a court of a Member State, that court may
determine that issue.

(e) if

is irreconcilable with a later judgment relating to
responsibility given in the Member State in

it
parental
which recognition is sought; or

Article 15

Grounds of non-recognition

(f)

1.
A judgment relating to a divorce,
marriage annulment shall not be recognised:

legal separation or

(a) if such recognition is manifestly contrary to the public
policy of the Member State in which recognition is sought;

it

if
is irreconcilable with a later judgment relating to
parental responsibility given in another Member State or
in the non-member country of the habitual residence of
fulfills the
the child provided that
conditions necessary for its recognition in the Member
State in which recognition is sought.

judgment

the later

(b) where it was given in default of appearance,

the
respondent was not duly served with the document
which instituted the proceedings or with an equivalent
document in sufficient time to enable the respondent to
arrange for his or her defence unless it is determined that
the respondent has accepted the judgment unequivocally;

if

Article 16

Prohibition of review of jurisdiction of court of origin

The jurisdiction of the court of the Member State of origin may
not be reviewed. The test of public policy referred to in Article
15(1)(a) abd (2)(a) may not be applied to the rules relating to
jurisdiction set out in Articles 2 to 8.

(c) if it is irreconcilable with a judgment given in proceedings
between the same parties in the Member State in which
recognition is sought;

Article 17

Differences in applicable law

(d) if

it is irreconcilable with an earlier judgment given in
in a non-member country
another Member State or
earlier
same parties, provided that
between the
judgment fulfills the conditions necessary for its recognition
in the Member State in which recognition is sought.

the

A judgment relating to the parental responsibility of the
2.
spouses given on the occasion of matrimonial proceedings as
referred to in Article 13 shall not be recognised:

(a) if such recognition is manifestly contrary to the public
policy of
the Member State in which recognition is
sought taking into account the best interests of the child;

The recognition of a judgment relating to a divorce,
legal
separation or a marriage annulment may not be refused
because the law of the Member State in which such recognition
is sought would not allow divorce, legal separation or marriage
annulment on the same facts.

Article 18

Non-review as to substance

Under no circumstances may a judgment be reviewed as to its
substance.

Article 19

Stay of proceedings

(b) if it was given, except in case of urgency, without the child
having been given an opportunity to be heard, in violation
of
the Member
State in which recognition is sought;

fundamental principles of procedure of

A court of a Member State in which recognition is sought of a
judgment given in another Member State may stay the
proceedings if an ordinary appeal against the judgment has
been lodged.

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SECTION 2

ENFORCEMENT

Article 20

Enforceable judgments

A judgment on the exercise of parental responsibility in respect
of a child of both parties given in a Member State and
enforceable in that Member State shall be enforced in
another Member State when, on the application of any
interested party, it has been declared enforceable there.

Article 21

Jurisdiction of local courts

Article 22

Procedure for enforcement

The procedure for making the application shall be
in which

the Member State

law of

1.
governed by the
enforcement is sought.

The applicant must give an address for service within the
2.
area of jurisdiction of the court applied to. However, if the law
of the Member State in which enforcement is sought does not
provide for the furnishing of such an address, the applicant
shall appoint a representative ad litem.

The application shall be submitted to the local courts

1.
having jurisdiction, as follows:

The documents referred to in Article 33 and 34 shall be

3.
attached to the application.

(cid:151) in Belgium,

the (cid:145)Tribunal de premiŁre instance(cid:146) or the
the (cid:145)Erstinstanzliche

(cid:145)Rechtbank van eerste aanleg(cid:146) or
Gericht(cid:146),

(cid:151) in the Federal Republic of Germany, the (cid:145)Familiengericht(cid:146),

(cid:151) in Greece, the (cid:145)(cid:204)(cid:239)(cid:237)(cid:239)(cid:236)(cid:229)º(cid:221)(cid:242) —æø(cid:244)(cid:239)(cid:228)ØŒ(cid:229)(cid:223)(cid:239)(cid:146),

