Jurisdictional competence of private international law in the matter of civil status actions in accordance with the rules of the European Union.
1.1. General considerations relating to the civil status actions
Civil actions are those legal proceedings which have as their object elements of civil status of an individual (Beleiu, 2006: 376; Boroi, 2002: 351; Petrescu, 1968: 160; Ungureanu & Munteanu, 2011: 222). These actions follow either the establishment or modifying of the civil status of a physical person, through contesting or by changing an element of civil status. These actions shall not be confused with legal actions to annul, alter, rectify and complete civil status acts or their marginal mentions (Hamangiu, Rosetti-Balanescu & Baicoianu, 1996: 341-343; Ciobanu, 1996: 246). In this context it is very important to specify that the action in cancellation, rectification, modification and completion of the civil status acts are different from civil actions through their object: the first refers to incorrect entries in the registers of civil status, the other refers to an element of civil status. This differentiation presents interest on the effects produced by the two classes of actions: the effects of actions in the first category concern only the contents of the document or record, while the actions of the second category have direct effect on the civil status of the person (Muresan, Boar & Diaconescu, 2000: 80).The actions in cancellation, rectification, modification and completion of the civil status acts or marginal terms thereof shall serve, ultimately, to the necessity of being a full compliance between the marital status of a person and its acts of civil status (Lupulescu, 1980: 17-18).
Taking into consideration the freedom of movement and the mobility of individuals within the European and international space, the determination of the Court's material and territorial competence, the power of final judgments with respect to civil actions, as well as recognition and enforcement of a judgment given in a Member State presents theoretical and practical importance.
As from 1 January 2007, the date of Romania's accession to the EU, the provisions of the European Union's regulations are directly applicable in the territory of Romania, without requiring a transposition into national law, it is necessary to know the provisions of the EU rules in the matter of the jurisdictional competence of private international law.
1.2. Brussels II bis Regulation
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 (Brussels II bis Regulation), entered into application on 1 March 2005, repeals and replaces 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 (Brussels II Regulation) which entered into force on 1 March 2001. The purpose of this regulation was to unify into a single text, the regulations on family aspects and those relating to parental responsibilities (Ancel & Muir-Watt, 2006: 131).The rules relating to jurisdictional competence of Regulation (EC) No. 2201/2003 contain provisions relating to disputes with a foreign element, in relation to a Member State, namely: exclusive competence in matters of divorce, separation and marriage annulment; exclusive competence in matters of parental responsibility; prorogation of jurisdiction in matters of parental responsibility; jurisdiction based on the child's presence; residual jurisdiction in matters of divorce and parental responsibility; precautionary and provisional measures, etc. This regulation is directly applicable to Romania in relation to the EU Member States, including the Kingdom of Denmark. In matters of civil status actions, we must emphasize that they do not fall within the scope of Regulation (EC) of the Council no. 44/2001 (Brussels I Regulation) because it contains express provision that its stipulations "shall not apply to the status and capacity of natural persons" [article 1, paragraph 2, let. a)].
1.3. The material scope of the Brussels II bis Regulation
According to article 1, par. 1, this Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility regarding issues such as: (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property.
Article 1, par. 3 establishes the situations in which this Regulation is not applicable, respectively:
(a) the establishment or contesting of a parent-child relationship;
(b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
(c) the name and forenames of the child;
(e) maintenance obligations;
(f) trusts or succession;
(g) measures taken as a result of criminal offences committed by children.
As regards judgments on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures (par. 8 of the Preamble of Brussels II bis Regulation).
1.4. Rules of jurisdictional competence
According to article 3 par. 1 of the Regulation, in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
--the spouses are habitually resident, or
--the spouses were last habitually resident, insofar as one of them still resides there, or
--the respondent is habitually resident, or
--in the event of a joint application, either of the spouses is habitually resident, or
--the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
--the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses. For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.
The court before which proceedings are carried out pursuant to article 3 shall be responsible also for the settlement of the counterclaim, insofar as this falls under the scope of this regulation.
Without prejudice to Article 3, a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides (conversion of legal separation into divorce).
It should be noted that, by applying the rules laid down in article 3 paragraph 1 of Regulation, only the competent Member State in terms of jurisdiction can be determined, the Court which has material and territorial jurisdiction may be established through the application of national rules of procedure in that Member State (Nicolescu, 2008: 98). The criteria listed in the article. 3 paragraphs 1 represent the only alternatives left to the parties' power of discretion. With no predetermined hierarchy between these criteria, the applicant will be able to choose the most advantageous criteria in order to obtain from the competent national court a judgment of termination, separation or annulment of marriage (Nicolescu, 2008: 98). From the analysis of these criteria results the European legislator's preference for competence based on residence in detriment of competence based on nationality which, while not ruled out, "is, due to the exigency of overlapping, subject to constraints that prohibit any branching and condenses it into a single element" (Ancel & Muir-Watt, 2006: 137). Thus, under the rules of competence covered by the Brussels II bis Regulation may also enter disputes which have points of contact with a third country, situation that can arise when nationality of one of the spouses or both spouses belongs to a non-Member State, but the competence in this matter is assigned to a court in a Member State on whose territory the habitual residence of the spouses or of at least one of them is situated.
