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CJEU Rules on the interplay between Brussels IIA and Dublin III

This post was contributed by Dr. Vito Bumbaca, who is Assistant Lecturer at the University of Geneva

In a ruling of 2 August 2021 (A v. B, C-262/21 PPU), the Court of Justice of the European Union (CJEU) clarified that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. The judgment is not available in English and is the first ever emanating from this Court concerning the Brussels IIA-Dublin III interplay.

The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIA Regulation) complements the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and is applicable to 26 EU Member States, including Finland and Sweden. The Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III), is pertinent for asylum seekers’ applications commenced at least in one of the 31 Dublin Member States (EU/EFTA), comprising Finland and Sweden, bound by this Regulation.

Questions for a CJEU urgent preliminary ruling:

The CJEU was referred five questions, but only addressed the first two.

‘(1) Must Article 2(11) of [Regulation No 2201/2003], relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation [No 604/2013], must be classified as wrongful removal?

(2) If the answer to the first question is in the negative, must Article 2(11) [of Regulation No 2201/2003], relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, and to take no further action since the mother and child have left the State of residence, but in which the child whose return is ordered, no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?’

Contents of the CJEU judgment:

In 2019, a married couple, third-State nationals (Iran), both with regard to Brussels IIA and Dublin III respective Member States, moved from Finland to settle in Sweden. Since 2016, the couple had lived in Finland for around three years. In 2019, a child was born in Sweden. The couple was exercising joint custody over the child in conformity with Swedish law. The mother was holding a family residency permit, in both Finland and Sweden, through the father’s employment rights. The approved duration of the mother’s residency right in Finland was around one year longer than in Sweden.

Two months after the child’s birth, the latter and the mother were placed under Swedish residential care (hostel). Essentially, the Swedish administrative decision to uphold this care protective measure was the result of the father’s violence against the mother, so to protect the child from the risks against his development and health, as well as to prevent his wrongful removal to Iran possibly envisaged by his father. Limited contact rights were granted to the father. A residency permit was requested, individually, by the father and the mother based on the family lien – request respectively filed on 21 November and 4 December 2019.

In August 2020, the mother submitted an asylum request, for the child and herself, before the Swedish authorities. The same month, the Finnish authorities declared themselves internationally responsible over the mother’s and child’s asylum request by virtue of article 12(3) of Dublin III – based on the longer duration of the residency permit previously delivered according to Finnish law. In October 2020, the Swedish authorities dismissed the father’s and rejected the mother’s respective residency and asylum requests, and ordered the transfer of the child and his mother to Finland. Taking into account the father’s presence as a threat against the child, the limited contacts established between them, and the father’s residency right in Finland, the Swedish authorities concluded that the child’s separation from his father was not against his best interests and that the transfer was not an obstacle to the exercise of the father’s visitation right in Finland. In November 2020, the mother and the child moved to Finland pursuant to article 29(1) of Dublin III. In December 2020, the father filed an appeal against the Swedish court’s decisions, which was upheld by the Swedish Immigration Tribunal (‘Migrationsdomstolen i Stockholm’), although it resulted later to be dismissed by the Swedish Immigration Authorities, and then rejected by the Immigration Tribunal, due to the child’s relocation to Finland (CJEU ruling, § 23-24).

In January 2021, the father filed a new request before the Swedish authorities for family residency permit on behalf of the child, which was still ongoing at the time of this judgment (CJEU ruling, § 25). During the same month, the mother deposited an asylum application before the Finnish authorities, which was still ongoing at the time of this judgmentthe mother’s and child’s residency permits were withdrawn by the Finnish authorities (CJEU ruling, § 26). In April 2021, the Swedish Court (‘Västmanlands tingsrätt’), notwithstanding the mother’s objection to their jurisdiction, granted divorce, sole custody to the mother and refused visitation right to the father – upheld in appeal (‘Svea hovrätt’). Prior to it, the father filed an application for child return before the Helsinki Court of Appeal (‘Helsingin hovioikeus’), arguing that the mother had wrongfully removed the child to Finland, on the grounds of the 1980 Hague Convention. The return application was rejected. On the father’s appeal, the Finnish authorities stayed proceedings and requested an urgent preliminary ruling from the CJEU, in line with article 107 of the Luxembourg Court’s rules of procedure.