(cid:151) in Spain, the (cid:145)Juzgado de Primera Instancia(cid:146),

(cid:151) in France, the presiding judge of the (cid:145)Tribunal de grande

instance(cid:146),

(cid:151) in Italy, the (cid:145)Corte d’appello(cid:146),

(cid:151) in Luxembourg,
d’arrondissement(cid:146),

the presiding judge of

the (cid:145)Tribunal

(cid:151) in the Netherlands, the presiding judge of the (cid:145)arrondis-

sementsrechtbank(cid:146),

(cid:151) in Austria, the (cid:145)Bezirksgericht(cid:146),

(cid:151) in Portugal,
Fam(cid:237)lia(cid:146),

the (cid:145)Tribunal de Comarca(cid:146) or (cid:145)Tribunal de

(cid:151) in Finland, the (cid:145)k(cid:228)r(cid:228)j(cid:228)oikeus/tingsr(cid:228)tt(cid:146),

(cid:151) in Sweden, the (cid:145)Svea hovr(cid:228)tt(cid:146).

local courts

The jurisdiction of

2.
in relation to an
application for enforcement shall be determined by reference
to the place of the habitual residence of the person against
whom enforcement is sought or by reference to the place of
habitual residence of any child to whom the application relates.

the places

Where neither of
first
subparagraph can be found in the Member State where
enforcement
local courts is
determined by reference to the place of enforcement.

referred to in the

the jurisdiction of

is sought,

3.
In relation to procedures referred to in Article 14(3), the
jurisdiction of local courts shall be determined by the internal
law of the Member State in which proceedings for recognition
or non-recognition are brought.

Article 23

Decision of the court

1.
The court applied to shall give its decision without delay.
The person against whom enforcement is sought shall not at
this
the proceedings be entitled to make any
submissions on the application.

stage of

The application may be refused only for one of

2.
reasons specified in Articles 15 and 16.

the

Under no circumstances may a judgment be reviewed as

3.
to its substance.

Article 24

Notice of the decision

The appropriate officer of the court shall without delay bring
to the notice of
the decision given on the
application in accordance with the procedure laid down by
the law of the Member State in which enforcement is sought.

the applicant

Article 25

Appeal against the enforcement decision

1.
If enforcement is authorised, the person against whom
enforcement is sought may appeal against the decision within
one month of service thereof.

If that person is habitually resident in a Member State
2.
other than that in which the decision authorising enforcement
was given, the time for appealing shall be two months and
shall run from the date of service, either on him or at his
residence. No extension of time may be granted on account
of distance.

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Article 26

Article 28

Courts of appeal and means of contest

Court of appeal against a judgment refusing enforcement

An appeal against the judgment authorising enforcement
1.
in accordance with the rules governing
shall be lodged,
procedure in contradictory matters, with the courts listed
below:

(cid:151) in Belgium,

the (cid:145)Tribunal de premiŁre instance(cid:146) or the
the (cid:145)Erstinstanzliche

(cid:145)Rechtbank van eerste aanleg(cid:146) or
Gericht(cid:146),

If the application for enforcement is refused, the applicant

1.
may appeal to the courts listed below:

(cid:151) in Belgium,

the (cid:145)Tribunal de premiŁre instance(cid:146) or the
the (cid:145)Erstinstanzliche

(cid:145)Rechtbank van eerste aanleg(cid:146) or
Gericht(cid:146),

(cid:151) in the Federal Republic of Germany, the (cid:145)Oberlandesgericht(cid:146),

(cid:151) in the Federal Republic of Germany, the (cid:145)Oberlandesgericht(cid:146),

(cid:151) in Greece, the (cid:145)¯(cid:246)(cid:229)(cid:244)(cid:229)(cid:223)(cid:239)(cid:146),

(cid:151) in Spain, the (cid:145)Audiencia Provincial(cid:146),

(cid:151) in France, the (cid:145)Cour d’appel(cid:146),

(cid:151) in Italy, the (cid:145)Corte d’appello(cid:146),

(cid:151) in Luxembourg, the (cid:145)Cour d’appel(cid:146),

(cid:151) in Greece, the (cid:145)¯(cid:246)(cid:229)(cid:244)(cid:229)(cid:223)(cid:239)(cid:146),