Opportunity to opt for one of the criteria laid down in article 3 of the Regulation, however, is exclusive. Exclusive nature of jurisdiction under articles 3, 4 and 5 is reinforced by article 6, according to which "A spouse who: (a) is habitually resident in the territory of a Member State; or (b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her "domicile" in the territory of one of the latter Member States, may be sued in another Member State only in accordance with Articles 3, 4 and 5". Illustrative for understanding the exclusive nature of competence in matrimonial matters, determined according to the provisions of the Brussels II bis Regulation is the situation exemplified in the Annex to the Guide for the application of the new Brussels II Regulation: "A man who is a national of Member State A is married to a woman who is a national of Member State B. The couple is habitually resident in Member State C. After a few years, their marriage deteriorates and the wife wants to divorce. The couple can only apply for divorce before the courts of Member State C pursuant to Article 3 on the basis that they have their habitual residence there. The wife cannot seise the courts of Member State B on the basis that she is a national of this State, since Article 3 requires the common nationality of the spouses" (Guide for the application of the new Brussels II Regulation: 48).
In order to avoid the introduction of parallel actions in different Member States, and to prevent the pronouncement of irreconcilable judgments, Article 19 of the Regulation, making an application of the prior temporis principle, provides clear rules for dealing with situations of lispendens and dependent actions: "1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. (...) 3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised".
Another rule aiming the uniformity of judicial competence system in areas falling within the material scope of the Brussels II bis Regulation was introduced by Article 17: "Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction".
Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5 of the Regulation, jurisdiction shall be determined, in each Member State, by the laws of that State (residual jurisdiction). As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his "domicile" within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.
1.5. Seising of a court
According to the Article 16 par. 1 of Brussels II bis Regulation, a court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
Where a respondent habitually resident in a State other than the Member State where the action was brought does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defense, or that all necessary steps have been taken to this end.
Where the provisions of Regulation (EC) No. 1348/2000 does not apply, Article 15 of the Hague Convention of 15 November 1965 on the communication and notification abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the court or an equivalent document had to be transmitted abroad pursuant to that Convention.
1.6. Recognition of a judgment
With regard to the recognition of judgments, Article 21 of Brussels II bis Regulation stipulates:
"1. A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required.
2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.
3. Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognized. The local jurisdiction of the court appearing in the list notified by each Member State to the Commission pursuant to Article 68 shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought.
4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue".
Grounds for refusal of recognition of judgments handed down in matters relating to divorce, legal separation or annulment of marriage are covered by Article 22 of the Regulation:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defense unless it is determined that the respondent has accepted the judgment unequivocally;
(c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or
(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
By comparison, Article 168 of the Romanian Law no. 105/1992 on the regulation of private international law relations provides that recognition of a foreign judgment may be refused in any of the following cases:
1. the decision is the result of fraud committed in the procedure followed in other countries;
2. the decision violates public order of Romanian private international law; the violation of the provisions of article 151 relating to the exclusive competence of the Romanian jurisdiction constitutes a ground for refusal of the recognition;
3. the lawsuit was settled between the same parties in a decision, even if it is not final, by the Romanian courts or is undergoing trial in front of them at the date of seising the foreign court.
Recognition may not be refused for the only reason that the court which pronounced the foreign decision applied a law other than that determined by the Romanian private international law, out only if the process concerns the marital status and civil capacity of a Romanian citizen, and the solution adopted is different from that which would be reached according to the Romanian law.
In accordance with article 25 of the Brussels II bis Regulation, the recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.
Under no circumstances may a judgment be reviewed as to its substance (Article 26).
Article 27 of the regulation stipulates the conditions under which the procedure for the recognition of a judgment may be suspended. Thus, a court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.
Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognized and declared enforceable under the same conditions as judgments (Article 46).
1.7. Enforcement procedure
The enforcement procedure is governed by the law of the Member State of enforcement. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41 par. 1 or Article 42 par. 1 shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Article 41 par.1 or Article 42 par.1 cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.
