Main trends in the recent case law of Court of Justice of the European Union Table of Content

Transcription

1 Main trends in the recent case law of Court of Justice of the European Union Table of Content Case C-92/12, Health Service Executive v S. C., A. C. (26 April 2012)... 2 Case C-400/10 PPU, J. McB. v L. E. (5 October 2010)... 3 Case C-211/10 PPU, Doris Povse v Mauro Alpago (1 July 2010)... 4 Case C-491/10 PPU, Joseba Andoni Aguirre Zarraga v Simone Pelz (22 December 2010)... 5 Case C-497/10 PPU, Barbara Mercredi v Richard Chaffe (22 December 2010)... 7 Case C-256/09, Bianca Purrucker v Guillermo Vallés Pérez (15 July 2010)... 8 Case C-523/07, A. (2 April 2009) Case C-403/09 PPU, Jasna Detiček v Maurizio Sgueglia (23 December 2009) Case C-195/08 PPU, Inga Rinau (11 July 2008) Case C-435/06, C. (27 November 2007)

2 Case C-92/12, Health Service Executive v S. C., A. C. (26 April 2012) Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility - Regulation (EC) No 2201/ Article 56 - Procedures for consultation and consent Procedure: reference for a preliminary ruling - High Court of Ireland. Content of the case: child was habitually resident in Ireland, where the child has been placed in care on many occasions. Child's behaviour was aggressive and placing herself at risk, therefore the court issued judgment ordering placement of the child in a secure care institution in England. In the present case, which relates to a judgment by an Irish court ordering, for a specified time, the crossborder placement of a child of Irish nationality, habitually resident in Ireland, in a secure care institution situated in England, the Second Chamber, as the Chamber designated in accordance with the second subparagraph of Article 9(1) of the Rules of Procedure as responsible for cases referred to in Article 104b of those Rules in the period from 7 October 2011 to 6 October 2012, considers it useful to obtain information on the mechanism of consultation on and consent to such a judgment in the United Kingdom, for the purposes of Article 56 of 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 (OJ 2003 L 338, p. 1). Article 56(3) of Council Regulation (EC) No 2201/2003 states that the procedures for consultation or consent referred to in Article 56(1) and (2) are to be governed by the national law of the requested Member State. Operative part of the judgment: 1. A judgment of a court of a Member State which orders the placement of child in a secure institution providing therapeutic and educational care situated in another Member State and which entails that, for her own protection, the child is deprived of her liberty for a specified period, falls within the material scope of Council Regulation 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/ The consent referred to in Article 56(2) of Regulation No 2201/2003 must be given, prior to the making of the judgment on placement of a child, by a competent authority, governed by public law. The fact that the institution where the child is to be placed gives its consent is not sufficient. In circumstances such as those of the main proceedings, where a court of a Member State which made the judgment on placement is uncertain whether a consent was validly given in the requested Member State, because it was not possible to identify with certainty the competent authority in the latter State, an irregularity may be corrected in order to ensure that the requirement of consent imposed by Article 56 of Regulation No 2201/2003 has been fully complied with. 3. Regulation No 2201/2003 must be interpreted as meaning that a judgment of a court of a Member State which orders the compulsory placement of a child in a secure care institution situated in another Member State must, before its enforcement in the requested Member State, be declared to be enforceable in that Member State. In order not to deprive that regulation of its effectiveness, the decision of the court of the requested Member State on the application for a declaration of enforceability must be made with particular expedition and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect. 4. Where a consent to placement under Article 56(2) of Regulation No 2201/2003 has been given for a specified period of time, that consent does not apply to orders which are intended to extend the duration of the placement. In such circumstances, an application for a new consent must be made. A judgment on placement made in a Member State, declared to be enforceable in another Member 2

