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What the Regulation deals with
Regulation (EC) No 2201/2003 contains the rules the authorities of the Member States of the European Union shall apply to determine whether they have jurisdiction to rule upon an application in matrimonial matters (i.e. in matters of divorce, legal separation or marriage annulment) or in matters of parental responsibility. The Regulation also provides for the rules in relation to the effectiveness, in a Member State, of the decisions issued in the matters indicated above by the authorities of another Member State, as well as the public documents and agreements enforceable effects are attributed to. The Regulation also contains rules aimed at ensuring the return of children illegally transferred or detained in another State. The legal framework is completed by the rules relating to the coordination of identical or related pending proceeding, both in matrimonial matters and in matters of parental responsibility, in different States, as well as the rules on cooperation between central authorities.
The Regulation is intended to be replaced, starting from 1 August 2022, by Regulation (EU) 2019/1111. To this aim, only the older of the two texts is considered, being the only one applicable at the time of Brexit.
The conditions for the applicability of the Regulation
The applicability of the rules under the Regulation concerning jurisdiction does not depend on the fact that the spouses or the child interested are connected to a Member State rather than to a third State. The fact that the defendant spouse or the child has certain connections with a third State may entail, within the elements indicated below, the reference to particular rules, otherwise ineffective.
The applicability of the rules on the effectiveness of decisions depends on the fact that the decision at stake was issued in a Member State of the European Union, regardless of whether the same decision concerns a situation related to the Union. The same applies to public documents, which shall have been formed in a Member State, and to agreements, which shall be enforceable in a Member State.
The discipline of the Regulation concerning the return of abducted children presupposes that the State of habitual residence of the child and the one the child was transferred to or detained in are both Member States of the European Union.
The rules of the Regulation on lis pendens apply when the proceedings to be coordinated are pending in different Member States, regardless of whether such proceedings concern situations related to the European Union.
What changes after the end of the transitional period
The consequences vary depending on the rules of the Regulations considered.
Jurisdiction in matrimonial matters
The rules of the Regulation governing jurisdiction in matters of divorce, legal separation and marriage annulment continue to apply after the end of the transitional period, in Italy as in the other Member States of the European Union, even when the situation is connected with the UK.
Art. 7 of the Regulation also provides that, in certain cases, the authorities of a Member State may use, to assess their jurisdiction, rules other than those of the Regulation, in particular the rules on jurisdiction provided for by the sources of law of the forum (in Italy, Art(s). 3 and 32 of Law No 218 of 31 May 1995). However, this can only take place on condition that the courts of no Member State have jurisdiction under the uniform rules of the Regulation, and that the defendant has the nationality of a third State and habitually resides in a third State (if he/she had the nationality of a Member State or habitual residence in a Member State, the uniform rules of the Regulation would be, for him/her, of exclusive application pursuant to Art. 6).
This means that, after the end of the transitional period, the defendant spouse who is a British citizen and habitually resides in a third State with respect to the European Union, or is a citizen of a third State and habitually resides in the United Kingdom, can be sued in Italy (if the court of other Member States do not have jurisdiction under the Regulation) also by virtue of the domestic rules on jurisdiction, previously not reliable upon by him/her.
The defendant’s nationality and habitual residence must be determined at the time of the filing of the proceeding, pursuant to Art. 16 of the Regulation.
The framework change, so far described, has no consequences, pursuant to the Withdrawal Agreement, on the proceedings filed before the end of the transitional period.
Jurisdiction in matters of parental responsibility
The rules of the Regulation governing jurisdiction in matters of parental responsibility continue to operate after the end of the transitional period, in Italy and in the other Member States, even when the child or the case to rule upon is connected with the United Kingdom.
Some of the rules now indicated, however, give rise to particular forms of coordination between the courts of different States, and operate only when the States involved are all Member States of the European Union. This relates in particular Art. 12, which allows the authorities of a Member State seised in proceedings not relating to parental responsibility to also rule upon a related issue of parental responsibility, under certain conditions, and Art. 15, which allows the transfer of jurisdiction from the authorities of one Member State to those of another where this is in the interest of the child. Similar considerations apply to the mechanisms of connection among courts provided for in Art(s). 9 and 10 of the Regulation, concerning jurisdiction in the event, respectively, of the continuing jurisdiction of the child’s former habitual residence and the child abduction.
After the end of the transitional period, the mechanisms of connection provided for under the rules just mentioned are no longer possible, at least by virtue of the Regulation, between the Member States of the European Union and the United Kingdom.