2. Jurisdictional competence of private international law of the Romanian courts in matters of civil status actions according to the provisions of the new Civil Code and the Law no. 105/1992
2.1. Preliminary considerations
According to Article 2557 par. 3 of the new Civil Code, the stipulations of Book VII, entitled "Dispositions of Private International Law", "shall be applicable to the extent that international conventions to which Romania is a party, European Union law or the provisions of special laws do not establish another regulation". It should be noted that the new Civil Code repealed Articles 1-33 and Articles 36-147 of Law no. 105/1992 on the regulation of private international law, but he left in force the provisions of the Articles 148-157--Section "Jurisdictional Competence" within Chapter XII, entitled "Procedural rules in matters of private international law", of Law no. 105/1992 (Bacanu, Capatana & Zilberstein, 1992: 31-36). These rules are incidents to the extent that international treaties to which the Romanian state is a party do not establish other rules for determining the jurisdictional competence concerning the relations of private international law.
According to the Article 157 of Law no. 105/1992, the Romanian court seised shall verify ex officio its competence to address the process concerning the relations of private international law and, if it finds that it is not competent nor her and no other Romanian court, reject the application as not being within the competence of the Romanian courts. In the context of this verification, the Court is required to consider whether, in the dispute in question, EU rules or rules contained in the international conventions to which Romania is a party are incidents, rules which would have precedence over national provisions and that would cause another jurisdictional competence of private international law.
Article 153 of the same law regulates a case of legal prorogation of the jurisdictional competence of the Romanian courts, applicable including in matters of civil status actions: "Where the foreign jurisdiction is principally concerned to declare its non-competence to solve an action made by a Romanian citizen, this can be brought to a court in Romania with which process is most closely connected". This rule is likely to extend the competence of the Romanian court as necessity forum (Ungureanu, Jugastru & Circa, 2008: 238), being justified by the need to safeguard the interests of the Romanian citizen in the case the foreign court invokes its non-competence to settle the action brought by it (Nicolescu, 2008: 85; Stanescu, 2005: 79; Zilberstein, 1994: 50).
2.2. The exclusive jurisdictional competence of the Romanian courts in matters of civil status actions
Romanian courts are competent to judge the processes between a Romanian and a foreign part or only between foreign parts, natural persons or legal entities, under the conditions laid down in articles 148-164 of Law no. 105/1992 on the regulation of private international law relations.
According to Article 151 of Law no. 105/1992, the Romanian courts are exclusively competent to judge the processes concerning the relations of private international law relating to:
1. civil status acts drawn up in Romania and referring to persons residing in Romania, Romanian or foreign citizens without citizenship;
2. adoption's approval, if the person who is to be adopted is domiciled in Romania and is a Romanian or foreign citizen without citizenship;
3. guardianship and curatorship regarding protection of persons resident in Romania, Romanian or foreign citizens without citizenship;
4. putting under interdiction of a person who is domiciled in Romania;
5. termination, cancellation or nullity of marriage, as well as other disputes between spouses, except for those relating to immovable property situated abroad, if, at the date of application, both spouses are domiciled in Romania, and one of them is Romanian or foreign citizen without citizenship;
6. legacy of a person who has had the last residence in Romania;
7. buildings situated on the territory of Romania;
8. forced enforcement of an enforceable title in Romania.
It is worth noting that the situations listed in Article 151 represent cases where the Romanian state, as sovereign state, refuses the jurisdictional competence to foreign courts in order to provide added protection for Romanian citizens. Where the court of another sovereign state solves the respective process, the Romanian courts may refuse recognition and, where appropriate, the approval of enforcing on the Romanian territory of foreign judgments handed down in these circumstances (Stanescu, 2006: 20), pursuant to articles 168 and 174 of Law no. 105/1992.
According to Article 151 section 1 of Law no. 105/1992, the Romanian courts are exclusively competent to judge the processes concerning the relations of private international law relating to "the civil status acts drawn up in Romania and referring to persons residing in Romania, Romanian or foreign citizens without citizenship". The conditions to operate this exclusive jurisdictional competence is that the Act of civil status, as instrumentum probationis, must have been drawn up in Romania and to refer to a Romanian citizen or a stateless person residing in Romania. The civil status documents of foreign nationals, even if they are domiciled in Romania, do not fall within the scope of the provisions of Article 151 (Filipescu & Filipescu, 2002: 512). In the literature it has been argued that the text of Article 151 section 1 referred to Romanian citizens or stateless persons residing in Romania on the date of the action/investing the Court, irrespective of their domicile and nationality at the time of drawing up the civil status act (Nicolescu, 2008: 86).
Another provision affecting actions in matters of civil status, in accordance with the provisions of Article 61 par. 2 of Law no. 273/2004 on the legal status of adoption, is contained in Article 151 section 2 of Law no. 105/1992, which confers exclusive jurisdiction to the Romanian courts in respect of the processes related to the approval of the opening of adoption, custody for adoption and approval of adoption if the one who is going to be adopted is Romanian citizen or foreigner without citizenship and has his domicile in Romania (Avram, 2005: 63-88; Florian, 2006: 435).