3 State, can be enforced in that other Member State only for the period stated in the judgment on placement. Case C-400/10 PPU, J. McB. v L. E. (5 October 2010) 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. The Court of Justice rules that the wrongfulness of removal of a child depends exclusively on the existence of rights of custody conferred by the national law applicable, in breach of which this removal takes place. Fundamental Rights: Articles 7 and 24 of the Charter. Procedure: preliminary reference from the Supreme Court (Ireland). Content of the case: Mr. McB, an Irish national, and Ms. E., a British national, lived together as an unmarried couple and had three children. In July 2009, the mother fled from Ireland to England with the children. The father claimed that the children had been removed wrongfully. The referring court asked whether Regulation No 2201/2003 precluded national legislation according to which the acquisition of rights of custody by a child s father, where he is not married to the child s mother, is dependent on the father s obtaining a judgment from a national court awarding such rights of custody to him. The European Court of Justice (ECJ) clarified that, for the purposes of applying Regulation No 2201/2003, rights of custody include the right to determine the child s place of residence. Regulation No 2201/2003, however, does not determine who must have such rights of custody, but refers this issue to the law of the Member State where the child was habitually resident immediately before the removal. Under Irish law, the natural father does not have rights of custody in respect of his child, unless those rights are conferred on him by an agreement entered into by the parents or by a court judgment, whereas such rights of custody automatically belong to the mother. Thus, the ECJ held that whether a child s removal is wrongful for the purposes of applying the Regulation is entirely dependent on the existence of rights of custody, conferred by the relevant national law. The question was whether Article 7 Charter affected this interpretation. With reference to Article 51 Charter, the ECJ held that the Charter should be taken into consideration solely for the purposes of interpreting Regulation No 2201/2003, and there should be no assessment of national law as such. Pursuant to Article 52(3) Charter, the ECJ argued that since Article 7 Charter contains rights corresponding to those guaranteed by Article 8(1) of the European Convention of Human Rights (ECHR), Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the European Court of Human Rights (ECtHR). The ECJ referred to a previous case, in which the ECtHR held that national legislation granting by operation of law, parental responsibility for a child solely to the child s mother is not contrary to Article 8 of the ECHR, interpreted in the light of the 1980 Hague Convention, provided that it permits the child s father to ask the national court with jurisdiction to revise the award of that responsibility. In addition, the ECJ held that Article 7 Charter had to be interpreted in accordance with the rights of the child (Article 24 Charter), and particularly the right of a child to maintain on a regular basis personal relationships and direct contact with both of his or her parents. The ECJ ruled that Article 24 did not preclude a situation where, for the purposes of 3

4 applying Regulation No 2201/2003, rights of custody are granted, as a general rule, exclusively to the mother, and a natural father possesses rights of custody only as the result of a court judgment. Operative part of the judgment: 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, must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child's father, where he is not married to the child's mother, is dependent on the father's obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that regulation. Case C-211/10 PPU, Doris Povse v Mauro Alpago (1 July 2010) Under an urgent preliminary ruling procedure, the Court specifies the arrangements for judicial cooperation in the case of unlawful removal of a child from one Member State to another Member State. Procedure: reference for a preliminary ruling: Oberster Gerichtshof Austria. Content of the case: This judgment is part of legal proceedings between an Italian national and his Austrian ex-partner concerning the custody of their child. The mother having left Italy, where the couple lived, with the child, despite a judicial decision prohibiting her from doing so, the Italian court granted the father an order for the immediate return of the child. The request was made to enforce this judgment to the Austrian courts, to which the mother had applied to obtain custody of the child. The case has come before the Austrian Supreme Court. Referred a request for an urgent preliminary ruling, the Court of Justice has had the opportunity to clarify certain key aspects of the Regulation applicable in this case, i.e. Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, which establishes the rules of jurisdiction in the case of unlawful removal of a child. Concerning both the determination of the court with jurisdiction and the enforcement of the judgments which it may come to give, the Court confirms on this occasion the central role conferred by the Regulation on the court with jurisdiction of the Member State in which this child was habitually resident before this removal. The Regulation provides firstly that the courts of the Member State in which the child was habitually resident immediately before removal have jurisdiction. However, this jurisdiction may be transferred to a court in another Member State in specific cases set out in a limitative list. This is the case in particular when the child has resided in this other Member State for at least one year, has settled in his or her new environment and "a judgment on custody that does not entail the return of the child" has been issued by the court which initially had jurisdiction. The Court specified that an minterim order by the court with jurisdiction does not constitute a "judgment on custody". Only a final judgment, by which the court of the country of origin decides on the settlement of the custody of the child, may have the effect of transferring the jurisdiction of this court to the courts of the Member State to which the child has been removed. Regarding, secondly, the enforcement of the judgments issued by the court with jurisdiction determined in this way, Regulation (EC) No 2201/2003 provides that a judgment ordering the return 4

