VIEW OF ADVOCATE GENERAL
BOT
delivered on 9 December 2009 1(1)
Case C‑403/09 PPU
Jasna Detiček
v
Maurizio Sgueglia
(Reference for a preliminary ruling from the Višje sodišče v Mariboru (Slovenia))
(Urgent preliminary ruling procedure – Judicial cooperation in civil matters –Regulation (EC) No2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Wrongful removal of the child – Article 20 of Regulation No2201/2003 – Whether a judge in the requested Member State can take a provisional measure)
1.In this reference for a preliminary ruling, the Court is asked to rule on the scope of Article 20 of Council Regulation (EC) No2201/2003 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) No1347/2000.(2)
2.That provision provides that the courts of a Member State may, in urgent cases relating to those matters, take provisional or protective measures in respect of persons or assets in that State even if, under Regulation No2201/2003, the court of another Member State has jurisdiction as to the substance of the matter.
3.The facts of the case submitted to the Court are as follows. The spouses Jasna Detiček, of Slovenian nationality, and Maurizio Sgueglia, of Italian nationality, lived in Italy and had a daughter. In 2007, they began divorce proceedings in Italy and the Italian court with jurisdiction as to the substance decided to grant custody of the child provisionally to the father. On the very day when the provisional measure was taken by the Italian court, the mother travelled to Slovenia with the child and took up residence there. Thereafter, she requested and obtained from a Slovenian court a provisional measure granting her custody of her daughter.
4.The question is whether the court of the Member State where the child is could, in those circumstances, take such a provisional measure on the basis of Article 20 of Regulation No2201/2003.
5.On 27 October 2009, the Court decided to deal with this case under the urgent procedure, in accordance with Article 23a of the Statute of the Court of Justice of the European Union and Article 104b of the Rules of Procedure. In that procedure, Ms Detiček, the applicant in the main proceedings, Mr Sgueglia, the defendant in the main proceedings, the Slovenian Government and the European Commission, the only parties permitted to do so, lodged written observations. Further, a hearing was held on 7 December 2009.
6.In this view, I shall propose that the Court rule that Article 20(1) of Regulation No2201/2003, where a court of one Member State which has jurisdiction as to the substance has already taken a measure granting custody of a child provisionally to one of its parents, must be interpreted as not allowing a court of another Member State subsequently to take a decision granting custody of the child to the other parent.
7.I shall also indicate how, in my opinion, the applicable legal provisions and their common point of reference, namely the interests of the child, organise and require cooperation by the courts in the same common area of freedom, security and justice.
I–Legal background
A–The 1980 Hague Convention
8.The Convention on the Civil Aspects of International Child Abduction was concluded at The Hague on 25 October 1980(3) as part of the global organisation of cross-border cooperation in matters of civil and commercial law.
9.That convention lays down the procedural rules applicable to cases of child abduction in order to guarantee the child’s prompt return to the State of its habitual residence and to ensure the protection of rights of access.(4)
10.Article 12 of the 1980 Hague Convention is worded as follows:
‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
…’
11.Article 13 of the 1980 Hague Convention provides:
‘… the judicial or administrative authority of the … State [to which the child has been removed] is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a)the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b)there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
…’
B–Community law
12.The objective of Regulation No2201/2003, which replaces Regulation No1347/2000, is to create, within the area of freedom, security and justice, uniform rules of international jurisdiction in matters of divorce, legal separation or marriage annulment, and in matters of parental responsibility.
13.While under Regulation No1347/2000 jurisdiction in disputes relating to parental responsibility was restricted to those arising in the context of proceedings relating to divorce, annulment or separation, Regulation No2201/2003 extends the rules of jurisdiction to all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding.(5)
14.Article 1(1)(b) of Regulation No2201/2003 provides that the regulation is to apply, whatever the nature of the court or tribunal, in civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility.
1.The general rule of jurisdiction and the exceptions
15.Referring to the best interests of the child, Regulation No2201/2003 establishes the criterion of proximity as the general rule of territorial jurisdiction, but immediately introduces an exception, in particular, in certain cases of change of residence, as stated in Articles 8, 9, 10 and 12 of that regulation.
16.Thus Article 8(1) of that regulation provides that the court with jurisdiction in matters of parental responsibility is that of the Member State where the child is habitually resident at the time that court is seised, but the actual presence of the child, a concept which may differ from that of habitual residence, is the default ground of jurisdiction in the absence of any other ground.(6)
17.There are no exceptions to that general rule other than in specified circumstances where the court initially seised retains jurisdiction either to avoid a risk of conflict, or to ensure the continuation of proceedings legally commenced on the basis of a criterion of territorial jurisdiction which is consistent with Regulation No2201/2003 and is not disputed by one of the parties.
