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2201/2003 In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: (a) in whose territory: - the spouses are habitually resident, or - the spouses are habitually resident, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the respondent is habitually resident, or - the respondent is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses. (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.
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"Human Rights and the European Union Regulations on Private International Law : the needs to protect the right of family members "
Elisabetta BergaminiAssociate Professor of EU Law
University of Udine
• Council Regulation (EC) No Council Regulation (EC) No 2201/2003 of 27 November 2003 2201/2003 of 27 November 2003 concerning jurisdiction and the concerning jurisdiction and the recognition and enforcement of recognition and enforcement of judgments in matrimonial judgments in matrimonial matters and the matters of matters and the matters of parental responsibility, repealing parental responsibility, repealing Regulation (EC) No 1347/2000Regulation (EC) No 1347/2000
2201/20032201/2003• In matters relating to divorce, legal separation or marriage annulment, jurisdiction In matters relating to divorce, legal separation or marriage annulment, jurisdiction
shall lie with the courts of the Member Stateshall lie with the courts of the Member State• (a) in whose territory:(a) in whose territory:• - the spouses are habitually resident, or- the spouses are habitually resident, or• - the spouses were last habitually resident, insofar as one of them still resides - the spouses were last habitually resident, insofar as one of them still resides
there, orthere, or• - the respondent is habitually resident, or- the respondent is habitually resident, or• - in the event of a joint application, either of the spouses is habitually resident, or- in the event of a joint application, either of the spouses is habitually resident, or• - the applicant is habitually resident if he or she resided there for at least a year - the applicant is habitually resident if he or she resided there for at least a year
immediately before the application was made, orimmediately before the application was made, or• - the applicant is habitually resident if he or she resided there for at least six - the applicant is habitually resident if he or she resided there for at least six
months immediately before the application was made and is either a national of months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;has his or her "domicile" there;
• (b) of the nationality of both spouses or, in the case of the United Kingdom and (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.Ireland, of the "domicile" of both spouses.
2201/20032201/2003• Article 8Article 8• General jurisdictionGeneral jurisdiction• 1. The courts of a Member State shall 1. The courts of a Member State shall
have jurisdiction in matters of have jurisdiction in matters of parental responsibility over a child parental responsibility over a child who is habitually resident in that who is habitually resident in that Member State at the time the court is Member State at the time the court is seized.seized.
2201/20032201/2003• Problems:Problems:• favor divortiifavor divortii• legal kidnapping; legal kidnapping; • recognition of judgements; recognition of judgements; • protection of rights of family protection of rights of family
members and in particular of rights members and in particular of rights of the childof the child
2201/2003 and 2001 2201/2003 and 2001 Charter of fundamental Charter of fundamental
rightsrights• (33) This Regulation recognises the (33) This Regulation recognises the
fundamental rights and observes the fundamental rights and observes the principles of the Charter of Fundamental principles of the Charter of Fundamental Rights of the European Union. In Rights of the European Union. In particular, it seeks to ensure respect for particular, it seeks to ensure respect for the fundamental rights of the child as set the fundamental rights of the child as set out in Article 24 of the Charter of out in Article 24 of the Charter of Fundamental Rights of the European Fundamental Rights of the European Union,Union,
Charter of fundamental Charter of fundamental rightsrights
• Article 7Article 7
• Respect for private and family lifeRespect for private and family life• Everyone has the right to respect for Everyone has the right to respect for
his or her private and family life, his or her private and family life, home and communications.home and communications.
Charter of fundamental Charter of fundamental rightsrights
• Article 9Article 9• Right to marry and right to found a Right to marry and right to found a
familyfamily• The right to marry and the right to found The right to marry and the right to found
a family shall be guaranteed in a family shall be guaranteed in accordance with the national laws accordance with the national laws governing the exercise of these rights.governing the exercise of these rights.
Charter of fundamental Charter of fundamental rightsrights
• Article 24Article 24• The rights of the childThe rights of the child• 1. Children shall have the right to such protection and care as 1. Children shall have the right to such protection and care as
is necessary for their well-being. They may express their views is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and which concern them in accordance with their age and maturity.maturity.
• 2. In all actions relating to children, whether taken by public 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests authorities or private institutions, the child's best interests must be a primary consideration.must be a primary consideration.
• 3. Every child shall have the right to maintain on a regular 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.or her parents, unless that is contrary to his or her interests.
2201/20032201/2003• Case law: Case law:
• Hadadi : double nationality. Hadadi : double nationality. Evaluation of rights of the wife.Evaluation of rights of the wife.
