Opinion of the Economic and Social Committee on the '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: 1999-10-20
Institutions: European Economic and Social Committee
Subjects: custody, enforcement of ruling, family law, jurisdiction, matrimonial law, parental responsibility

20.12.1999

EN

Official Journal of the European Communities

C 368/23

Opinion of the Economic and Social Committee on the ‘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 368/09)

On 12 July, the Council decided to consult the Economic and Social Committee, under Article 262 of the
Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 30 September 1999. The rapporteur was
Mr Braghin.

At its 367th plenary session (meeting of 20 October 1999), the Economic and Social Committee adopted
the following opinion by 53 votes to four, with one abstention.

1. Content and background of the proposal for a Council

Regulation

1.1.
The proposal arises from the need to replace the
Convention adopted by the Council and signed by all the
Member States on 28 May 1998, with Community legislation,
as required by the Amsterdam Treaty.

The Commission has taken the substance of

1.2.
the
Convention and its explanatory report and amended any
provisions that were incompatible with the proposed instru-
ment and the guidelines for judicial cooperation subsequent to
the Amsterdam Treaty.

1.3.
The form chosen for the instrument — a Regulation
— is warranted by the need to apply strictly defined, harmon-
ised rules for the direct, uniform and mandatory implemen-
tation of precise, unconditional provisions in specific areas
such as jurisdiction, recognition and enforcement of orders on
the dissolution of the marriage link and custody of children,
and by the need for a common, early implementation date to
be set for the 12 countries to which the new Chapter IV of the
TEC applies.

As the subject matter now falls within the ambit of
1.4.
judicial cooperation in civil matters (Art. 65) and the new
Chapter IV of the Treaty establishing the European Com-
munity, the instrument must be adopted using the procedure
provided for under Treaty Article 67, whereby during a
transitional period of five years following the entry into force
of the Treaty of Amsterdam, the Council is to act unanimously.

The purpose of the proposal

1.5.
is to harmonise the
rules of international private law in the Member States for
jurisdiction on annulment, divorce, separation and parental
responsibility for the children of both spouses, and to provide
a simplified procedure to facilitate the rapid and automatic
recognition and enforcement of relevant judgments (1).

(1) The term ‘judgment’ is used to cover a range of other, more
technical and legally-correct terms, such as decree, order or
decision, as explained in Article 13. The array of national systems
in this area currently makes it difficult to use more specific
terminology, such as ‘provision’.

1.6.
The proposal fills a gap in the application of the 1968
Brussels Convention (Article 1 of which explicitly excludes
matters relating to the law of persons) while restricting itself
to the aspects mentioned in the paragraph 1.5 above.

1.7. With the aim of introducing uniform standards on
conflicts of jurisdiction and simplifying formalities governing
the rapid and straightforward recognition and enforcement of
the relevant judgments, Chapter II defines the objective criteria
adopted for forums of jurisdiction, authority to make judg-
ments on parental responsibility over children of both spouses,
provided this is connected with matrimonial proceedings,
examination as to jurisdiction and admissibility, lis pendens and
provisional and protective measures.

1.8. With the objective of speeding up the recognition and
legal separation or
enforcement of judgments on divorce,
marriage annulment and parental responsibility, reducing to a
minimum grounds for non-recognition, Chapter III establishes
the principle of automatic recognition, grounds of non-
recognition, prohibition of review of jurisdiction of the court
of origin and non-review as to substance, as well as the
procedure for enforcement, notice of the decision and appeal
against the enforcement decision (court of appeal and means
of contest).

1.9.
The common, transitional and general provisions are
designed to protect the rights of appellants, guarantee genuine
applicability of the date of entry into force of the Regulation,
regulate
and
implementation agreements between Member States, while
ensuring respect for international treaties (Concordats) con-
cluded by Portugal, Italy and Spain with the Holy See.

relations with international

conventions

C 368/24

EN

Official Journal of the European Communities

20.12.1999

The final provisions state that the Commission shall
1.10.
monitor application of
the Regulation and shall submit
proposals for amendments if need be, at the end of a five-year
period.

include children of previous marriages and adopted children,
who risk further suffering in view of the fact that they are
specifically excluded from the Regulation. The Committee
hopes, however, that both national and Community legislation
will
increasingly take on board the need to include better
protection of the weaker party.

2. General comments

2.1.
The act incorporating the convention adopted by the
Council on 28 May 1998 builds on proposals and projects
launched in 1994. Progress made by the European Union in
the meantime ought
to have warranted more ambitious
proposals, both as regards the scope of application and a
content better suited to achieving genuine harmonisation of
the legal framework, at least as far as procedure is concerned.
While recognising the value of safeguarding social, cultural,
religious and traditional diversity across the Member States,
attention should be paid to the European public’s growing
demand for equivalent guarantees to those they hold before
the courts in their own country in all other Member States.

2.2.
The decision to opt for a Regulation is wholly justified
by the content of the proposal and the need for a rapid
approval process with guarantees regarding deadlines and
content. The Committee notes, however, that the Regulation
covers a very limited field, and consequently hopes that the
action plan approved in Vienna in November 1998 will be
implemented (1).