18.That is the case in respect of access rights in circumstances where a child moves lawfully from one Member State to another and acquires a new habitual residence there. In those circumstances, the courts of the Member State of the child’s former habitual residence are to retain jurisdiction during a three-month period following the move for the purpose of amending a judgment on access rights delivered in that Member State before the child moved.(7)
19.Further, Article 12(1)(a) and (b) of Regulation No2201/2003 provide for a prorogation of jurisdiction in favour of the court seised of proceedings relating to divorce, annulment or separation. Under those provisions, that court is to retain jurisdiction in any matter relating to parental responsibility connected with such matrimonial proceedings where at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the court has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility. That jurisdiction must, in addition, be compatible with the best interests of the child. It is to cease as soon as the judgment allowing the application for divorce, annulment or separation or judgments relating to parental responsibility have become final.(8)
20.Where no court of a Member State has jurisdiction under Articles 8 to 13 of Regulation No2201/2003, jurisdiction shall be determined, in each Member State, by the laws of that State.(9)
21.The best interests of the child can also justify a particular exception whereby a court of one Member State can decline jurisdiction in favour of a court of another Member State.
22.Accordingly, Article 15(1) of Regulation No2201/2003 provides:
‘… the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a)stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … or
(b)request a court of another Member State to assume jurisdiction …’
23.Under Article 15(2) of that regulation, paragraph 1 is to apply upon application from one of the parties, of the court’s own motion, or upon application from a court of another Member State with which the child has a particular connection,(10) provided that, in the last two cases, the transfer is made only if it is accepted by at least one of the parties.
2.The rules applicable specifically to unlawful removal of a child
24.In cases of unlawful removal of a child, the rules established by the 1980 Hague Convention continue to apply. They are however complemented by the provisions of Regulation No2201/2003, which take precedence over those of that convention.(11)
25.Article 2(11) of that regulation provides:
‘For the purposes of this Regulation:
…
the term “wrongful removal or retention” shall mean a child’s removal or retention where:
(a)it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention;
and
(b)provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.’
26.As regards the jurisdiction of courts, Article 10 of Regulation No2201/2003 provides that the courts of the Member State where the child was habitually resident immediately before the removal are to retain their jurisdiction.
27.However, in accordance with the criterion of proximity, jurisdiction is transferred to the courts of the Member State where the child has acquired a new habitual residence where:
(a)each person, institution or other body having rights of custody has acquiesced in the removal or retention
or
(b)the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i)within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii)a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time-limit set in paragraph (i);
(iii)a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv)a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
28.Article 11 of Regulation No 2201/2003 is headed ‘Return of the child’. Under Article 11(1), where a person having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a removed child, paragraphs 2 to 8 are to apply.
29.In particular, under Article 11(6) of that regulation, if a court of another Member State has made an order of non-return pursuant to Article 13 of the 1980 Hague Convention, that court must transmit a copy of that order and of the relevant documents to the court which has jurisdiction or the central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention.
30.Further, under Article 11(8) of Regulation No2201/2003, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under that regulation is to be enforceable in accordance with Section 4 of Chapter III of that regulation, in particular Articles 40, 42 and 43, in order to secure the return of the child.
31.Under Article 42 of Regulation No2201/2003, that decision ordering the return of the child is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.
32.For that purpose, the decision must be certified in the Member State of origin. The judge who has the task of certifying the decision ordering the return of the child is to issue the certificate only if all of three conditions are satisfied. It is stated in points (a), (b) and (c) of the first subparagraph of Article 42(2) of Regulation No2201/2003 that the certificate may be issued only if the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity, if the parties were given an opportunity to be heard, and if the court has taken into account in issuing its judgment the reasons for and evidence underlying the non-return decision.
3.The provisions common to divorce, annulment or separation and parental responsibility
33.To provide a remedy in a case of urgency, Article 20(1) of Regulation No2201/2003 provides that the courts of a Member State may take provisional or protective measures in respect of persons or assets in that State, even if the court of another Member State has jurisdiction as to the substance of the matter.
34.Those measures are to cease to apply, under Article 20(2) of that regulation, when the court of the Member State having jurisdiction as to the substance of the matter has taken the measures it considers appropriate.
