Lifelong Learning Programme

Jean Monnet

Lifelong Learning Programme

‘Cross-Border Litigation in

Belgium and Sweden’

Workshop Report No 6

6th – 7th June 2013

"This project has been funded with support from the European Commission. This publication reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein."

Background

On 6th June 2013, practitioners and academics connected with the Centre for Private International Law met at the sixth of seven workshops dedicated to promoting the debate on how cross-border litigation functions within Europe. The purpose of the workshop was to offer the opportunity for a free and frank exchange of ideas surrounding the Belgian and Swedish perspectives on EU private international law.

This report intends to provide a brief overview of the ideas that emerged from the workshop without attributing any views to any particular individual.

Cross-Border Litigation in Family Matters

Jurisdiction and Recognition and Enforcement in Family Matters

Brussels IIbis

The Belgian Experience

The issues surrounding the definition of marriage, of habitual residence, dual nationality, and prorogation of jurisdiction and transfer of proceedings were highlighted for discussion. The first point raised concerned the definition of marriage. It was noted that Brussels IIbis applies to divorce. Divorce implies that the people were originally married. Marriage is not defined in the Regulation. In Belgium we have marriage for people of the same gender. If you come from a country that only has civil partnership for same sex couples then Belgium will transform the civil partnership status to one of marriage. Marriage should be given an autonomous interpretation and therefore it is argued that divorces of same sex couples should fall under the Brussels IIbis Regulation. So far there has been no case law on this issue as it is assumed that people in this situation return to the state of origin.

The ECJ in A and Mercredi defined habitual residence for children and in other cases involving social security. But the question remains as to how we translate those cases for habitual residence for adults and for spouses. To what extent do we take into account the objective elements and intention element? In one case M was domiciled in Belgium, he was not a national. He lived in Indonesia for less than a year. The question was, was he still habitually resident in Belgium when he was in Indonesia, for the purpose of divorce. He was habitually resident in Belgium as he paid tax there – and he had the intention to return there.

With regards to the dual nationality, Belgium is part of the Hague Convention 1930 and the question is to what extent can we use that convention when we are using EU law? It would appear from Belgian case law that the courts prefer to choose the common nationality. In a case concerning matrimonial property from the Court of Cassation 4 December 2009 one spouse had dual nationality of Belgium and Morocco and the other spouse was Moroccan. The question was which law would apply to the divorce? The courts chose the common nationality. However if the courts were to consider Brussels IIbis and a couple with two European nationalities for example a common nationality of Belgium and one with a dual nationality of France, it is argued that the courts would not be able to ignore the second nationality. It is important for art 3. The court has to work out if it has jurisdiction and it also has to see if another EU court has jurisdiction.

A Dutch case was then put forward initially as a good example of forum necessitatis. Forum necessitatis will be considered in the review of Brussels IIbis. The Court of appeal of The Hague, 21 Dec 2005 heard the case. At the time the Maltese court was the only court in EU with jurisdiction. The problem was that divorce was not possible in Malta (at the time). The courts used the Dutch forum necessitatis. A couple living in Malta before Malta allowed divorce. The husband was a Maltese national and the wife was Dutch. They were living in Malta and they wanted a divorce. They put forward joint proceedings for divorce. No ground for jurisdiction only one party with Dutch nationality. None of the parties live in the Netherlands. If the wife came to live in the Netherlands for 6 months then the Dutch courts would have jurisdiction. The Dutch court said that they didn’t have jurisdiction so looked to see if another state had jurisdiction. Malta did but Malta wouldn’t grant a divorce. The couple have to have a forum. The couple needed to have access to justice. So forum necessitatis was put forward and the Dutch court relied on it. This problem doesn’t apply any more as Malta allows divorce.

However this case was heavily criticised by the group as being unlawful as it was merely trying to get an end result. It was a violation of Brussels IIbis. There was a court within the EU that had jurisdiction. The fact that it didn’t permit divorce was irrelevant.

The habitual residence of the child under article 8 was discussed. The Court of Appeal of Ghent, 26 May 2010 heard a divorce action. The parties were silent on jurisdiction and applicable law. The courts said that the children were habitually resident in Belgium, basing their reasoning on art 8 and therefore the Belgian courts had jurisdiction even though one of the parties was not a Belgian national.

In another divorce case concerning prorogation of jurisdiction the Court of Appeal of Brussels, 29 June 2009 heard a case where the parents had lived in Belgium but had then moved to the Congo. The children were habitually resident in the Congo. Both parties had accepted the Belgian courts. But there is also a best interest of the child question to be considered. If the child is habitually resident in a country not party to Hague Convention 1996 then it is presumed to be in the interest of the child. But Belgium isn’t actually party to this convention.

National legislation on child abduction has been amended and is viewed as more efficient. There are only five courts that can deal with child abduction, which has the benefit of focusing the expertise. But there are also controversial aspects. In Belgium the Public prosecutor institutes return proceedings. But when there is a risk of violence then the public prosecutor would be in a difficult position due to possible conflicts of interest and they would suggest a lawyer should do that role. Not sure if child abduction cases are being dealt with more quickly.