CJEU reasoning:

The Court reiterated that a removal or retention shall be wrongful when a child holds his habitual residence in the requesting State and that a custody right is attributed to, and effectively exercised by, the left-behind parent consistently with the law of that State (§ 45). The primary objectives of the Brussels IIA Regulation, particularly within its common judicial space aimed to ensure mutual recognition of judgments, and the 1980 Hague Convention are strictly related for abduction prevention and immediate obtainment of effective child return orders (§ 46).

The Court stated that, pursuant to articles 2 § 11 and 11 of the Brussels IIA Regulation, the child removal to a Member State other than the child’s habitual residence, essentially performed by virtue of the mother’s right of custody and effective care while executing a transfer decision based on article 29 § 1 of the Dublin III Regulation, should not be contemplated as wrongful (§ 48). In addition, the absence of ‘take charge’ request following the annulment of a transfer decision, namely for the purposes of article 29 § 3 of Dublin III, which was not implemented by the Swedish authorities, would lead the retention not to being regarded as unlawful (§ 50). Consequently, as maintained by the Court, the child’s relocation was just a consequence of his administrative situation in Sweden (§ 51). A conclusion opposing the Court reasoning would be to the detriment of the Dublin III Regulation objectives.

Some insights from national precedents:

In the case ATF 5A_121/2018, involving a similar scenario (cf. FamPra.ch 1/2019), the Swiss Federal Court maintained that a child born in Greece, who had lived for more than a year with his mother in Switzerland, had to be returned to Greece (place of the left-behind parent’s residence) based on the established child’s habitual residence prior to the wrongful removal to Switzerland, notwithstanding his pending asylum application in the latter State. Indeed, the Greek authorities had been internationally responsible over the child’s asylum request on the basis of his father’s residence document. However also in that case it was alleged that the father had been violent against the mother and that a judgment ordering the child’s return to Greece, alone or without his mother (§ 5.3), would not have caused harm to the child under the 1980 Hague Convention, art. 13.

In the case G v. G [2021] UKSC 9, involving a slightly different scenario in that no multiple asylum requests were submitted, the UKSC judged that a child, of eight years old born in South Africa, should not be returned – stay of proceedings – until an asylum decision, based on an asylum application filed in England, had been taken by the UK authorities. The UKSC considered that, although an asylum claim might be tactically submitted to frustrate child return to his/ her country of habitual residence prior to wrongful removal or retention, it is vital that an asylum claim over an applicant child, accompanied or not by his/ her primary carer, is brought forward while awaiting a final decision – in conformity with the ‘non-refoulement’ principle pursuant to article 33 of the 1951 Geneva Convention relating to the Status of Refugees.

Comment:

The CJEU ruling is momentous dictum in that it holds the not any longer uncommon intersection of private international law and vulnerable migration, especially with regard to children in need of international protection in accordance with both Brussels IIA and Dublin III Regulations (cf. Brussels IIA, § 9, and Dublin III, article 2 lit. b). The Luxembourg Court clarifies that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. It is emphasised that, contrary to the Swiss judgment, the child in the instant case did not have any personal attachments with Finland at the time of the relocation – neither by birth nor by entourage – country of destination for the purposes of the Dublin III transfer. Moreover, the ‘transfer of responsibility’ for the purposes of Dublin III should be contemplated as an administrative decision only, regardless of the child’s habitual residence.