2.3.
The scope of the Regulation is limited to procedural
aspects regarding the jurisdiction, recognition and implemen-
tation of orders on marriage annulment, divorce and separ-
ation, and parental responsibility for children of both spouses.

2.3.4. With regard to the implementation of the Regulation,
the Committee would reiterate the need to design measures to
protect the best interests of minors and uphold their funda-
mental rights, in accordance with international law. Here the
Committee would refer back to the principles already expressed
in its opinion CES 976/98, of 2 July 1998.

2.4.
The term ‘courts’ refers both to Member State judicial
authorities with jurisdiction in these matters, and to adminis-
trative authorities whose jurisdiction is officially recognised in
some Member States. This situation, though compatible with
the national legal systems, is however, worrying. The Com-
mittee would prefer uniformity for the legal bodies authorised
and designed to deal with these sensitive matters, to ensure
they are appropriately specialised and professional.

2.5.
The concept of parental authority and responsibility
varies from one Member State legislation to another. Since
protecting the legal rights of children is the top priority, and
in order to avoid differing levels of protection for EU citizens
in this sensitive area,
the Committee calls for common
parameters to be defined for all the Member States, while
respecting their social, cultural and religious diversity and
national traditions. In particular, this would seem to be a
pre-requisite for implementation of Article 3 of the Regulation.

On such sensitive matters, and to ensure the Euro-
2.3.1.
pean public is provided with a consistent degree of freedom,
security and justice (Article 2 of the Treaty establishing the
European Community), enforcement procedures should be
harmonised as soon as possible, particularly as regards time-
frames (final deadlines for requests, appeals against judgments,
etc.).

2.6.
To the detriment of legal certainty and the length of
proceedings, the Regulation disregards the need to establish a
definite, regulatory time-frame for all stages of the proceedings
regarding the debarment or prescription of instruments. In
view of the sensitivity of the subject matter, the Committee
hopes such a time-frame will be written into the Regulation
wherever possible, and that all the responsible bodies will be
made accountable.

The need to harmonise the law, with a view to
2.3.2.
speeding up legal proceedings, should be a key priority in
European Union action, and should be applied to all other
procedural aspects and built into a specific Commission action
plan.

2.3.3.
The principle of protecting the weaker party should
be heavily underlined, and it is thus hoped that the Regulation’s
provisions on parental responsibility will be extended to

The need to bring provisional and protective fall-back
2.7.
provisions (Article 12) into the equation for the purposes of
personal protection is understandable. However, this appears
to give too much leeway for the application of national law, as
it surreptitiously raises related issues that are not covered by
the Regulation. The Committee would recommend a more
precise, restrictive wording, so as to prevent the Regulation
from being abused or called into question. At all events, it is
necessary to safeguard the minor’s right to be heard in
cases where urgent provisions are required regarding parental
responsibility.

(1) The plan commits the Commission to drafting proposals to
complete the legislative framework for marriage and child custody,
and more generally, for the civil private law provisions governing
matrimonial property rights.

Nor will it have escaped the Commission that in the
2.8.
Member States partnerships are not always formalised by
marriage.

20.12.1999

EN

Official Journal of the European Communities

C 368/25

The Committee would ask the Commission to consider
seriously what measures are needed to ensure that, in the event
that these partnerships end and decisions are taken as to
responsibility for the children of such families, these decisions
are automatically recognised and can be enforced. The differ-
ence in treatment which will now arise because this proposal
applies only to marriages requires attention in the interests of
all our children.

3. Specific comments

The Committee feels that, in order to make for ease of
3.1.
comprehension and implementation, some changes are needed
to the text of the proposal. In view of the technical nature of
the Regulation, these should also be made in the form of
amendments.

3.2. Article 10(1)

For a more precise wording, this Article should include more
accurate legal terminology, as follows:

‘Where a respondent does not enter an appearance, the
court with jurisdiction shall stay the proceedings so long
as it can be shown that the respondent has not received
the document instituting the proceedings or an equivalent
document, or that notice to appear was not served within
the time-frame established by law to allow him to arrange
his defence.’

3.3. Article 12

The expression ‘in that State’ is vague. Consequently, a more
precise wording should be found in order to identify exactly
who is covered by this provision.

Brussels, 20 October 1999.

3.4. Article 15(1)(b)

Replace ‘unequivocally’ with ‘in its entirety’.

3.5. Article 23

In order to speed up the proceedings and provide legal
certainty, a definite, reasonable time-frame should replace the
phrase ‘without delay’.

3.6. Article 24

In order to provide a final deadline for contesting the decision,
the Article should be reworded as follows:

‘The appropriate officer of
the court shall notify the
applicant of the decision given on application within a
period of…, in accordance with the procedure laid down
by the Member State in which enforcement is sought, and
the person against whom enforcement is sought shall be
notified within a period of…’

3.7. Article 25(2)

In order to avoid any implication that there may — theoreti-
cally — be other reasons why the appeal deadline may be
extended, either the last sentence should be deleted, or the
previous sentence reworded as follows:

‘If that person is habitually resident in a Member State
other than that in which the decision authorising enforce-
ment was given, the time for appealing shall be two
months, regardless of distance, and shall run…’

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI