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Jurisdiction, recognition and enforcement of judgements in matrimonial and parental responsibility matters (Brussels IIa Regulation) - Recast

Overall state of play:

• Evaluation finalised; COM (2014) 225, 15.04.2014
• Commission Proposal: Adopted, COM (2016) 411, 30.06.2016
• Legal act: Council Regulation (EU) 2019/1111 of 25.06.2019, became applicable 01.08.2022

State of play, main conclusions, outlook

The Commission evaluated Regulation (EC) No 2201/2003 in 2014 and presented in 2016 a proposal for a recast of the Regulation (COM(2016) 411 final).

Building on the results of the evaluation, the proposal provides for:

- The procedures for the return of abducted children, on custody and access, on the cross-border placement of children and on child protection measures in cross-border cases will be shorter and more efficient.

- Children are given the opportunity to be heard in these proceedings.

- The free circulation of judgments in these areas will be enhanced by abolishing the requirement of a specific authorisation of enforcement of a judgment (requirement of exequatur).

- the rules on cross-border cooperation of competent authorities in this area are rendered more explicit and clearer, thereby enabling these authorities to fulfil incoming requests more quickly and easily.

Estimated savings and benefits

It is expected that the new rules will reduce the amount of working time that Central Authorities and child protection authorities need to fulfil a request under the Regulation. For instance, this means obtaining consent in the placement procedures is reduced to three months instead of more than the current six months. Clarifying rules on cross-border cooperation for obtaining social reports and introducing a time limit of maximum eight weeks to provide the report will also shorten the procedures.

In international child abduction cases, the limitation of the number of ordinary appeals to one will reduce the length of the proceedings to less than 20 weeks maximum in those Member States, which have not yet taken measures under national law from several months, sometimes more than a year.

It is expected that citizens will need fewer billable hours of specialised legal advice in those proceedings. E.g. with the proposed abolition of exequatur, delays (taking up to several months) and costs (up to EUR 4 000) relating to obtaining it would be eliminated.

The proposed amended procedure for the return of the child in case of abduction would also reduce the costs of specialised legal advice for parents (between EUR 1 000 and 4 000).

State of Play:

• Finalised, COM (2014) 225, 15.04.2014

Scope:

Regulation (EC) No 2201/2003

Evaluation findings:

The evaluation found that while the Regulation is functioning well overall and is delivering value to EU citizens, a number of legal issues are hampering at times the operational functioning of the instrument. The current legal text is insufficiently clear or incomplete on some points, for example in regard of child return procedure or cooperation between the Central Authorities on parental responsibility matters.

The evaluation showed that between the two major areas covered by the Regulation, the matrimonial and parental responsibility matters, the latter have caused acute problems.

Estimated savings and benefits

The evaluation questioned the overall efficiency of certain aspects of the child-related proceedings. There are excessive and undue delays arising from the way the existing procedures are formulated or applied in matters concerning parental child abduction, cross-border placement of children, recognition and enforcement of decisions and cooperation between (central and other) national authorities. This has had a negative impact on parent-child relationships and the best interests of children.

The vague description of the cooperation between Central Authorities has often led to delays of several months or even to the non-fulfilment of requests - also detrimental to children's welfare.

In addition, the requirement of exequatur generated average delays per case of several months and costs reaching up to EUR 4 000 for citizens, including between EUR 1 000 - 4 000 per case for the work of specialised lawyers. Decisions given in another Member State are often not enforced or only with significant delays.

For the Member States, on the other hand, the Regulation itself has generated very limited costs. These costs mainly relate to the operation of the Central Authorities.

State of Play:

• Adopted, COM (2016)411, 14.06.2016

Which objective(s) does the Commission pursue?

The proposal provides for legal certainty, clarity and consistency for children affected by cross-border proceedings concerning them and for their parents. The proposal from the Commission includes the following objectives:

- To enhance the operation of the 1980 Hague Child Abduction Convention among Member States by implementation measures at supranational level.

- To strengthen children's rights in procedures concerning them by approximating the Regulation to the rules of the United Nations Convention on the Rights of the Child and the European Charter of Fundamental Rights, which provide for binding guidelines for the implementation and application of the Regulation.

- Clarifying the current system, simplifying and making the procedures for the return of abducted children, on custody and access, on the cross-border placement of children and on child protection measures in cross-border cases more efficient

Estimated savings and benefits

The proposal would lead to cost savings for European citizens engaged in cross-border litigation.

The abolition of exequatur would allow them to save the major part of the current average costs of EUR 2 200 for the procedure. In addition, it would contribute to saving costs by parents seeking enforcement as they would not necessarily need to look for highly specialised lawyers with knowledge of the foreign enforcement system.

Even though it is not possible to estimate in how many cases such savings could be achieved, every 10 hours of work of a specialised lawyer generate costs between EUR 1 000 and 4 000.

There could be a small reduction of costs for Central Authorities. If procedures contain unified rules or are shorter at the enforcement stage, there should be fewer requests for assistance, and/or assistance would be required for a shorter period. Given the different organisation of work and remuneration of the Central Authorities' staff, it is not possible to quantify such savings.

The reformulation of the cooperation rule is likely to save costs. Detailed description of the cooperation of the Central Authorities allows for a one-stop-shop and contains a time limit for responding to requests for assistance, in particular for social reports. The obligations can thus be fulfilled more quickly in a single, streamlined procedure under this Regulation, shortening the proceedings for which the assistance is needed and reducing the resources necessary to process a request.

State of Play:

• Council Regulation (EU) 2019/1111 of 25.06.2019

Outcome of Legislative Procedure

On 7 December 2018, the Council unanimously agreed on a general approach on the proposal for the Recast of the Brussels IIa Regulation. On 19 December 2018, the Council decided to re-consult the European Parliament given the changes in the text as compared to the Commission’s original proposal. The European Parliament adopted its second opinion at the plenary session of 11-14 March 2019.

The Commission considers that the main objectives of the recast proposal will be achieved with the adoption of the Council compromise text. Notably, (i) full abolition of exequatur will ensure free circulation of judgments, (ii) the rights of the child will be better protected through a new obligation on the hearing of a child, (iii) enhanced effectiveness of the procedures will be achieved through clear deadlines for the child’s return procedure and a minimum harmonisation of the refusal/suspension grounds for enforcement. Finally, (iiii) clearer rules on cooperation between Central Authorities will increase their effectiveness.

However, the Council text differs from the Commission's proposal to the extent that there is not one uniform mechanism for recognition and enforcement without exequatur but a twofold system of abolition of exequatur, in which privileged decisions, which are important to a number of Member States, circulate under even more generous conditions (e.g. irreconcilability being the only available refusal ground).

In addition, the Council text includes an indicative time limit for the actual enforcement of a decision ordering the return of a child. In case the enforcement has not occurred after the lapse of six weeks from the moment of initiating the enforcement proceedings, the party seeking enforcement or the Central Authority of the Member State of enforcement shall have the right to request a statement of the reason for the delay from the enforcement authority. The Commission proposed to have a similar provision applied to enforcement of all decisions.

The Brussels IIa Regulation (Recast) was adopted on 25 June 2019 and became applicable from 1 August 2022 in all Member States except Denmark. Exceptionally Articles 92, 93 and 103 applied from 22 July 2019.