4.The recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility
35.Under Article 21(1) of Regulation No2201/2003, judgments given in a Member State are to be recognised in the other Member States without any special procedure being required. Article 21(3) of that regulation provides that any party may apply for a decision that the judgment be or not be recognised.
36.Grounds for non-recognition of judgments relating to parental responsibility are set out in Article 23 of that regulation. In particular, such a judgment is not to be recognised if recognition is manifestly contrary to public policy or if that judgment was made without the child having been given an opportunity to be heard.
37.Further, under Article 24 of Regulation No2201/2003, the jurisdiction of the court of the Member State of origin may not be reviewed.(12)
38.Lastly, it is stated in Article 28(1) of that regulation that ‘[a] judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there’. Further, either party may bring an appeal against the decision on the application for a declaration of enforceability.(13)
5.Cooperation between central authorities in matters of parental responsibility
39.Under Article 53 of Regulation No2201/2003, each Member State is to designate one or more central authorities to assist with the application of the regulation. Their function is to communicate information on national laws and procedures, to take measures to improve the application of the regulation and to strengthen cooperation between the various central authorities in the Member States.(14)
40.Article 55 of that regulation provides that the central authorities are to take all appropriate steps to collect and exchange information on the situation of the child, on any ongoing procedures relating to parental responsibility, and on any decision taken concerning the child. In particular, they must take all appropriate steps to facilitate communications between courts for the application of Article 11(6) and (7) and Article 15 of that regulation.
C–National law
41.Article 411(1) of the Code of Civil Procedure (Zakon o pravdnem postopku)(15) provides that, in the course of proceedings relating to matrimonial disputes and disputes in the relationships between parents and children, the court may, on application by a party or of its own motion, order provisional measures concerning the custody and maintenance of children of both parties and provisional measures concerning the revocation or limitation of the right of access or concerning the manner in which the right of access is exercised.
42.Under Article 411(3) of that code, those provisional measures are to be adopted on the basis of the Law governing protective measures.
43.Under Article 267 of the Law on enforcement and protective measures (Zakon o izvršbi in zavarovanju),(16) a provisional measure may be adopted before judicial proceedings have been initiated, in the course of the proceedings or even after they have been concluded, so long as enforcement has not been effected.
44.Article 105(3) of the Law on marriage and family relations (Zakon o zakonski zvezi in družinskih razmerjih)(17) provides that if the parents, even with the help of the social services, do not agree on the custody of the children, the court shall decide, on the application of one or both parents, to grant the right of custody of all the children to one of them or to grant custody of certain of the children to one parent and of the other children to the other parent. The court may also decide of its own motion to grant custody of all or certain of the children to another person.
II–The facts in the main proceedings and the questions referred for a preliminary ruling
45.Ms Detiček, of Slovenian nationality, and Mr Sgueglia, of Italian nationality, married and lived in Rome for 25 years. Their daughter Antonella, of Slovenian nationality, was born on 6 September 1997.
46.Divorce proceedings were begun before the Tribunale ordinario di Tivoli (District Court, Tivoli, Italy). By order dated 25 July 2007, that court decided provisionally to grant custody of the couple’s child exclusively to MrSgueglia and to place the child in a children’s home of the Calasantian Sisters in Rome.
47.It is clear from the file submitted to the Court by the referring court, the Višje sodišče v Mariboru (Court of Appeal, Maribor), that the judge of the Tribunale ordinario di Tivoli did not want to grant provisional custody of the child to Ms Detiček because she was incapable of distinguishing the interests of the couple’s child from her own interests. Further, according to the Italian judge, Antonella refused to see her father. Consequently, that judge decided to grant provisional custody to Mr Sgueglia and to place Antonella in care, so that she might be detached from the dispute between her parents. It is moreover stated in the judgment delivered by the Italian judge that Ms Detiček herself proposed and chose the children’s home.
48.On the very day when that judgment was delivered, Ms Detiček and her daughter left Italy and travelled to Poljčane, in Slovenia, where at the present time they are still living.
49.By decision of the Okrožno sodišče v Mariboru (Regional Court, Maribor) of 22 November 2007, confirmed by the decision of the Vrhovno sodišče (Supreme Court, Slovenia) of 2 October 2008, the order of the Tribunale ordinario di Tivoli of 25 July 2007 was declared enforceable within the Republic of Slovenia and enforcement proceedings are under way before the Okrajno sodišče v Slovenski Bistrici (District Court, Slovenska Bistrica, Slovenia) for the child to be returned to the father and placed in the children’s home in Rome. That enforcement was stayed pending final disposal of the main proceedings.