It is observed as a preamble that, according to a well-known CJEU practice, a child should not be regarded as to establish a habitual residence in a Member State in which he or she has never been physically present (CJEU, OL v. PQ, 8 June 2017, C-111/17 PPU; CJEU, UD v. XB, 17 October 2018, C-393/18 PPU). Hence, it appears procedurally just that the Swedish courts retained international jurisdiction over custody, perhaps with the aim of Brussels IIA, article 8 – the child’s habitual residence at the time of the seisin, which occurred prior to the transfer to Finland. On that procedural departure, the Swedish courts custody judgment is substantially fair in that the father’s abuse against the mother is indeed an element that should be retained for parental responsibility, including abduction, merits (CJEU ruling, § 48; UKSC judgment, § 62).

However, it is argued here that, particularly given that at the relevant time Sweden was the child’s place of birth where he lived for around 14 months with his primary carer, the Swedish and the Finnish authorities might have ‘concentrated’ jurisdiction and responsibility in one Member State, namely Sweden, ultimately to avoid further length and costs related to the asylum procedures in line with the same Dublin III objectives evoked by the CJEU – namely “guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection” (§ 5, Dublin III). Conversely, provided that the child’s relocation was not wrongful as indicated by the Finnish authorities, and confirmed by the CJEU ruling, the Swedish authorities may have opted for the ‘transfer of jurisdiction’ towards the Finnish authorities on the basis of Brussels IIA, article 15(1) lit. b, indicating the child’s new habitual residence (cf. Advocate General’s opinion, § 41) following the lawful relocation (cf. article 15.3., lit. a).

Importantly, concentration of jurisdiction-responsibility over a child seeking international protection in one Member State, in light of the Brussels IIA-Dublin III interplay, would essentially determine a coordinated interpretation of the child’s best interests (cf. Brussels II, § 12, and Dublin III, § 13), avoiding two parallel administrative-judicial proceedings in two Member States whose authorities may not always come to similar views, as opposed to the present case, over such interests (AG’s opinion, § 48). This is particularly true, if the child (non-)return to his/ her habitual residence might likely be influenced, as stated in the CJEU ruling, by his/ her administrative situation, which would potentially have an impact on the international custody jurisdiction determination. An example of controversial outcome, dealing with child abduction-asylum proceedings, is the profoundly divergent opinion arising from the UK and Swiss respective rulings, to the extent of child return in a situation where the mother, primary carer, is or could be subject to domestic violence in the requesting State.

Similarly, the UKSC guidance, in ‘G v. G’, affirmed: “Due to the time taken by the in-country appeal process this bar is likely to have a devastating impact on 1980 Hague Convention proceedings. I would suggest that this impact should urgently be addressed by consideration being given as to a legislative solution […] However, whilst the court does not determine the request for international protection it does determine the 1980 Hague Convention proceedings so that where issues overlap the court can come to factual conclusions on the overlapping issues so long as the prohibition on determining the claim for international protection is not infringed […] First, as soon as it is appreciated that there are related 1980 Hague Convention proceedings and asylum proceedings it will generally be desirable that the Secretary of State be requested to intervene in the 1980 Hague Convention proceedings” (UKSC judgment, § 152-157). Clearly, the legislative solution on a more efficient coordination of child abduction-asylum proceedings, invoked by the UK courts, may also be raised with the EU [and Swiss] legislator, considering their effects on related custody orders.

Cross posted at the EAPIL blog.

