92. An example of a regional instrument dealing with the recognition and enforcement of voluntary agreements is 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, (hereinafter referred to as “Brussels IIa Regulation”). This Regulation provides for automatic recognition of all judgments without any intermediary procedure being required113 and deals with the recognition and
enforcement of authentic instruments and agreements.
93. Article 46 of the Brussels IIa Regulation states that “[d]ocuments which have been formally drawn up or registered as authentic instruments and are enforceable in one European Union (EU) Member State and also agreements between the parties that are
110 See in this regard W. Duncan “The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance: Comments on its Objectives and Some of its Special Features” in Yearbook of Private International Law, Vol. X, pp. 313-332, 2008. See also supra para. 5.
111 See in this context Art. 19(2) of the 2007 Convention stating that the rules on recognition and enforcement apply only to “parts of the decision which concern maintenance obligations” and thus enables States to recognise and enforce only the part of the decision dealing with maintenance without giving effect to other matters. See also Art. 21 of the 2007 Convention providing for severability and partial recognition and enforcement.
112 It can, however, be noted that both the 1996 and 2007 Conventions take into account that cases often arise in the context of divorce proceedings. The 1996 Convention considers this interrelationship of divorce proceedings and those concerning child measures of protection by recognising jurisdiction in Art. 10. The 2007 Convention provides in Art. 20(1) f) for a ground of indirect jurisdiction establishing that a decision given by an authority exercising jurisdiction on a matter of personal status or on parental responsibility will be recognised; see the Borrás / Degeling Report (op. cit. note 101), p. 163, para. 458.
113 See Chapter III, Arts 21-52 of the Brussels IIa Regulation. The grounds for non-recognition of a judgment are limited – see Recital 21 and Arts 22 and 23 of the Brussels IIa Regulation.
xxviii enforceable in the EU Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments”. The objective of the Brussels IIa Regulation in this regard is to grant authentic instruments and agreements the same position as judgments if they are enforceable in the State of their origin.114
94. Article 46 extends only to such authentic instruments and agreements which concern matters covered by the Regulation, which are divorce and parental responsibility.115 Examples of agreements falling within the scope of this article are
custody agreements approved by an administrative authority and enforceable agreements, in particular court settlements, concerning the right of access as well as agreements of enforceable character on the return of the child.116
95. The Brussels IIa Regulation does not provide a full definition of the terms “authentic instrument” and “agreement”. With regard to authentic instruments, Article 13(3) of the former Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses referred to “[...] documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also settlements which have been approved by a court in the course of proceedings and are enforceable in the Member State in which they were concluded […]”. The term has acquired an autonomous European meaning and certain elements can be inferred from this formulation. Further requirements have been added by the Court of Justice of the European Union (hereinafter “CJEU”).117
96. Accordingly, an authentic document must be something in writing whose author can be identified, formally drawn up or registered and enforceable in one Member State. To ensure the authenticity of the document, the CJEU requires that a public authority or other authority empowered for that purpose by the state of origin must have been involved in order to establish the authority of that document.118 Instruments drawn up
between private parties alone do not satisfy this condition. And while documents set up by ordinary lawyers are said not to meet the requirement, documents set up by notaries do.119 Agreements as included in Article 46 of the Regulation comprise a court settlement
– which will regularly fulfil the requirements of an authentic instrument as well – but also out-of-court-settlements if they are granted direct enforceability.120
114 See Recital 22 to the Brussels IIa Regulation stating: “Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to judgments for the purpose of the application of the rules on recognition and enforcement.”
115 The Brussels IIa Regulation applies to civil proceedings relating to divorce, separation and marriage annulment, as well as to all aspects of parental responsibility (see Art. 1). Art. 46 applies to authentic instruments drawn up or registered and agreements concluded in a Member State of the Regulation on or after 1 March 2005 (see Art. 64(1) and Art. 72).
116 See U. Magnus in Magnus / Mankowski, Brussels IIbis Regulation, Sellier European Law Publishers GmBH, Munich, 2012, Section 5, para. 5, p. 380. The author refers as examples to Finnish and Swedish law according to which custody agreements are approved by an administrative authority.
117 See, for example, ECJ (1999) I-03715 (Case C-260/97, Unibank A/S v. Flemming G. Christensen) referring to Art. 50 of the Brussels Convention (see in particular para. 14).
118 In Unibank A/S v. Flemming G. Christensen (ibid.), the court states (para. 15): “Since the instruments covered by Art. 50 of the Brussels Convention are enforced under exactly the same conditions as judgement, the authentic nature of such instruments must be established beyond dispute so that the court in the State in which enforcement is sought is in a position to rely on their authenticity. Since instruments drawn up between private parties are not inherently authentic, the involvement of a public authority or any other authority empowered for that purpose by the State of origin is needed in order to endow them with the character of authentic instruments.”
119 Magnus / Mankowski (op. cit. note 116), Section 5, para. 9, p. 382. 120 Ibid., para. 10, p. 382.
xxix 97. As mentioned above, authentic instruments and agreements must be enforceable as such in a Member State. With respect to authentic documents, it is common ground that despite the expression “in one Member State” in Article 46, the document must be enforceable in the Member State of origin, that is the State whose public or publicly empowered authority certified the authenticity of the document in question. It is the law of this State that determines the question of enforceability. The law of the Member State where recognition and enforcement is sought does not play a role, nor does the nationality or habitual residence of the involved persons.121 With respect to agreements,
the question whose law shall determine their enforceability is less settled.122 Article 46
states that “agreements between the parties […] are enforceable in the Member State in which they were concluded”. For court settlements, the law of the State whose court is seised when the settlement was concluded governs.
98. Since Article 46 declares authentic instruments and agreements as “enforceable under the same conditions as judgements”, it is a common understanding that also the formal requirements provided for by Articles 37 to 39 and Article 45 of the Brussels IIa Regulation have to be satisfied, namely that either the original or an authenticated copy of the authentic instrument or agreement needs to be produced.123
99. While the Brussels IIa Regulation, and specifically Article 46, provides the possibility of cross-border recognition of agreements in matters of parental responsibility, its application is obviously restricted to the EU Member States. The Regulation therefore does not provide assistance when a parent is relocating outside the EU or where recognition is sought outside the EU. In addition, it contains no possibility for choice of law or jurisdiction, aspects that parents might want to incorporate into an agreement that would have the possibility of being revised or modified by further agreement to meet changed circumstances.
100. The Brussels IIa Regulation furthermore does not provide a solution to the challenge that parents face if they negotiate a “package” and some of the issues included in the agreement fall outside the scope of the Regulation.