When is the Brussels II bis regulation aplicable? – First ECJ Judgements about scope

Abstract

The Brussels II bis Regulation is mandatory on all Member States (MS) except Denmark. It applies to international conflicts. Its rules of international jurisdiction apply under the terms or within the limits to the jurisdiction established therein: in an exhaustive manner when the respondent is an EU national or resident and in a preferential and principal manner for non-EU respondents (ECJ, 29 Nov. 2007, C-68/07 Sundelind López). In such a situation, the national rules will only be applicable failing a competent MS. Therefore, every time that a judge from a MS has before it an international divorce case (that being the only «UE necessary connection»), the judge must verify whether it has jurisdiction according to the international jurisdiction criteria set out in the Regulation. If the answer is negative, the judge has to verify whether another MS has jurisdiction. If that is the case (if another MS has jurisdiction), national laws will not be applicable. It is only when no MS has jurisdiction that it will be possible to apply national laws in a subsidiary manner, in the case of a non-EU respondent (not national or resident of a MS). The future draft «Rome III Regulation, which widens up the international jurisdiction criteria, will replace to greater extent national laws. While such a universal approach by the regional legislator (and the complex technique used in some of its provisions) may be subject to some critics. But, it is questionable whether the alternative of leaving it to each legislator to establish the international jurisdiction rules from its own national perspective would be any better.