Council Regulation EC 2201/2003 of 27 November 2003 (hereinafter Regulation 2201/2003) regulates, inter alia, jurisdiction in matrimonial matters and in matters of parental responsibility. Council Regulation EC 4/2009 of 18 December 2008 codifies, amongst other, the rules on jurisdiction in matters relating to maintenance.
Regulation 2201/2003 contains little innovative regulation, as it does NOT include aspects that affect the area of property, nor the breakdown of registered partnerships. On the other hand, it is pioneering in certain matters relating to parental responsibility; the regulation applies regardless of whether the parents are involved in matrimonial proceedings, so they do not have to be married. Matters such as filiation, adoption, emancipation, maintenance obligations, etc. are excluded. Regarding the geographical scope of application, it applies in all Member States (hereinafter referred to as Member States of the European Union), except Denmark.
In matters of PARENTAL RESPONSIBILITY, the general criterion for jurisdiction is the habitual residence of the child at the time the case is brought before the court. However, there are exceptions or different and subsidiary criteria, such as the subsidiary jurisdiction of the courts of the Member State where the child is located, or the jurisdiction of the court which, in the interests of the child, is best placed.
Alongside this Regulation, we should recall the existence of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Protection of Children. How do we know when to apply one or the other international regulation? The EC Regulation applies when the child is habitually resident in a Member State. Where the child is habitually resident in a State that is a member only of the Convention, then the latter applies.
On the other hand, Regulation 4/2009 is of particular interest, as it regulates MAINTENANCE OBLIGATIONS arising from a family relationship, kinship, marriage or affinity. As mentioned above, this is a subject expressly excluded from Regulation 2201/2003. The Judgment of the Court of Justice of the European Union of 20 March 1997 (Farell/Long case, case C-295/95) defined maintenance as a benefit established by law with the aim of alleviating the economic needs of certain persons and imposed on certain relatives or persons who have greater economic resources.
Interestingly, this Regulation does not depend, for its application, on whether the defendant is exclusively resident in a Member State, but there are different criteria, such as the residence of the creditor, or the court hearing an action relating to the status of persons, where the maintenance claim is ancillary, or the court hearing a parental responsibility action, where the maintenance claim is ancillary, for example. It is also important and strange that there should be a criterion based on the nationality of the parties, even if it is a subsidiary jurisdiction, bearing in mind that at Community level, the general and preferential criterion is habitual residence, regardless of the nationality of the parties.
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