5 of the child, duly certified, is enforceable. In the present judgment, the Court recalls that the court of the Member State of enforcement can do no more than declare such a judgment to be enforceable. The merits of the judgment as such may be challenged only before the court with jurisdiction of the Member State of origin. Its enforcement cannot be refused either on account of a subsequent judgment handed down by a court of the Member State of enforcement, awarding custody of the child to the parent who has removed him or her, or even because, as a result of a change of circumstances arising after its adoption, it might be seriously detrimental to the best interests of the child. In this last case, in the absence of transfer of jurisdiction under the conditions which have just been recalled, it is the court of the Member State of origin which must be seized. Operative part of the judgment: 1. Article 10(b)(iv) of 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, must be interpreted as meaning that a provisional measure does not constitute a 'judgment on custody that does not entail the return of the child' within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed. 2. Article 11(8) of Regulation No 2201/2003 must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child. 3. The second subparagraph of Article 47(2) of Regulation No 2201/2003 must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child. 4. Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment. Case C-491/10 PPU, Joseba Andoni Aguirre Zarraga v Simone Pelz (22 December 2010) Judicial cooperation in civil matters Regulation (EC) No 2201/2003 Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility Parental responsibility Rights of custody Child abduction Article 42 Enforcement of a certified judgment ordering the return of a child handed down by a (Spanish) court with jurisdiction Power of the requested (German) court to refuse enforcement of that judgment in a case of serious infringement of the child s rights. Procedure: reference for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Celle (Germany). Content of the case: In Aguirre Zarraga, pursuant to divorce proceedings before Spanish courts, the father was provisionally awarded rights of custody. The mother moved to Germany and settled there. After the Summer holidays, the mother kept her daughter in Germany. Spanish courts ordered 5

6 the return of the child to Spain. The competent German court made a reference to the European Court of Justice asking whether, in circumstances such as those in the main proceedings, a court may exceptionally oppose the enforcement of a judgment ordering the return of a child. The judgment ordering the return had been certified on the basis of Article 42 of Regulation No 2201/2003 by the Spanish court, stating that it had fulfilled its obligation to hear the child before handing down its judgment on the award of rights of custody. The referring court, however, argued that such hearing had not taken place, which was contrary to Article 42 Regulation, interpreted in accordance with Article 24 of the Charter. The Court refers the following questions to the European Court of Justice: 1. Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power to examine the matter, pursuant to an interpretation of Article 42 of the Brussels IIbis Regulation in conformity with the Charter on Fundamental Rights? 2. Is the court of the Member State of enforcement obliged to enforce notwithstanding the fact that, according to the case-file, the certificate issued by the court of the Member State of origin under Article 42 of the Brussels IIbis Regulation is clearly inaccurate? The judgement: The European Court of Justice responded that the court in the Member State of enforcement may not oppose the judgment ordering the return. The Court pointed out that it is a requirement of Article 24(1) of the Charter that children should be able to express their views freely and that the views expressed should be taken into consideration on matters which concern the children, in accordance with their age and maturity. Yet, the Court ruled that it was not a requirement of Article 24 Charter or 42(2)(a) Regulation that the court of the Member State of origin obtain the views of the child in every case by means of a hearing, but that the right of the child does require that the legal procedures and conditions are made available to enable the child to express his or her views freely. Eventually, the Court stated that it is solely for the national courts of the Member State of origin to examine the lawfulness of that judgment with reference to the requirements imposed by Article 24 Charter and Article 42 Regulation No 2201/2003. Operative part of the judgment: In circumstances such as those of the main proceedings, the court with jurisdiction in the Member State of enforcement cannot oppose the enforcement of a certified judgment, ordering the return of a child who has been wrongfully removed, on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42 of 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, interpreted in accordance with Article 24 of the Charter of Fundamental Rights of the European Union, since the assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin. 6