The Tango Between Brussels Ibis Regulation and Rome I Regulation under the Beat of Package Travel Directive

Written by Zhen Chen, doctoral candidate at the University of Groningen, the Netherlands

The article titled ‘The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive’ is published on Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177%2F1023263X211048595

In the field of European private international law, Brussels Ibis Regulation and Rome I Regulation are dancing partners that work closely with different roles. When it comes to consumer protection, Brussels Ibis Regulation is the leader and Rome I Regulation is the follower, since special protective rules over consumer contracts were first introduced in Articles 13–15 Brussels Convention[1] and then followed by Article 5 Rome Convention.[2]

  1. Package travel in Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I

Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not under Article 17(3) Brussels Ibis since it does not expressly mention the term ‘package travel’. Instead, the term used in Article 17(3) Brussels Ibis is the same as that in Article 5(5) Rome Convention, which has been abandoned by its successor Article 6(4)(b) Rome I. Such discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with the enlarged notion of package travel. This means that when Article 6(4)(b) Rome I Regulation is dancing under the beat of Directive 2015/2302, Article 17(3) Brussels Ibis Regulation is still dancing under the beat of Article 5(5) 1980 Rome Convention.

  1. A uniform concept of package travel under Directive 2015/2302

The CJEU clarified in the Pammer judgment that the concept ‘a contract which, for an inclusive price, provides for a combination of travel and accommodation’ in Article 15(3) Brussels I should be interpreted in line with Article 6(4)(b) Rome I by reference to Directive 90/314.[3] The CJEU did not follow the opinion of the Advocate General, according to which the concept prescribed in Article 15(3) Brussels I has to be interpreted in exactly the same way as the term ‘package’ enshrined in Article 2(1) Directive 90/314.[4] The court stated that the concept in Article 15(3) Brussels I is ‘close to’[5] the notion package in Directive 90/314. The wording ‘close to’, instead of ‘identical’ or ‘the same as’, indicates that the CJEU did not intend to interpret such two terms as having exactly the same meaning.

Since Article 15(3) Brussels I remains unchanged in its successor Article 17(3) Brussels Ibis, this article argues that Art.17(3) Brussels Ibis Regulation has been two steps behind Art.6(4)(b) Rome I when it comes to the protection of consumers in package travel contracts. In order to close the gap, a uniform concept of package travel should be given. It is suggested that Art.17(3) Brussels Ibis should adopt the concept of package travel provided in Directive 2015/2302.

  1. Deleting package travel contracts from the exception of transport contracts

Despite the adoption of a uniform concept, Article 17(3) Brussels Ibis and Article 6 Rome I only cover packages containing transport, as an exception of transport contracts. Packages not including transport do not fall under the exception of transport contracts. Since all package travel contracts should be protected as consumer contracts, regardless of containing transport or not, it is more logical to delete package travel contracts from the exception of transport contracts in Art.6(4)(b) Rome I as well as Art.17(3) Brussels Ibis and establish a separate provision to regulate package travel contracts.

To this end, Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I can be simplified as ‘This Section/article shall not apply to a contract of transport/carriage’, whereas package travel contracts are expressly regulated as consumer contracts in a separate provision. In this regard, the framework in Article 5 Rome Convention is a better solution, according to which package travel contracts can be expressly included in Article 17 Brussels Ibis/Article 6 Rome I as follows:

Notwithstanding Article 17(3) Brussels Ibis/Article 6(4)(b) Rome I, this Section/article shall apply to a contract relating to package travel within the meaning of Council Directive 2015/2302/EU of 25 November 2015 on package travel and linked travel arrangements.

[1] The predecessor of Articles 17-19 Brussels Ibis Regulation.

[2] The predecessor of Article 6 Rome I Regulation.

[3] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:740, para. 43

[4] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:273, opinion of advocate general, para. 49.

[5] Case C-585/08 Pammer, ECLI:EU:C:2010:740, para. 36.

Chinese Court Enforces Singaporean Judgment based on De Jure Reciprocity

By Zheng Sophia Tang, Wuhan University Institute of International Law and Academy of International Law and Global Governance

Chinese courts recognize and enforce foreign civil and commercial judgments under two circumstances: the existence of treaty obligations and the existence of reciprocity. In the past, Chinese courts relied solely on de facto reciprocity to enforce foreign judgments, which requires evidence to prove the courts in the foreign country enforced Chinese judgments in previous cases. Some courts have adopted an even tougher approach and rejected enforcing foreign judgments even though one positive precedent exists in the foreign country, arguing one case is not enough to prove reciprocity. The application of de facto reciprocity causes difficulty to enforce foreign judgments in Chinese courts. It makes enforcement impossible if no application was made to the foreign court to enforce Chinese judgment in the past, and if the other country also adopts the de facto reciprocity. It also makes proving reciprocity difficulty, especially if the foreign country has no comprehensive case report system.

