Challenges of the Knowledge Society (May 2024)
RESIDUAL JURISDICTION VERSUS FORUM NECESSITATIS IN EU FAMILY LAW
Abstract
In the area of judicial cooperation in civil matters, the Council passed a number of regulations under art. 81(1) TFEU, adopting family law provisions with cross-border implications. These measures aimed at approximating the laws, regulations and administrative provisions of the Member States. Among these measures, this paper will analyse the provisions on residual jurisdiction in Council Regulation (EU) 2019/1111 of 25.06.2019 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and concerning international child abduction (Brussels IIb or ter Regulation) in comparison with the provisions on forum necessitatis under Regulation (EC) no. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Measures to approximate the laws of the Member States in cross-border family law, in particular in the case of conflict of jurisdiction, should be able to solve the problems faced by the courts of the Member States when dealing with a dispute in this area. This purpose requires not only the „approximation” of legal acts but also their unification at EU level. With this study we aim to examine the two types of jurisdictions, residual and forum of necessity, and to establish the similarities and differences between them. We will then try to identify the reasons why the Council opted for different regulation of the jurisdiction in question in the family law sub-branches of the Regulations, analyse whether the two legal institutions are likely to achieve their purpose and, finally, we will present our arguments for proposing the adoption of a unitary provision on the matter.