50.On 28 November 2008, Ms Detiček made an application to the Okrožno sodišče v Mariboru for a provisional measure granting her custody of the child.
51.By order of 9 December 2008, the Okrožno sodišče v Mariboru allowed Ms Detiček’s application and granted her provisional custody of Antonella. It based its decision on the fact that the circumstances had changed and that it was in the interests of the child; the referring court provides no further detail of those circumstances.
52.However, it is clear from the documents submitted to the Court and, in particular, the order of 9 December 2008 that the changes in circumstances are the following. Antonella has now settled in Slovenia. The Slovenian judge considers that a return to Italy, with placement in a children’s home, would be contrary to her welfare, as that would cause her irreparable physical and psychological harm. Moreover, the judge talked to Antonella on 1 December 2008 and she expressed the wish to remain with her mother.
53.Mr Sgueglia’s challenge to that order before the same court was dismissed by order of 29 June 2009. The court justifies the adoption of the protective measure on the basis of Article 20 of Regulation No2201/2003 in conjunction with Article 13 of the 1980 Hague Convention.
54.Mr Sgueglia brought an appeal against the order of 29 June 2009 before the Višje sodišče v Mariboru which decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)Does a court of the Republic of Slovenia … have jurisdiction under Article 20 of Regulation [No2201/2003] to take [provisional] measures in a situation in which a court of another Member State, having by virtue of that regulation jurisdiction as to the substance, has already taken a [provisional] measure declared enforceable in … Slovenia?
(2)If the answer to the first question is in the affirmative, may a Slovenian court, pursuant to national law, as permitted by Article 20 of Regulation [No2201/2003], take a [provisional] measure under Article 20 of [that] regulation … amending or rendering inoperative a final and enforceable [provisional] measure taken by a court of another Member State which under [that] regulation has jurisdiction as to the substance?’
III–Analysis
55.By the questions referred for a preliminary ruling, the referring court asks essentially whether Article 20(1) of Regulation No2201/2003 can be interpreted, where a court of one Member State which has jurisdiction as to the substance has already delivered a judgment provisionally giving custody of a child to one of the parents, as allowing a court of another Member State subsequently to take a provisional measure granting custody of the child to the other parent.
A–Preliminary remarks
56.I believe that the following initial comments should be made.
57.First, it appears to me undeniable that the questions referred to the Court derive from a dispute following the wrongful removal of a child within the meaning of Regulation No2201/2003.
58.From the information given to the Court, it is clear that Ms Detiček left Italy, the State where the family was habitually resident, to travel to Slovenia with the couple’s child, Antonella, then 10 years old, on the very day when the Italian court seised of the proceedings for the couple’s divorce delivered a judgment provisionally granting custody of Antonella to her father, Mr Sgueglia. That situation, which is contrary to the wishes of the father, persists.
59.Consequently, the conditions established by Article 2(11) of Regulation No2201/2003, which define the wrongful removal of child as removal which ‘is in breach of rights of custody acquired by judgment … under the law of the Member State where the child was habitually resident immediately before the removal … provided that, at the time of removal … the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal’, are, in my opinion, satisfied.
60.Next, it appears necessary to state at the outset that if the provisions of Article 11 of that regulation, which organise judicial cooperation in the interests of the child, are obviously applicable to the proceedings for enforcement, that is for return of the child, brought by the father before the Okrajno sodišče v Slovenski Bistrici, they cannot, on the other hand, be applicable to the action brought by the mother before the Okrožno sodišče v Mariboru.
61.It is clear from Article 11(1) of that regulation that the return of the child by use of such a procedure can take place only ‘where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the [1980 Hague Convention] in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention’.
62.It is however apparent from the information provided to the Court that, first, Ms Detiček had no right of custody, even jointly, pursuant to the decision of the Tribunale ordinario di Tivoli which was delivered on 25 July 2007 and declared enforceable by decision of the Vrhovno sodišče of 2 October 2008, when, on 28 November 2008, she made an application to the Okrožno sodišče v Mariboru for the granting of the right of custody to herself and, secondly, her application was not made to obtain the return of Antonella. The circumstances of the present case are therefore not only different, but wholly incompatible with what is envisaged by Article 11(1) of Regulation No2201/2003.
63.Consequently, only the separate provisions of Article 20 of that regulation are relevant to the examination of the issue referred to the Court.
