The recast of the Brussels IIa Regulation: the sweet and sour fruits of unanimity
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The recast of the Brussels IIa Regulation: the sweet and sour fruits of unanimity Boriana Musseva1
© Europäische Rechtsakademie (ERA) 2020
Abstract Council Regulation (EU) 2019/1111 recasts Council Regulation (EC) No 2201/2003 as of 1 August 2022 at eight major levels: (1) international jurisdiction, (2) hearing of the child, (3) international child abduction, (4) abolition of exequatur, (5) enforcement, (6) authentic instruments and agreements, (7) placement of children in another member State and (8) cooperation. All decisions falling within its scope of application shall be exempt of exequatur, but at the stage of enforcement grounds for refusal of recognition and enforcement may still be raised. The best interests of the child remains the paramount consideration of this EU instrument. Keywords Recast Brussels IIa Regulation
1 Introduction 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 1347/2000 (hereafter “BIIaR”) is considered to be the cornerstone of the judicial cooperation in family matters in the European Union.1 After ten years of its application in 2014 the Commission assessed its effect in practice2 and two years later came out with a Proposal for Council Regulation on jurisdiction, the recognition and enforcement of judgments 1 COM (2016) 411, p. 1, COM(2014), 225, p. 1. 2 COM(2014) 225.
B Associate Professor Sofia University, Doctor, Attorney-at-law B. Musseva [email protected]
1
15 Tsar Osvoboditel Blvd, 1504 Sofia, Bulgaria
B. Musseva
in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) of 30 June 2016.3 With regard to Art. 81(3) of the Treaty on the Functioning of the European Union (hereafter “TFEU”) the recast Regulation has to be adopted in accordance with the special legislative procedure where the Council acts unanimously after consulting the European Parliament. The negotiation process lasted for approximately three years leading to the Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction was published in Official Journal on the 2 June 2019 [2019] OJ L 178 p. 1-115 (hereafter “BIIaRR”4 ). Pursuant to its Art. 100(1) the Recast Regulation shall apply to legal proceedings instituted, to authentic instruments formally drawn up or registered and to agreements registered on or after 1 August 2022. The aim of this article is to examine and highlight the major amendments following the structure of the BIIaRR trying to evaluate their added value in the framework of the Regulation’s objectives and the developments so far.
2 Scope and definitions 2.1 Scope The major amendments in the scope concern the relation between the BIIaRR and the Convention of 25 October 1980 on the Civil As
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