(cid:151) in Spain, the (cid:145)Audiencia Provincial(cid:146),

(cid:151) in France, the (cid:145)Cour d’appel(cid:146),

(cid:151) in Italy, the (cid:145)Corte d’appello(cid:146),

(cid:151) in Luxembourg, the (cid:145)Cour d’appel(cid:146),

(cid:151) in the Netherlands, the (cid:145)arrondissementsrechtbank(cid:146),

(cid:151) in the Netherlands, the (cid:145)Gerechtshof(cid:146),

(cid:151) in Austria, the (cid:145)Bezirksgericht(cid:146),

(cid:151) in Austria, the (cid:145)Bezirksgericht(cid:146),

(cid:151) in Portugal, the (cid:145)Tribunal de Rela(cid:231)ªo(cid:146),

(cid:151) in Portugal, the (cid:145)Tribunal de Rela(cid:231)ªo(cid:146),

(cid:151) in Finland, the (cid:145)Hovioikeus/Hovr(cid:228)tt(cid:146),

(cid:151) in Sweden, the (cid:145)Svea hovr(cid:228)tt(cid:146).

(cid:151) in Finland, the (cid:145)Hovioikeus/Hovr(cid:228)tt(cid:146),

(cid:151) in Sweden, the (cid:145)Svea hovr(cid:228)tt(cid:146).

2.

The judgment given on appeal may be contested only:

(cid:151) in Belgium, Greece, Spain, France, Italy, Luxembourg and in

the Netherlands, by an appeal in cassation,

(cid:151) in the Federal Republic of Germany, by a (cid:145)Rechts-

beschwerde(cid:146),

(cid:151) in Austria, by a (cid:145)Revisionsrekurs(cid:146),

(cid:151) in Portugal, by a (cid:145)recurso restrito (cid:224) matØria de direito(cid:146),

2.
The person against whom enforcement is sought shall be
summoned to appear before the appellate court. If such person
fails to appear, the provisions of Article 10 shall apply.

Article 29

Contest of the appeal decision

A judgment given on appeal provided for in Article 28 may be
contested only:

(cid:151) in Finland, by an appeal

to (cid:145)Korkein oikeus/h(cid:246)gsta

the Netherlands, by an appeal in cassation,

(cid:151) in Belgium, Greece, Spain, France, Italy, Luxembourg and in

domstolen(cid:146),

(cid:151) in Sweden, by an appeal to the (cid:145)H(cid:246)gsta domstolen(cid:146).

(cid:151) in the Federal Republic of Germany, by a (cid:145)Rechts-

beschwerde(cid:146),

Article 27

Stay of proceedings

the appellant,

is lodged may, on the
The court with which the appeal
application of
if an
ordinary appeal has been lodged against the judgment in the
Member State of origin or if the time for such appeal has not
yet expired. In the latter case, the court may specify the time
within which an appeal is to be lodged.

stay the proceedings

(cid:151) in Austria, by a (cid:145)Revisionsrekurs(cid:146),

(cid:151) in Portugal, by a (cid:145)recurso restrito (cid:224) matØria de direito(cid:146),

(cid:151) in Finland, by an appeal

to (cid:145)Korkein oikeus/h(cid:246)gsta

domstolen(cid:146),

(cid:151) in Sweden, by an appeal to the (cid:145)H(cid:246)gsta domstolen(cid:146).

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Article 30

Partial enforcement

1. Where a judgment has been given in respect of several
matters and enforcement cannot be authorised for all of them,
the court shall authorise enforcement for one or more of them.

An applicant may request partial enforcement of a

2.
judgment.

Article 31

Legal aid

An applicant who, in the Member State of origin, has benefited
from complete or partial legal aid or exemption from costs or
expenses shall be entitled, in the procedures provided for in
Articles 21 to 24, to benefit from the most favourable legal aid
or the most extensive exemption from costs and expenses
provided for by the law of the Member State addressed.