After China commenced the One-Belt-One-Road initiative, efforts were made to relax the threshold to prove reciprocity. The Supreme Court has proposed, in two OBOR opinions, that China should adopt a presumed reciprocity approach, which presumes reciprocity exists if the other country demonstrates intention to establish judicial cooperation with China and no negative precedence exists.[1] However, since these opinions are not legally binding, they are not enough to reverse court practice. Although more Chinese courts enforce foreign judgments after 2013, they still need the proof of one positive case in the foreign country.

20 July, 2021, Shanghai No 1 Intermediate Court decided to recognize and enforce the Singaporean monetary judgment.[2] Although de facto reciprocity already exists between China and Singapore and Chinese courts enforced Singaporean judgments based on de facto reciprocity in the past,[3] this case justifies the decision based on de jure reciprocity. The judgment states: “The reciprocal relationship exists between China and Singapore, because Chinese judgments can be recognized and enforced in Singapore under the same conditions. On the other hand, Singaporean High Court recognized and enforced Chinese judgments in the past, and precedents to recognize and enforce Singaporean judgments also exist in Chinese courts. It shows de facto reciprocal relationship also exists between China and Singapore.”

It is clear that this judgment discusses both de facto and de jure reciprocity. The court considers whether Chinese judgments may be recognized and enforced in Singapore as a matter of law. However, proving de jure reciprocity is not easy. Unless the foreign law completely prohibits enforcing foreign judgments in the absence of treaty obligations, most law will provide conditions for foreign judgments enforcement. The conditions would allow foreign judgments enforced in certain circumstances and not others. In other words, no law would say foreign judgments can be recognized in all circumstances. How to assess if these conditions are enough to make enforcement possible in law? What if the foreign law provides different conditions to enforce foreign judgments from Chinese law? What if the foreign law require de facto reciprocity and China has not yet enforced judgments from this country, rendering enforcement of Chinese judgments practically impossible in the foreign court?

The Shanghai court adopts the equivalent condition test. It takes the seat of Singaporean court and imagine what may happen if this application is a Chinese judgment seeking Singaporean enforcement. It concludes that as far as Singaporean court can enforce Chinese judgments under the same condition, de jure reciprocity exists. In other words, it applies the Singaporean standard to assess enforceability of this judgment. The problem is it may lead to the result that between two countries de jure reciprocity exits in some cases but not others. As reciprocity refers to the relationship between two countries, it should be a systematic status, and not variable according to the different fact of a case.

Another difficulty is that it is usually hard for Chinese courts to know exactly how judicial decision of a foreign court may be made, especially how judicial discretion is going to be exercised in a foreign country. The assessment of the potential enforceability of Chinese judgments in the foreign court in the same condition can only be based on black-letter law which may not be so precise to test de jure reciprocity. Of course, it is arguable that de jure reciprocity only needs a general possibility for a foreign court to enforce Chinese judgments, but not specific Chinese judgments are definitely enforceable in the foreign country. If so, the equivalent condition test is not appropriate to assess de jure reciprocity.

One may suggest the legal comparability test. It argues that de jure reciprocity depends on whether the foreign law provide legally comparable conditions for FJR as Chinese law. This suggestion is also problematic, because many countries’ law provide much lower threshold to enforce foreign law than Chinese law. For example, they do not require reciprocity as a pre-condition. These laws are not comparable to Chinese law, but it is hard to argue that Chinese judgments cannot be enforced in those countries as a matter of law.