• Purrucker: provisional measuresPurrucker: provisional measures
2201/20032201/2003• Mercredi: Mercredi: habitual residence habitual residence • The unmarried father issued proceedings 2 days The unmarried father issued proceedings 2 days
after the mother removed the child to France. The after the mother removed the child to France. The High Court ordered the return of the child and made High Court ordered the return of the child and made final Declarations that the child was habitually final Declarations that the child was habitually resident in England at the time the proceedings resident in England at the time the proceedings commenced and that her continued retention in commenced and that her continued retention in France was in breach of rights of custody of the France was in breach of rights of custody of the father and the court. The French Court concluded father and the court. The French Court concluded that the father had no rights of custody at the time of that the father had no rights of custody at the time of removal and rejected the Hague application. removal and rejected the Hague application.
1259/20101259/2010
• COUNCIL REGULATION (EU) No COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010 1259/2010 of 20 December 2010
implementing enhanced implementing enhanced cooperation in the area of the cooperation in the area of the law applicable to divorce and law applicable to divorce and legal separationlegal separation
1259/20101259/2010- Choice of lawChoice of law- Application to same-sex couplesApplication to same-sex couples- No provisions on children (see Hague No provisions on children (see Hague
Convention of 19 October 1996 on Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect Enforcement and Co-operation in Respect of Parental Responsibility and Measures of Parental Responsibility and Measures for the Protection of Children) for the Protection of Children)
• COUNCIL REGULATION (EC) No COUNCIL REGULATION (EC) No 4/2009 4/2009 of 18 December 2008 of 18 December 2008 on on jurisdiction, applicable law, jurisdiction, applicable law, recognition and enforcement of recognition and enforcement of decisions and cooperation in decisions and cooperation in matters matters relating to maintenance relating to maintenance obligationsobligations
• REGULATION (EU) No 650/2012 OF THE REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL COUNCIL of 4 July 2012 of 4 July 2012 on jurisdiction, on jurisdiction, applicable law, recognition and enforcement applicable law, recognition and enforcement of decisions and acceptance and of decisions and acceptance and enforcement of authentic instruments in enforcement of authentic instruments in matters of succession and on the creation of matters of succession and on the creation of a European Certificate of Successiona European Certificate of Succession
• Proposal for a Council Regulation on jurisdiction, applicable law and the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 of 16 March 2011;property regimes, COM(2011) 126 of 16 March 2011;
• Proposal for a Council Regulation on jurisdiction, applicable law and the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011) 127 of 16 March consequences of registered partnerships, COM(2011) 127 of 16 March 2011.2011.
• Proposal for a Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting the free movement of citizens and THE COUNCIL on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public businesses by simplifying the acceptance of certain public documents in the European Union documents in the European Union COM(2013) 228 finalCOM(2013) 228 final
Case studyCase studyJohn, Croatian citizen and Chris, UK citizen, both resident in the Netherlands, John, Croatian citizen and Chris, UK citizen, both resident in the Netherlands,
get married in the Netherlands in 2010. They decide to go on living together get married in the Netherlands in 2010. They decide to go on living together in the Netherlands, where they both worked at the time.in the Netherlands, where they both worked at the time.In 2012 they adopt a baby in the Netherlands and Chris goes back to live in In 2012 they adopt a baby in the Netherlands and Chris goes back to live in the UK. He also seeks a work in that Country and they go on meeting in the the UK. He also seeks a work in that Country and they go on meeting in the UK during weekends and spending holidays together in the Netherlands.UK during weekends and spending holidays together in the Netherlands.In January 2014 Chris starts a proceeding in the UK to divorce from John In January 2014 Chris starts a proceeding in the UK to divorce from John asking also for parental custody of the baby.asking also for parental custody of the baby.
Has the UK judge jurisdiction under 2201/2003 regulation? Which is the Has the UK judge jurisdiction under 2201/2003 regulation? Which is the applicable law to divorce and to parental responsibility? How is the interest applicable law to divorce and to parental responsibility? How is the interest of the child to be considered ?of the child to be considered ?In March 2014 John starts a similar proceeding in the Netherlands.In March 2014 John starts a similar proceeding in the Netherlands.Would the Netherlands judge be competent?Would the Netherlands judge be competent?
Case studyCase study
What if they had chosen in 2012 to apply Croatian law to their What if they had chosen in 2012 to apply Croatian law to their divorce? (the choice was made on a table napkin during their divorce? (the choice was made on a table napkin during their wedding, hand written by John, dated and signed by both of wedding, hand written by John, dated and signed by both of them).them).
What if John in 2013 kidnaps the baby and takes him back to live What if John in 2013 kidnaps the baby and takes him back to live with him in the Netherlands?with him in the Netherlands?
What if they were originally John and Jane (Jane became Robert inWhat if they were originally John and Jane (Jane became Robert in2013) and they got married in Italy?2013) and they got married in Italy?