64.The crux of the question referred for a preliminary ruling by the national court is whether, in circumstances such as those of the main proceedings, where a court only has jurisdiction as a result of the wrongful removal of a child, it is possible to obtain from that court, on the basis of Article 20(1) of that regulation, a judgment which will thereafter be recognised as overriding.
65.The answer to that question depends in my opinion on how the following two questions are answered. First, as regards the issue referred to the Court, what are the fundamental principles of Regulation No2201/2003? Secondly, where do the provisions of Article 20 stand within the body of rules enacted by that regulation?
B–The system established by Regulation No 2201/2003 in the specific case of wrongful removal of a child
66.In my opinion, Regulation No2201/2003 rests on the followings premisses.
67.First, it must be recalled that the regulation is intended to contribute to the creation of a genuine common judicial area by establishing rules of jurisdiction in matrimonial matters and in matters of parental responsibility and by facilitating the recognition and enforcement of judgments in those matters.
68.To that end, it is essential that judgments delivered in a Member State are mutually recognised. As is stated in recital 2 of Regulation No2201/2003, the principle of mutual recognition of judicial decisions has been endorsed as the cornerstone for the creation of a genuine judicial area. That is why the recognition and enforcement of those judgments is based on the principle of mutual trust and grounds for non-recognition are kept to the minimum required.(18)
69.Secondly, it is important to bear in mind what is emphasised by the regulation itself, namely that the rules of jurisdiction it introduces were designed to serve the best interests of the child.(19) It follows, in my opinion unquestionably, that the rules of jurisdiction intended to combat the wrongful removal of children were also designed with that consideration in mind.
70.It was in the past an all too common practice in cases of divorces of spouses of different nationalities for whichever parent wanted to obtain custody of a child or children to take refuge with the child or children in question in his or her country of origin and to apply to the national courts for a ruling on custody, taking no account of any judgments delivered in another State.
71.The result was that the relationship between the child and the other parent was severed for many years if not permanently, a situation which no one can pretend is consistent with the interests of the child or, to employ an expression previously used by the Court, the child’s welfare.(20)
72.That approach, of which there are many distressing examples both in the recent past and currently, involves encouraging or hoping for a favourable response from the court seised because of a sort of judicial nationalism, something which is now absolutely incompatible with the idea of an area of freedom, security and justice. The child would thereby be denied essential and genuinely fundamental rights. Not only is it easily conceivable that because of family pressures on the child he will be denied, even when he is sufficiently mature, freedom of choice and the opportunity to use his freedom of movement to visit his other parent, he is quite simply robbed of his fundamental right to maintain a natural relationship with both of his parents.
73.In order to prevent practices which so greatly damage the child, Regulation No2201/2003 established mandatory rules of jurisdiction, their first objective being to prevent the behaviour which culminates in such practices and which constitutes blatantly unlawful conduct.
74.The specific prohibition of those practices therefore entails the absolute prohibition of forum shopping. The only effective remedy is to maintain and defend as inviolable the initial jurisdiction of the court seised as to the substance.
75.It is for that reason, in my opinion, that Regulation No2201/2003 first established in the interests of the child a general rule of jurisdiction based on the criterion of proximity,(21) and then set out, also in the interests of the child, exceptions, which include an exception applicable when a child has been wrongfully removed.
76.In that situation, which is governed by Article 10 of that regulation, jurisdiction is assigned to the court of the Member State where the child was habitually resident immediately before the wrongful removal. Jurisdiction can be assigned to the court of the Member State where the child is present only if that removal becomes lawful as a result of matters being put on a proper footing, either expressly or by implication, in the circumstances envisaged by the regulation.
77.Article 10 envisages circumstances in which the person who has the right of custody acquiesces in the removal(22) or where the court which has maintained its jurisdiction because the removal was wrongful issues a judgment which upholds the removal or makes a ruling on custody that does not entail return.(23) Further, as regards implication, Article 10 envisages circumstances where, within a period of one year, the person who was entitled to request the return of the child either does not do so, or withdraws an action for the return of the child and does not lodge a new request.(24) In all those circumstances, jurisdiction is to be transferred to the court of the Member State to which the child was removed.
78.It is obvious, from the information submitted to the Court by the referring court, that the circumstances of the present case are otherwise. Mr Sgueglia requested and obtained recognition of the Italian measure within the Republic of Slovenia and then brought an action before the Okrajno sodišče v Slovenski Bistrici for Antonella’s return through the enforcement of that measure.