However, it should be noted that the United Kingdom, as well as all Member States of the European Union, including Italy, is bound by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The Regulation has taken over the solutions of the Convention in various respects, with the consequence that the two frameworks, for this part, appear to be rather similar. The Convention establishes in Art(s). 8, 9 and 10 forms of connection among courts similar to those provided for by the Regulation in Art(s). 12 and 15. Similarly, Art. 7, concerning the jurisdiction in case of child abduction, which served as a model for Art. 10 of the Regulation.
As for the relationship between the two frameworks, Art. 52 of the Convention establishes that this does not affect the possibility for Contracting States which are linked to each other in this field by special ties of regional rules, such as the Member States of the European Union, to apply these regional rules (the Regulation, therefore) when there is an issue of resident children, indeed, in one of these States (i.e. in a Member State of the European Union). Art. 61 of the Regulation, for its part, provides for the application in the Member States of European standards, rather than the Convention, to the case of a child resident in a Member State.
In practice, after the end of the transitional period, the Italian courts seised in proceedings concerning a child habitually resident in a Member State will continue to assess their jurisdiction on the basis of the Regulation (exercising or declining it depending on what the latter provides for), regardless of whether the child is a UK citizen or whether the case is otherwise linked to the UK. On the other hand, if Italian courts are seised in a proceeding concerning a child resident in the United Kingdom, the Italian courts shall assess their jurisdiction under the 1996 Hague Convention, and this even when the child is an Italian citizen or his/her case has other connections with Italy (they could avail of the opportunities for coordination between courts provided for by the Convention, under the conditions established therein).
Also for the rules on jurisdiction in matters of parental responsibility, the date of the application is relevant. Proceedings filed before the end of the transition period remain disciplined under the previous framework, even if decided later on. For those filed from 1 January 2021 onwards, the rules resulting from the entry into the scene, in relations with the United Kingdom, of the 1996 Hague Convention apply.
Effectiveness of decisions, public documents and agreements
The rules of the Regulation that govern the effectiveness of decisions and other documents operate, as mentioned, only in relations among Member States of the European Union and are, then, after the end of the transitional period, inapplicable to relations among Italy (and other Member States) and the United Kingdom.
In place of those: in matrimonial matters, the rules of the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations become applicable (note, however, that this Convention does not apply to decisions on marriage annulment: the effectiveness in Italy of the decisions issued in the United Kingdom in this field then depends on Art(s). 64 and 65 of Law No 218 of 1995); in matters of parental responsibility, the rules set out in Chapter IV of the 1996 Hague Convention.
The relevant moment for deciding the applicability of the old and the new framework is, even here, as emerges from the United Kingdom’s Withdrawal Agreement, that of filing the application. Decisions issued in the context of proceedings filed before 31 December 2020 continue to circulate between Italy (and other Member States) and the United Kingdom according to European standards, even if they occur after that date.
Return of the child
The special rules provided for under the Regulation to strengthen cooperation among Member States on the issue of the return of children illegally transferred to or detained abroad are valid only in relations between the Member States of the European Union. Therefore, the end of the transitional period prevents the use of these rules in relations between Italy (and the other Member States) and the United Kingdom.
Moreover, both the Member States of the European Union and the United Kingdom are bound by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, of which, moreover, European standards constitute a development. Once the applicability of the Regulation has ceased, the Convention previously referred to remains applicable.
Lis pendens and related actions
The rules of the Regulation relating to lis pendens and related actions also apply on the assumption that the proceedings to be coordinated are pending before the courts of two Member States of the European Union and are as such without effects, after the end of the transitional period, in relations between Member States and the United Kingdom. The solution established for the rules on jurisdiction applies to them, with the consequence that cases of lis pendens and related actions involving proceedings filed before 31 December 2020 are governed by the Regulation.
For subsequent proceedings the following operate: in matrimonial matters, in Italy, Art. 7 of the Law No 218 of 1995; in matters of parental responsibility, Art. 13 of the 1996 Hague Convention.
Cooperation between central authorities
Similarly, after the end of the transitional period, the rules of the Regulation relating to cooperation between central authorities become inapplicable. Instead of those, the rules governing cooperation between authorities contained in the aforementioned Hague Conventions of 1980 and 1996, with regard to the cases governed respectively by one and the other instrument, apply. Moreover, no conventional instrument can be found in providing for similar forms of cooperation in matrimonial matters.
Pietro Franzina
Note – The legal analysis set out, representing the personal contribution of the author, does not bind the partners of the EJNita – Building Bridges project and does not in any way constitute legal advice.