7 Case C-497/10 PPU, Barbara Mercredi v Richard Chaffe (22 December 2010) Judicial cooperation in civil matters Regulation (EC) No 2201/2003 Matrimonial matters and parental responsibility Child whose parents are not married Concept of habitual residence of an infant Concept of rights of custody Procedure: Reference for a preliminary ruling - Court of Appeal (England & Wales) (Civil Division). Facts: The unmarried father issued proceedings 2 days after the mother removed the child to France. The High Court ordered the return of the child and subsequently made provisional and then final Declarations that the child was habitually resident in England at the time the proceedings commenced and that her continued retention in France was in breach of rights of custody of the father and the court. Meanwhile the father pursued Hague Convention proceedings in France. The French Court did not refer to the provisional English declarations and concluded that the father had no rights of custody at the time of removal and rejected the Hague application. The High Court then made final declarations and the father sought to appeal the French Hague Convention decision. The French Central Authority failed to lodge an appeal in time. The mother then appealed against the Declarations and return orders made by the High Court. The Court of Appeal referred 3 questions to the Court of Justice of the European Union. They were: (1) Please clarify the appropriate test for determining the habitual residence of a child for the purpose of: Article 8 and Article 10 of the Regulation No 2201/2003; (2) Is a court an institution or other body to which rights of custody can be attributed for the purposes of the provisions of Regulation [No] 2201/2003? (3) Does Article 10 have a continuing application after the courts of the requested Member State have rejected an application for the return of the child under [the 1980 Hague Convention] on the basis that Articles 3 and 5 are not made out? In particular, how should a conflict between a determination of the requested State that the requirements of Articles 3 and 5 of [the 1980 Hague Convention] are not met and a determination of the requesting State that the requirements of Articles 3 and 5 are met be resolved? Operative part of the judgment: 1. The concept of 'habitual residence', for the purposes of Articles 8 and 10 of 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, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State - other than that of her habitual residence - to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case. 7

8 If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child's habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child's presence, under Article 13 of the Regulation. 2. Judgments of a court of a Member State which refuse to order the prompt return of a child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to the jurisdiction of a court of another Member State and which concern parental responsibility for that child have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State. Significance of the Decision: The Court re-affirmed and explained the test that must be applied in relation to the determination of habitual residence. This test must be taken to supersede all domestic authorities on the point. However the Court of Appeal subsequently concluded that the test was essentially the same as existing English jurisprudence. This may yet require further exploration by the English courts for a number of reason, not least that the Court of Appeal held (in effect) that the existing approach to the loss of habitual residence required modification in the light of the judgment. The CJEU judgment though must now be seen as the primary source of law on the issue of habitual residence. As or more importantly the CJEU confirmed the primacy of the jurisdiction of the courts of habitual residence over Hague courts. Thus a determination in a Hague court that the father had no rights of custody could be over-ridden by the decision of the courts of the country of habitual residence. This approach is wholly consistent with previous ECJ/CJEU decisions which have stressed the primacy of the substantive jurisdiction over Hague. It further reinforces the contention that domestic proceedings should not be held in suspension pending the outcome of Hague proceedings. In declining to answer the 2nd question the CJEU made some surprising observations about the applicability of the Hague Convention following lawful removals. They suggested that the Hague would not apply if there was a lawful removal. This would mean that wrongful retention cases were not covered by the Hague Convention which plainly cannot be right as they are covered both by the Hague Convention and Article 10 of BIIR. It is not clear what the CJEU were getting at in the observations they made. Case C-256/09, Bianca Purrucker v Guillermo Vallés Pérez (15 July 2010) Judicial cooperation in civil matters Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility Regulation (EC) No 2201/2003 Provisional, including protective, measures Recognition and enforcement Procedure: Reference for a preliminary ruling: Bundesgerichtshof - Germany. Facts: (The European Court of Justice had previously laid out the requirements for courts to issue these kinds of orders (see Detiček), but a question had arisen as to whether courts in other Member States must recognize these provisional orders, as per Article 21 which requires courts to recognize judgments without requiring any additional special procedures for recognition. In Purrucker, this 8

