Regulation (EU) nº 606/2013 Applicable (from 11 January 2015)
Regulation (EU) nº 606/2013 of the European Parliament and of the Council, of 12 June 2013, on mutual recognition of protective measures in civil matters, is applicable from yesterday on protection measures ordered on or after that date, irrespective of when proceedings have been instituted.
To the best of my knowledge, in spite of the technical specialties of the Regulation and of the fact that works on the same topic have also been undertaken at The Hague Conference, this instrument has attracted very little attention so far. In the next future two papers on it will be published, both from the MPI Luxembourg.
Click here to access the text of the Regulation; here, for the Commission Implementing Regulation (EU) No 939/2014 of 2 September 2014 establishing the certificates referred to in Articles 5 and 14 of Regulation (EU) No 606/2013 of the European Parliament and of the Council on mutual recognition of protection measures in civil matters.
Update: I’d like to thank Prof. Dutta for his nice email this morning attaching an article of his on the Regulation, the Directive (2011/99/EU) and the German implementing legislation, published January 2015 in FamRZ, 85 ff.
It is true that this Regulation was overshadowed by the Brussels I bis Regulation. However, I foresee a scarce application, given the fact that the Regulation does not substitute Brussels II bis on the matter (see Art. 2 Para. 3).
This raises the issue of imbalance between protection measures falling under the scope of Regulation 606/2013, and 2201/2003: Whereas the former secures a swift procedure (see Art. 4), the latter maintains the structure of recognition in the state addressed (Art. 20 in conjunction with Art. 21 Regulation 2201/2003). In other words, unmarried and/or same sex couples will be better placed than married or divorced couples.
I am not sure I completely agree with you. To start with, the new Regulation will also apply outside the family circle (but, ok, most cases will fall within the family realm). Secondly… or rather: what is, in your opinion, the scope of Regulation 2201/2003? The questions in admitedly an unclear one.
In stead of expressing my opinion, allow me to copy-paste an extract from the proposal [COM (2011) 276, p. 5 et seq]: ” The situation is different as regards Regulation Brussels II-bis, the aim of which is to centralise all proceedings relating to a given divorce or legal separation. This proposal must not jeopardise rules governing jurisdiction and the recognition of judgments contained in that specific instrument by offering the possibility to seize the jurisdiction of another Member State as regards the protection measures taken in the context of the ongoing proceedings. For this reasons, all protection measures entering into the scope of Brussels II-bis shall continue to be governed by this instrument. However, the protection measures which do not fall under the application of Brussels II-bis, e.g. protection measures which would concern a couple which has not been married, same sex partners or neighbours, will be covered by this proposal “.
My understanding is that protective measures issued in the course of divorce or legal separation proceedings shall remain under the scope of Brussels II bis. What’s left for the “newcomer” is what’s written in the extract above. And this is not much, at least from the perspective of my legal order.
In addition, would you agree with me that there seems to be a different treatment, in the way I described in my first comment?
I look forward to read the article of Prof. Dutta in FamRZ, and the forthcoming MPI Luxemburg publications.
Article 2(3) and Recital 11 of the new Regulation on Protection Measures in Civil Matters exclude from its scope protection measures falling within the scope of the Brussels II Regulation. I suppose that this exclusion has in mind prohibitions of contacts or visits between spouses imposed in connection with proceedings relating to divorce, legal separation or marriage annulment, but I am not convinced that such prohibitions are covered by the Brussels II Regulation, whose Recital 8 states that it applies only to the dissolution of matrimonial ties and should not deal with “any other ancillary measures”. On the other hand, protection orders similar to those under the new Regulation may be found in court decisions relating to parental responsibility, for example in a judgment forbidding the non-custodial parent to contact the child except at certain times or in the presence of a social worker. Such orders seem thus to be covered by the Brussels II Regulation and not by the Regulation on Protection Measures in Civil Matters.
Following the comment made by Prof. Bogdan, it seems that there’s a distance between what Brussels II bis actually covers (as stated under Recital 8), and what the drafters of the Explanatory Memorandum believed, the Brussels II bis Regulation supposedly covers.
I refer to the following extract [COM (2011) 276, p. 5 (under Art. 1, Para 3)
“The situation is different as regards Regulation Brussels II-bis, the aim of which is to centralise all proceedings relating to a given divorce or legal separation. This proposal must not jeopardise rules governing jurisdiction and the recognition of judgments contained in that specific instrument by offering the possibility to seize the jurisdiction of another Member State as regards the protection measures taken in the context of the ongoing proceedings”.
Of course, it is a matter of interpretation, whether “all proceedings relating to a given divorce or legal separation” include or exclude “ancillary measures”.