For a case concerning transfer of proceedings at the Court of Appeal of Antwerp, 23 Dec 2011 & 15 June 2011, at the start of proceedings the mother and daughter lived in Belgium and the court had jurisdiction under art 8 of Brussels IIbis. By the time of appeal: the mother and child had moved to the Netherlands and there was a transfer of jurisdiction. The mother requested transfer (which was agreed by the other parties). The father lived in the US. There was a risk of violence. The mother said that the child was 4 years old when her mother took her and the child was settled in the Netherlands. The court would not take this into account. Their view was that the child should be returned to the US. The case went to appeal to the ECHR. The ECHR said that they had to take into account what had happened in the mean time. The court said the judge should have looked at the best interests of the child, which is not possible under the Child Abduction Convention.

The Swedish Experience

Background

A brief background to the Swedish court system relating to family matters and Brussels IIbis was provided for the group. In Sweden most of the cases concerning children that fall within the scope of Brussels IIbis start in a district court, which is a court of first instance. If a party is dissatisfied with a decision made by the district court, the party can appeal, but a court of appeal can only give the party a full review appeal after the court has granted leave to appeal. At present Sweden has 48 district courts and six courts of appeal. All districts courts and all the courts of appeal deal with matters related to family law. Only one district court, the Stockholm City Court and the Svea Court of Appeal deal with matters related to the 1980 Hague Convention and the return of wrongfully removed children. The Supreme Court is the court of last instance. The primary responsibility of the Supreme Court is to try cases, which may be of interest from the point of view of the development of law, that is, to create precedents and a party needs a leave to appeal if the case is to be given a full review.

Four years ago Sweden reformed its court procedure. It was entitled "More Modern Court Proceedings". One new measure was to introduce video recordings of all examinations of witnesses, parties and experts in the first-instance proceedings before the district courts. The video can then be played in any proceedings before the Court of Appeal and the Supreme Court, so that the person concerned need not come and be heard a second time. Where necessary in a certain situation, however, a fresh examination will take place before the Court of Appeal. This new procedure also applies to parties and witnesses in cases concerning family matters and so far the experience of the new regime has been very positive. An advantage is that the reform helps to shorten the processing time in the court of appeal.

Brussels IIbis and the impact on Swedish legislation and case law

Jurisdiction

It was noted that prior to Brussels IIbis there were just a few generally applicable international private law rules in the Swedish national legislation in this area. Brussels IIbis gave Sweden legislation both on jurisdiction and on recognition and enforcement. This led to clarification and help for courts and practitioners, even though the Regulation was not very easy to apply. For instance, the child’s habitual residence can be very hard to determine. However, it was recognised that most of the general courts in Sweden are now aware of the decision by Court of Justice of the European Union in the case Mercredi v. Chaffe (C-497/10 PPU), where the court interpreted the concept of a child’s habitual residence for the purposes of Articles 8 and 10 in the Brussels IIbis.

At the time Brussels IIbis came into force, it was suggested that many practitioners did not realise that the Regulation was applicable in respect of a child that is a citizen in a non-EU member state, e.g. in the US. In a judgment by the Swedish Supreme Court in 2011 where the question was whether Swedish courts have jurisdiction or not, the court stated that the question as to whether a child has its habitual residence in Sweden shall be determined according to the articles in Brussels IIbis even though there was no connection in the case to another EU-member state. (NJA 2011 s. 499)

Recognition and Enforcement

Sweden does not recognise and enforce foreign judgments without a legal base in legislation. As the Regulation points to many decisions that can be recognized and enforced it was noted that Brussels IIbis extends the area where measures taken abroad are to be recognised and enforced.

Sweden has passed an Act with complementary rules to the Brussels IIbis Regulation, which includes rules for the procedure of recognition and enforcement. Only one court is appointed to deal with this procedure. One judge decides the case in the first step of the procedure. A party that is dissatisfied can ask for a review of the decision and in case of a review the court consists of three judges. The judge who has considered the question in the first place cannot participate in the second step. A decision according to the second step can be the subject for an appeal. Leave to appeal has to be granted by the Supreme Court for a full review of the case. Figures regarding how many applications according to Brussels IIbis that are filed to the court of appeal were not available but it was suggested that they were not very frequent. If the court grants enforceability, the decision can be enforced in the same way as for a similar Swedish decision. It is then possible to impose a conditional fine or assistance by the police to secure the enforcement.

Return of a child that has been wrongfully removed

The Stockholm City Court, the only district court dealing with these cases, received approximately 22 applications last year. In four cases the parties settled their dispute. In half of the cases the court approved the application.

The same year, the Svea court of appeal, received 15 appeals and in most of these cases the district court had refused the application. In 9 of the cases (that is half of them) the appeal led to a return order. The ground for refusal in the other cases did not concern the grave risk of harm to the child (article 13 b). None of these cases were granted leave to appeal by the Supreme Court.

However, the Supreme Court has tried a couple of cases on this matter in the last few years. The first of these cases, a decision from 2008, concerned procedural matters related to 1980 Hague Convention cases. Even though the case does not concern a return to an EU member state the case is of interest here. The background was as follows. (NJA 2008 s.963)