Brussels II

Alegría Borras has been Professor of Private International Law at the University of Barcelona since 1985, and was previously at the University of Cordoba and at the Autonomous University of Barcelona. She was a professor at the Academy of International Law at The Hague in 1994, having also been Director of Studies there in 1989. She will be the guest professor for a new course there in 2005.

She has been Spain's representative at the Hague Conference on Private International Law since 1987, and also Spain's representative for cooperation on justice (civil matters) in the European Union since 1993 and rapporteur on the Brussels II Convention for which she drafted the explanatory report published in Official Journal C 221 of 16 July 1998, together with the convention which was the basis for Regulation (EC) No 1347/ 2000. She is a member of numerous scientific and professional associations - Spanish, international and foreign - particularly the European Group for Private International Law (Groupe européen de droit international prive) which she has chaired since September 2003.

She is the author of over 100 publications on private international law and European Community law, particularly on international protection of children and adoption, international family law and successions law, international civil proceedings and the Brussels and Lugano Conventions, Community private international law, foreigners law and non-unified legal systems law.

I. Background and Current Situation

1. Considering that family law was not previously a matter of any interest to a Community centred on purely economic issues, developments in family law within the European Union in recent years have been truly spectacular. A situation of complete lack of provision in the field of family law has been transformed in a very short space of time by the adoption, firstly, of Council Regulation (EC) No 1347/2000 and, subsequently, of Regulation (EC) No 2201/2003, its intended replacement. An insight into the background is required for an understanding of these developments.

2. The immediate background was the adoption of the Brussels Convention of 28 May 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (the 'Brussels II Convention') under the third pillar of the Treaty of Maastricht, which was accompanied by a report drafted by the rapporteur 1. However, the 1998 convention did not come into force because the Treaty of Amsterdam came into force on 1 May 1999 and reversed the intergovernmental approach which had prevailed up to then in judicial matters; on the basis of Articles 61(c) and 67 of the Treaty establishing the European Community, the Commission submitted a proposal for a regulation 2 to transform the 1998 convention into a regulation, which resulted in the adoption of Regulation (EC) No 1347/2000 of 29 May 2000 (the 'Brussels II Regulation' 3) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. The text of the convention was changed little during transformation and the amendments made were either the result of the transformation of the convention into a regulation or due to the fact that, in the course of the process of review and transformation of the 1968 Brussels Convention into Regulation (EC) No 44/2001, some improvements had been made which merited incorporation. That is how the Brussels II Regulation 4 came to be approved on 29 May 2000 and entered into force on 1 March 2001 (in accordance with Article 46 thereof).

3. In a marriage breakdown, a foreign element is an increasingly frequent occurrence, as it is in relationships between parents and children, which gives rise to three problems: international jurisdiction, applicable law, and recognition and enforcement of judgments. The Brussels II Regulation provides an answer to the first and the third of these questions and is therefore what is known as a 'double' instrument in that it regulates both jurisdiction and the recognition and enforcement of judgments. The issue of the law applicable to divorce has not yet been dealt with in depth nor has it been the subject of any initiative 5. It remains somewhat surprising that measures have been taken to facilitate movement of judgments in matrimonial matters without any attempt to unify conflict-of-law rules at the same time, given that approximation of national legislation is almost inconceivable at the moment.

4. A further development should be mentioned in this context. The Tampere European Council established that the principle of mutual recognition of judgments was a cornerstone for the creation of a genuine area of justice, stressing rights of access as a matter of priority in the field of family law. This led France to present an initiative on 3 July ...

If you are already a vLex customer, Access Here