9 question arose from the facts. Thus, the European Court of Justice took the opportunity to settle this question). Bianca Purrucker went to live with Guillermo Pérez in Spain, where in May 2006 she gave birth to their twins prematurely. Soon, the parents split and Bianca wanted to go back to Germany. The son left the hospital in September 2006, whereas the daughter had to stay in the hospital until March Before leaving Spain, Bianca signed a custody agreement with Guillermo. Bianca left with the son to Germany in February 2007, but left behind the daughter, who was still in the hospital. Despite the signed agreement, Guillame began custody proceedings in Spain which resulted in a provisional order asserting Spanish jurisdiction, granting him full custody of both children, a ne exeat order, and giving him possession of the children's passports. Bianca filed for custody in Germany. Then, Guillame filed suit in Germany to enforce the Spanish provisional measures. Both the court and the appellate court recognized the provisional Spanish orders. The Bundesgerichthof however referred the question to the European Court of Justice. The judgement: The European Court of Justice began by clarifying that Article 20 only involves orders by courts that do not have substantive jurisdiction over the custody dispute at issue. Then the Court examined how to determine the Spanish court's basis for jurisdiction. The problem was you see, that the Spanish court did not clearly state its basis for jurisdiction in its order. Rather the court cited domestic and international agreements in addition to 2201/2003. The Court s opinion reminded that European Union law takes precedence over national and international laws in this case. Further, cases like these assume mutual trust between courts. Nonetheless, when a court does not clearly state that it is making an Article 20 provisional order, other courts will necessarily have to make the call as to the jurisdictional bases for making the order. In that case, the court may question whether the order met the requirements under Article 20. The Court helpfully reminds us that Article 20 orders must: (1) involve urgent matters; (2) pertain to persons or assets in the Member State; and (3) be provisional Thus, when determining the nature of a "jurisdictionally ambiguous" order, it falls under Article 20 only if it "falls within the scope of that provision solely where it satisfies the conditions laid down in Article 20." These provisional orders "prevail over an earlier judgment adopted by a court of another Member State which has substantive jurisdiction[,]" but "a judgment which does not fall within the scope of Article 20 of the regulation because it does not comply with the conditions laid down in that provision cannot take precedence over such an earlier judgment (see the situation referred to in Detiček, in particular paragraph 49)." As relevant to this case, the Court decided that Article 20 orders to not enjoy the extra-territorial recognition and enforcement that other orders do under Article 21, because this was not 2201/2003's drafters' intent (and the Court cited 2201/2003 plus 1347/2000 and their related documents and reports, and the 1996 Hague Convention). The Court also took a moment to remind courts that domestic procedural rules--like the relatively harsh Spanish rules against appealing provisional decisions must be set aside if they do not comport with European Union law, i.e., 2201/2003 for this case. See, e.g., Simmenthal, Factortame, and Leffler. Most importantly, the Court definitively decided that Article 20 provisional orders do not enjoy immediate recognition in fellow Member State courts. Operative part of the judgment: 9