In matters of civil status actions, provisions of point 5 of Article 151 of Law no. 105/1992 are also relevant. Under those provisions, the Romanian courts are exclusively competent to settle an action aimed at "termination, nullity or annulment of marriage, as well as other disputes between spouses, except for those relating to immovable property situated abroad, if, at the date of application, both spouses are domiciled in Romania, and one of them is a Romanian or foreign citizen without citizenship". Therefore, one of the requirements is that both spouses to reside in Romania on the date of the action, no matter if during the process one or both spouses establish the domicile abroad. Unlike section 1 of Article 151, the condition that the marriage act has been made in Romania was no longer kept.
2.3. Determination of the alternative jurisdictional competence of the Romanian courts in matters of civil status actions
Art. 150 of Law no. 105/1992 provides for a number of situations in which competence belongs to the Romanian courts as in the case of civil or commercial processes with a foreign element, among which we mention the processes between persons residing abroad, relating to civil status acts or facts registered in Romania, where at least one party is a Romanian citizen (section 1) and processes relating to declaring the presumed death of a Romanian citizen even though he was abroad at the time of the disappearance (section 3). Jurisdiction in accordance with these provisions is alternatively established, besides the Romanian courts being also able to be competent the courts or jurisdictional authorities of the state with which the legal relationship concerned has a binding element.
For engaging the jurisdiction of the Romanian courts in the hypothesis provided for in Article 150 section 1 it is necessary that the civil status acts or facts have been registered in Romania, and at least one of the parties residing abroad be a Romanian citizen (Zilberstein, 1994: 33). Thus, a divorce action or an action for declaration of absolute nullity or annulment of the marriage of two spouses who are domiciled abroad --in the same foreign state or in different states (Filipescu & Filipescu, 2002: 514; Nicolescu, 2008: 88), the marriage being registered in Romania, can be introduced and resolved by the Romanian court if at least one party is a Romanian citizen. The condition shall be considered satisfied if one of the parties holds more than one citizenship, including the Romanian--at the date of seising the court (Nicolescu, 2008: 89; Lazar, 2003: 165).
The requirement of domicile of parties abroad is a foreign element that draws the jurisdictional competence of private international law of the Romanian courts (Zilberstein, 1994: 33). The provisions of Articles 150 section 1 are more incidents where one of the parties, of Romanian nationality, domiciles in Romania, the other conditions laid down in the legal text having been fulfilled (Filipescu & Filipescu, 2002: 514).
Condition that the civil status acts or facts have been recorded in Romania means, in practice, the registration of birth, marriage or death in Romania, by the persons involved in the civil status operations and under the conditions laid down by Law no. 119/1996 concerning the civil status acts, with subsequent amendments and additions. Romanian law does not require the holding of Romanian citizenship for registration of civil status acts and facts. Thus, foreigners residing or temporarily in Romania may request registration of civil status acts or facts as well as Romanian citizens, under special conditions, if these are expressly required by law (Article 31 of Law no. 119/1996). If the three cumulative conditions required by the hypothesis provided for in Article 150 section 1--registration in Romania of acts or facts of civil status, domicile of the parties abroad, at least one of the parties to have Romanian citizenship- -are not satisfied, the Court is required to verify whether the Romanian courts' jurisdiction is drawn on the basis of Article 149 section 1 of Law no. 105/1992 (common law jurisdiction) which stipulates that: "The Romanian courts have jurisdiction if: 1. the defendant or one of the defendants has his domicile, residence or commerce fund in Romania; if the domicile of the defendant from abroad is not known, the action is inserted at the court of domicile or residence of the applicant".
If the dispositions of article. 149 section 1 of Law no. 105/1992 are not applicable, solving of these actions will be the competence of the foreign courts or judicial organs. In this situation, the Romanian court, noting that there is competent neither she nor another Romanian court, will reject the application as not being within the competence of the Romanian courts in accordance with Article 157 of the same law. The Romanian court cannot, however, decline its competence in favour of a foreign court because it has not the power to invest courts outside national judiciary system by disclaiming its own competence (Zilberstein, 1994: 49-50; Ungureanu, Jugastru & Circa, 2008: 243).
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Received: April 25 2014
Accepted: April 30 2014
Faisal Al-Tamimi, Ph.D. candidate, Faculty of Law and Social Sciences, University of Craiova, Phone: +40351.177.103; E-mail: firstname.lastname@example.org
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|Title Annotation:||Original Paper|
|Publication:||Revista de Stiinte Politice|
|Date:||Apr 1, 2014|
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