The third suggestion is the no higher threshold test. It suggests that if the foreign law does not make it more difficult to enforce Chinese judgments, de jure reciprocity exists. However, what if the foreign law adopts de facto reciprocity like most Chinese courts do in practice? Can we argue the foreign law provide higher threashold because one Chinese court uses de jure reciprocity? Or we consider these two laws provide simialr threshold and treat de jure reciprocity exists, even though the foreign court actually cannot enforce Chinese judgments because Chinese courts did not enforce judgments from this country before?

Anyway, although the test for de jure reciprocity is not settled, the Shanghai judgment shows a laudable progress. This is the first case that de jure reciprocity has been applied in a Chinese court. It shows a serious attempt to deviate from de facto reciprocity. Of course, since de facto reciprocity also exists between China and Singapore, this judgment does not bring significant difference in result. It is curious to see whether the Chinese court will apply de jure reciprocity alone to enforce foreign judgments in the future, and whether any new tests for de jure reciprocity may be proposed in the future judgments.

[1] Several Opinions of the Supreme People’s Court Concerning Judicial Services and Protection Provided by People’s Courts for the Belt and Road Initiative], [2015] Fa Fa No. 9, para 6; The Opinions of the SPC Regarding the People’s Court’s Further Provision of Judicial Services and Guarantees for the Construction of the Belt and Road, Fa Fa [2019] 29, para 24.

[2] (2019) Hu 01 Xie Wai Ren No 22.

[3] Singaporean case, Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte ltd [2014] 2 SLR 545; Chinese case, Kolmar Group AG v. Jiangsu Textile Industry Import and Export Corporation, (2016) Su 01 Xie Wai Ren No 3.

News

Two Private International Law Events in Vienna, 20 and 21 June 2024

On 20 and 21 June 2024, two events on private international law will be taking place in Vienna, both co-hosted by Florian Heindler (Sigmund Freud University, Vienna).

Ehrenzweig Lectures on 20 June 2024

June 2024 marks the fiftieth anniversary since Ehrenzweig passed away. On this occasion, a conference on the Austrian Ministry of Justice will host a conference  to honour Albert Armin Ehrenzweig and his extraordinary jurisprudential legacy. The conference is jointly organised by the Interdisciplinary Association of Comparative and Private International Law (IACPIL), the University of Vienna, and the University of California, Berkeley.

Confirmed speakers are Richard Buxbaum (University of Berkeley), Eric Jayme (University of Heidelberg), Andrew Bradt (University of Berkeley), and Jeremy Heymann (University Lyon III).

More details can be found here. Participation is free of charge. Please register via office@igkk.org. Read more

Strategic Litigation – Conference in Munich, 20/21 June 2024

On 20 and 21 June, a conference dedicated to Stratetic Litigation, organized by Christiane von Bary (LMU Munich) and Tobias Lutzi (University of Augsburg), will take place at the Bavarian Academy of Sciences and Humanities in Munich, Germany.

The event, which will be held in German and is free of charge for all attendants, aims to tackle a variety of questions raised by a seemingly growing number of lawsuits that pursue aims beyond the dispute between the litigating parties – only some of which appear societally desireable.
The discussants, many of whom have first-hand experience, will address a number of overarching aspects such as the the role of courts in policy-making or the potential of collective-redress mechanisms and legal tech before diving more deeply into two particularly prominent examples: climate-change litigation and SLAPPs.

More information can be found on this flyer.

Please this link to register for the event.

Out now: RabelsZ 88 (2024), Issue 1

The latest issue of RabelsZ has just been released. In addition to the following articles it contains fantastic news (mentioned in an earlier post today): Starting with this issue RabelsZ will be available open access! Enjoy reading:

Symeon C. Symeonides, The Torts Chapter of the Third Conflicts Restatement: An Introduction, pp. 7–59, DOI: https://doi.org/10.1628/rabelsz-2024-0001 Read more