Article 32

Security, bond or deposit

No security, bond or deposit, however described, shall be
required of a party who in one Member State applies for
enforcement of a judgment given in another Member State
on the ground that he or she is a foreign national or that he
or she is not habitually resident in the Member State in which
enforcement is sought.

SECTION 3

COMMON PROVISIONS

Article 33

Documents

A party seeking or contesting recognition or applying for

1.
enforcement of a judgment shall produce:

(a) a copy of

the judgment which satisfies the conditions

necessary to establish its authenticity;

(b) where appropriate, a document showing that the applicant
legal aid in the Member State of origin.

is in receipt of

2.
In addition, in the case of a judgment given in default, the
party seeking recognition or applying for enforcement shall
produce:

A person requiring the updating of

the civil-status
3.
records of a Member State, as referred to in Article 14(2),
shall also produce a document indicating that the judgment
is no longer subject to a further appeal under the law of the
Member State where the judgment was given.

Article 34

Other documents

A party applying for enforcement shall produce, besides the
documents referred to in Article 33, documents of whatever
nature which establish that, according to the law of
the
Member State of origin, the judgment is enforceable and has
been served.

Article 35

Absence of documents

If the documents specified in Article 33(1)(b) or (2) are
their
it considers
information before it, dispense with

1.
not produced,
production, accept equivalent documents or,
that
their production.

the court may specify a time for

it has sufficient

if

2.
If the court so requires, a translation of such documents
shall be furnished. The translation shall be certified by a person
qualified to do so in one of the Member States.

Article 36

Legalisation or other similar formality

No legalisation or other similar formality shall be required in
respect of the documents referred to in Articles 33, 34 and
35(2) or in respect of a document appointing a representative
ad litem.

CHAPTER IV

TRANSITIONAL PROVISIONS

Article 37

The provisions of this Regulation shall apply only to legal
1.
proceedings instituted, to documents formally drawn up or
registered as authentic instruments and to settlements which
have been approved by a court in the course of proceedings
after its entry into force.

(a) the original or certified true copy of the document which
establishes that the defaulting party was served with the
document instituting the proceedings or with an equivalent
document; or

(b) any document indicating that the defendant has accepted

the judgment unequivocally.

2.
Judgments given after the date of entry into force of this
Regulation in proceedings instituted before that date shall be
recognised and enforced in accordance with the provisions of
Chapter III if jurisdiction was founded on rules which accorded
with those provided for either in Chapter II of this Regulation
or in a convention concluded between the Member State of
origin and the Member State addressed which was in force
when the proceedings were instituted.

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CHAPTER V

GENERAL PROVISIONS

Article 38

(cid:151) the Luxembourg Convention of 8 September 1967 on the
relating to the Validity of

Recognition of Decisions
Marriages,

Relation with other Conventions

(cid:151) the Hague Convention of 1 June 1970 on the Recognition

of Divorces and Legal Separations,

1.
Subject to the provisions of Articles 37, 40 and paragraph
2 of this Article, this Regulation shall, for the Member States
which are parties to it, supersede conventions existing at the
time of entry into force of this Regulation which have been
concluded between two or more Member States and relate to
matters governed by this Regulation.

2.
Finland and Sweden shall have the option of declaring
that the Convention of 6 February 1931 between Denmark,
Finland, Iceland, Norway and Sweden comprising international
private law provisions on marriage, adoption and guardianship,
together with the Final Protocol thereto, will apply, in whole or
in part, in their mutual relations, in place of the rules of this
Regulation. Such declarations shall be annexed to this Regu-
lation and published in the Official
the European
Communities. They may be withdrawn, in whole or in part, at
any moment by the said Member States.

Journal of

The principle of non-discrimination on the grounds of
nationality between citizens of the Union shall be respected.

jurisdiction in any future agreement

The rules of
to be
concluded between the Member States referred to in the first
subparagraph which relate to matters governed by this Regu-
lation shall be in line with those laid down in this Regulation.