10 The provisions laid down in Article 21 et seq. of 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, do not apply to provisional measures, relating to rights of custody, falling within the scope of Article 20 of that regulation. Case C-523/07, A. (2 April 2009) Judicial cooperation in civil matters Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility Regulation (EC) No 2201/2003 Substantive scope Definition of civil matters Decision relating to the taking into care and placement of children outside the family home Child s habitual residence Protective measures Jurisdiction Procedure: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland). The ECJ has adopted a fact-based test in this case in determining habitual residence. Facts: A mother of three children lived with the children s stepfather in Finland. The family then moved to Sweden in 2001 until they traveled in Finland during the summer of 2005, intending to spend their holiday in Finland, staying in a camper van and with relatives. The family was still in Finland in October 2005, when they applied for public housing. In November, a local welfare agency legally removed the children to a childcare unit because the agency determined that the children were abandoned. The mother and stepfather opposed the agency s action in court but failed. On appeal, the Finnish appellate court submitted four questions to the European Court of Justice. The judgement: The question related to habitual residence asked for clarity on how to determine habitual residence when children with a permanent residence in one Member State carry out a peripatetic lifestyle in another Member State. Instead of focusing on intent or the centre of interests, the court held that the concept of habitual residence under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family s move to that State, the child s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case. Thus, the Court named roughly eight factors to consider when determining habitual residence: (1) duration, (2) regularity, (3) conditions, (4) reasons for the child s presence, (5) school attendance, (6) linguistic knowledge, (7) family relationships, and (8) social relationships. Operative part of the judgement: 1. Article 1(1) of 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, must be interpreted as 10

11 meaning that a decision ordering that a child be immediately taken into care and placed outside his original home is covered by the term 'civil matters', for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection. 2. The concept of 'habitual residence' under Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case. 3. A protective measure, such as the taking into care of children, may be decided by a national court under Article 20 of Regulation No 2201/2003 if the following conditions are satisfied: the measure must be urgent; it must be taken in respect of persons in the Member State concerned, and it must be provisional. 4. The taking of the measure and its binding nature are determined in accordance with national law. After the protective measure has been taken, the national court is not required to transfer the case to the court of another Member State having jurisdiction. However, in so far as the protection of the best interests of the child so requires, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Article 53 of Regulation No 2201/2003, the court of another Member State having jurisdiction. 5. Where the court of a Member State does not have jurisdiction at all, it must declare of its own motion that it has no jurisdiction, but is not required to transfer the case to another court. However, in so far as the protection of the best interests of the child so requires, the national court which has declared of its own motion that it has no jurisdiction must inform, directly or through the central authority designated under Article 53 of Regulation No 2201/2003, the court of another Member State having jurisdiction. Case C-403/09 PPU, Jasna Detiček v Maurizio Sgueglia (23 December 2009) Judicial cooperation in civil matters - Matrimonial matters and matters of parental responsibility - Regulation (EC) No 2201/ Provisional measures concerning custody - Decision enforceable in a Member State - Wrongful removal of the child - Other Member State - Other court - Custody of the child granted to the other parent - Jurisdiction - Urgent preliminary ruling procedure. Procedure: reference for a preliminary ruling: Višje Sodišče v Mariboru Slovenia. 11

12 Facts: The Slovenian mother and Italian father were married and lived in Italy. The child, Antonella, was born on 6 September On 25 July 2007 the divorce court in Tivoli, Rome, granted interim custody to the father and ordered that the child be temporarily placed in a children s home with nuns. On the same day the mother took the child to her native Slovenia, where they are still living. On 22 November 2007 the regional court in Maribor, Slovenia declared the Italian judgment enforceable, which was upheld by the Supreme Court on 2 October The father then brought enforcement proceedings before the district court in Slovenia. On 2 February 2009 that court suspended enforcement. On 28 November 2008 the mother had made an application to the regional court in Maribor for provisional custody and an order was made on 9 December 2008 under Article 20 of the Brussels II regulation as amended ( Brussels IIA Council Regulation 2201/2003), which allows provisional, including protective, measures, on the basis that the child had now settled in Slovenia with her mother and therefore circumstances had changed. This came before the Court of Appeal in Maribor, which referred the matter to the European Court of Justice and was heard on 23 December 2009 under the urgent procedure. The judgement: The ECJ rejected that there was jurisdiction in this case under Article 20, because this would undermine the very principles on which the regulation was based. It held that for jurisdiction under Article 20 three conditions had to be satisfied: 1. The measures must be urgent; 2. They must be taken in respect of persons or assets in the member state where the courts are situated; and 3. They must be provisional. The strongest rejection of the court was that the matter was urgent. The court held that the reason why the child was arguably now settled in Slovenia was because there had been a delay in recognising the Italian decision and that could not create urgency and in any event would undermine the very principles of the regulation by strengthening the position of the parent responsible for the wrongful removal. The court held that there was no jurisdiction under Article 20, because the order for provisional custody affected the father, who was not situated in Slovenia and therefore in the territory of the court. The court also criticised that the order would undermine the child s fundamental right under Article 24(3) of the Charter of Fundamental Rights of the European Union to maintain a personal relationship with both parents, which can only be restricted if it is justified by another interest of the child that takes priority. However, this ought to be decided by the court with jurisdiction as to substance. Operative part of the judgment: Article 20 of 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, must be interpreted as not allowing, in circumstances such as those of the main proceedings, a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction under that regulation as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State. 12

13 Case C-195/08 PPU, Inga Rinau (11 July 2008) Justice, freedom and security Enforcement of a decision ordering the return of a child wrongfully retained in another Member State urgent preliminary ruling procedure Procedure: Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas. Facts: In 2003, Mrs Rinau, a Lithuanian national, married a German national and lived with him in Germany. The couple separated in 2005 and divorce proceedings were initiated; their daughter Luisa went to live with her mother. In July 2006, Mrs Rinau left Germany with Luisa to settle in Lithuania. In August 2006, the competent German court awarded provisional custody of Luisa to her father, but in December 2006 the Lithuanian court rejected the application for Luisa to be returned which Mr Rinau submitted on the basis of the 1980 Hague Convention and Regulation No 2201/2003 ( Brussels IIa Regulation ). In March 2007, that decision was overturned by a new decision on appeal ordering the return of the child to Germany, which was not however enforced. Finally, in June 2007 the competent German court granted the Rinaus divorce, awarded permanent custody of Luisa to Mr Rinau and ordered Mrs Rinau to send Luisa back to Germany to the child s father. To this end, that court issued a certificate, pursuant to the Brussels IIa Regulation, rendering its return decision of June 2007 enforceable and allowing for its automatic recognition in another Member State. Mrs Rinau subsequently made an application to the Lithuanian courts for the nonrecognition of the return decision adopted by the German court. Those proceedings ended in the Supreme Court of Lithuania, which referred to the Court of Justice questions concerning the interpretation of the Brussels IIa Regulation, inter alia concerning the ability of a court of a Member State to certify that a return decision made by it is enforceable although, following the overturning of a decision of the court of the other Member State refusing to return the child, the conditions in which that regulation provides for the issue of the certificate would no longer be met. The judgement: As to the substance of the case, the Court pointed out that the certificate providing for the enforceability of a judgment ordering the return of a child may be issued only if a judgment of nonreturn has been issued beforehand by a court of another Member State. However, the fact that such a judgment (in this case that of the Lithuanian court of December 2006 refusing to return Luisa) has in the meantime been overturned does not prevent the certificate from being issued. If the position were otherwise, there would be a risk that the Brussels IIa Regulation would be deprived of its useful effect, since the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child is wrongfully retained have been exhausted. The Court held that, once a non-return decision has been taken and brought to the attention of the court of origin, the certificate rendering the decision of that court enforceable may be issued even if the initial non-return decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. Since in this case no doubt had been expressed as regards the authenticity of that certificate, opposition to the recognition of the decision ordering return was not permitted and it was for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child. Operative part of the judgment: 1. Once a non-return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in Article 42 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition 13