Judgments handed down in any of the Nordic States which
have made
first
the declaration provided for
subparagraph under a forum of jurisdiction corresponding to
one of those laid down in Chapter II, shall be recognised and
enforced in the other Member States under the rules laid down
in Chapter III thereof.

in the

3. Member States shall send to the Commission:

(a) a copy of the agreements and uniform laws implementing
first and third

referred to in the

these agreements
subparagraphs of paragraph 2;

(cid:151) the European Convention of 20 May 1980 on Recognition
and Enforcement of Decisions concerning Custody of
Children and on Restoration of Custody of Children,

(cid:151) the Hague Convention of 19 October 1996 on Jurisdiction,
applicable Law, Recognition, Enforcement and Cooperation
in respect of Parental Responsibility and measures for the
Protection of Children, provided that the child concerned is
habitually resident in a Member State.

Article 40

Extent of effects

The agreements and conventions referred to in Articles
1.
38(1) and 39 shall continue to have effect in relation to matters
to which this Regulation does not apply.

They shall continue to have effect in respect of judgments
2.
given and documents formally drawn up or registered as
authentic before the entry into force of this Regulation.

Article 41

Agreements between Member States

1.
Two or more Member States may conclude agreements or
arrangements to amplify this Regulation or to facilitate its
application.

Member States shall send to the Commission:

(a) a copy of the draft agreements; and

(b) any denunciations of, or amendments to, these agreements.

(b) any denunciations of, or amendments to, those agreements

or uniform laws.

In no circumstances may the agreements or arrangements

2.
derogate from Chapters II or III.

Article 39

Relation with certain multilateral conventions

In relations between the Member States which are parties to it,
this Regulation shall
the following
conventions in so far as they concern matters governed by
this Regulation:

take precedence over

Article 42

Treaties with the Holy See

1.
This Regulation shall apply without prejudice to the Inter-
national Treaty (Concordat) between the Holy See and Portugal,
signed at the Vatican City on 7 May 1940.

(cid:151) the Hague Convention of 5 October 1961 concerning the
Powers of Authorities and the Law applicable in respect of
the Protection of Minors,

2.
Any decision as to the invalidity of a marriage taken
under the Treaty referred to in paragraph 1 shall be recognised
in the Member States on the conditions laid down in Chapter
III.

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The provisions laid down in paragraphs 1 and 2 shall
3.
also apply to the following International Treaties (Concordats)
with the Holy See:

(cid:151) Concordato lateranense of 11 February 1929 between Italy
and the Holy See, modified by the agreement, with
additional Protocol signed in Rome on 18 February 1984,

(cid:151) Agreement between the Holy See and Spain on legal affairs

of 3 January 1979.

4. Member States shall send to the Commission:

(a) a copy of the Treaties referred to in paragraphs 1 and 3;

(b) any denunciations of or amendments to those Treaties.

(d) any reference to the rules of the requested Member State
in which

shall refer to the rules of
jurisdiction, recognition or enforcement is invoked.

the territorial unit

CHAPTER VI

FINAL PROVISIONS

Article 44

Review

No later than five years after the date of the entry into force of
this Regulation, and every five years thereafter, the Commission
shall present to the European Parliament, the Council and the
Economic and Social Committee a report on the application of
this Regulation, and in particular Articles 38, 41, 42 and 44
thereof. The report shall be accompanied if need be by
proposals for adaptations.

Article 43

Article 45

Member States with two or more legal systems

With regard to a Member State in which two or more systems
of law or sets of rules concerning matters governed by this
Regulation apply in different territorial units:

Amendment of lists of courts and redress procedures

The lists of courts and redress procedures in Articles 21(1),
26(1) and (2) and 29 may be amended by decision of the
Council.

(a) any reference to habitual residence in that Member State

shall refer to habitual residence in a territorial unit;

(b) any reference to nationality shall refer to the territorial unit

designated by the law of that State;

(c) any reference to the authority of a Member State having
received an application for divorce or legal separation or
for marriage annulment shall refer to the authority of a
territorial unit which has received such an application;

Article 46

Entry into force

This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.