14 and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. Since no doubt has been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child. 2. Except where the procedure concerns a decision certified pursuant to Articles 11(8) and 40 to 42 of Regulation No 2201/2003, any interested party can apply for non-recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand. 3. Article 31(1) of Regulation No 2201/2003, in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for nonrecognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make such submissions. Importance of the judgement: This judgment is particularly important since for the first time the Court applied the new urgent preliminary ruling procedure, established with effect from 1 March 2008 to allow the Court to deal with questions relating to the area of freedom, security and justice within a significantly shorter timescale. Accordingly, in this case the judgment was given only seven weeks after the reference to the Court, whereas the duration of a preliminary ruling procedure is currently an average of 20 months. Case C-435/06, C. (27 November 2007) Brussels II Revised (Council Regulation (EC) 2201/2003 as amended) applied to the enforcement of a single decision ordering a child to be taken into care and placed outside his original home in a foster family; such a decision, adopted in the context of public law rules relating to child protection, was covered by the term 'civil matters'. (First ECJ judgement on Brussels II bis) Procedure: reference for a preliminary ruling under Article 234 EC from the Korkein hallintooikeus (Finland). Facts: Applicant C. has lived with her two minor children and her husband in Sweden. In February 2005, the competent Swedish authority ordered due to investigations which had been carried out in beforehand the immediate taking into custody of both children as well as their placement in a foster family outside the home. These protective measures are regarded as public acts in Finland and Sweden. Before the decision of the acting Swedish authority was approved by the Länsrätt, C. had moved with her children to Finland. After the approval of the decision by the Länsrätt, the Swedish police requested administrative assistance from the Finnish police with regard to the enforcement of the Swedish decision. Subsequently, the Finnish police ordered the immediate taking into custody of the children as well as their committal to the Swedish social authorities. After her action against the acts taken by the Finnish authorities at the Hallinto-oikeus had failed, the 14

15 mother, C., appealed to the highest administrative court in Finland, the Korkein Hallinto-oikeus, and claimed first to set aside the decision of the Hallinto-oikeus, second to revoke the order made by the police and third to bring back the children to Finland. The Korkein Hallinto-oikeus, however, had doubts whether the Brussels II bis Regulation was applicable. This was decisive since in case of the applicability of the Regulation, Finnish civil and not administrative courts would be competent in this case. Further, rules existing within the framework of an cooperation among the administrative authorities in the Nordic States would be superseded by the Regulation. Consequently, the Korkein Hallinto-oikeus referred with decision of 13 October 2006 the following questions to the ECJ for a preliminary ruling: a) Does Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (the Brussels 11a Regulation) 2 apply, in a case such as the present, to the enforcement of a public law decision in connection with child welfare, relating to the immediate taking into custody of a child and his or her placement in a foster family outside the home, taken as a single decision, in its entirety; (b) or solely to that part of the decision relating to placement outside the home in a foster family, having regard to the provision in Article 1(2)(d) of the regulation; (c) and, in the latter case, is the Brussels IIa Regulation applicable to a decision on placement contained in one on taking into custody, even if the decision on custody itself, on which the placement decision is dependent, is subject to legislation, based on the mutual recognition and enforcement of judgments and administrative decisions, that has been harmonised in cooperation between the Member States concerned? If the answer to Question 1(a) is in the affirmative, is it possible, given that the Regulation takes no account of the legislation harmonised by the Nordic Council on the recognition and enforcement of public law decisions on custody, as described above, but solely of a corresponding private law convention, nevertheless to apply this harmonised legislation based on the direct recognition and enforcement of administrative decisions as a form of cooperation between administrative authorities to the taking into custody of a child? If the answer to Question 1(a) is in the affirmative and that to Question 2 is in the negative, does the Brussels IIa Regulation apply temporally to a case, taking account of Articles 72 and 64(2) of the regulation and the abovementioned harmonised Nordic legislation on public law decisions on custody, if in Sweden the administrative authorities took their decision both on immediate taking into custody and on placement with a family on and submitted their decision on immediate custody to the administrative court for confirmation on , and that court accordingly confirmed the decision on ? Operative part of the judgement: 1. Article 1(1) of 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, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term civil matters for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection. 15