79.Consequently, it is indisputable that under Regulation No2201/2003 the Italian court maintained its jurisdiction to the exclusion of that of any other court, as indeed the referring court itself recognises.
80.An answer can now, in the light of those considerations, be given to the questions referred for a preliminary ruling by the referring court.
C–The place of Article 20 of Regulation No 2201/2003 in the general structure of the regulation
81.This is the point which the referring court wishes by its questions to be determined when it asks, in essence, whether, on the basis of Article 20(1) of Regulation No2201/2003, where a court of a Member State having jurisdiction as to the substance has taken a measure provisionally granting custody of a child to one of its parents, a court of another Member State can thereafter take a decision granting custody of the child to the other parent.
82.Let us observe, first, that Article 20(1) of that regulation enables a court which does not have jurisdiction as to the substance to take, exceptionally, where urgency so requires, a provisional measure or a protective measure in respect of assets or persons in its territorial jurisdiction.
83.I consider that that provision is not a criterion of general jurisdiction, but a permission to take action under the dual pressures of the child being in danger and the need for urgent action to take the child out of danger.
84.As stated by the Commission in paragraph 27 of its observations, the effect of Article 20 of Regulation No2201/2003 is to enable the lex fori to be applied irrespective of any criterion of initial jurisdiction.
85.We have however seen that the rules of jurisdiction, including those of Article 10 of that regulation, are designed to serve the best interests of the child. Article 20 of that regulation, which derogates completely from those rules, can therefore come into play only in circumstances which are exceptionally serious and directly linked to the child’s situation.
86.The Court has already had occasion to clarify the scope of that provision in A. In that judgment, the Court held that the application of Article 20(1) of Regulation No2201/2003 is subject to three cumulative conditions, namely that the measures concerned must be urgent, they must be taken in respect of persons or assets in the Member State where the court seised of the dispute is situated, and they must be provisional.(25)
87.In the particular circumstances referred to the Court in that case, the Court stated that provisional measures taken pursuant to Article 20(1) of Regulation No2201/2003 ‘are applicable to children who have their habitual residence in one Member State but stay temporarily or intermittently in another Member State and are in a situation likely seriously to endanger their welfare, including their health or their development, thereby justifying the immediate adoption of protective measures’.(26)
88.To the example given by the Court, there can be added that provided by the Commission in the Practice Guide for the application of Regulation No2201/2003(27) which is, in my opinion, a good illustration of how Article 20 of that regulation is to operate.
89.That guide offers the example of a family travelling by car within a Member State other than that where they are habitually resident. The family are victims of an accident and both parents are left in a state of coma and incapable, therefore, of exercising their parental responsibility. The authorities of the Member State where the family is present must then be able rapidly to take provisional measures for the protection of the couple’s child, who has no relatives in that Member State. In such circumstances, those measures could involve placing the child in a children’s home.
90.It is very clear that this necessary exception to the general rule of jurisdiction can be justified only in exceptional circumstances, such as those which arise when there is an imminent danger which can be prevented only by urgent action in response to a situation which either produces the danger or is incapable of averting it.
91.I do not consider this to be the case in the main proceedings.
92.It is however not difficult to imagine the anxiety which a child must feel in a situation of that kind, an anxiety shared by all children whose parents, even after their separation, continue disputes which that separation was intended to allay and thereby neglect their fundamental duty as parents, namely to provide protection to the child, including protection from the consequences of their own disagreements.
93.It must however be stated that that anxiety does not appear to satisfy the abovementioned criteria justifying the intervention of a court which has not been seised as to the substance, especially the taking of a measure which is intended, by reversing it, to replace the measure taken as to the substance by the court which has jurisdiction.
94.The interpretation I propose may appear particularly restrictive. I consider that that is necessary not only because Article 20(1) of Regulation No2201/2003 is an exception to the rules of jurisdiction laid down by that regulation and, customarily, exceptions must be interpreted strictly, but also because that interpretation is dictated by the need to ensure that that regulation is effective.
95.In a particular situation such as that in the main proceedings, which represents exactly what that regulation was intended to prohibit, exceptions cannot be interpreted other than strictly and must never be the back door entrance for the return of the old practices. This is in the general interest of all children whose parents are of different nationalities and might be tempted by such practices if they were to find in the case-law grounds for adopting them because such exceptions were interpreted too broadly.
96.Moreover, under Article 20(2) of Regulation No 2201/2003, the measures taken cannot be other than provisional and subordinate to the judgment as to the substance.
97.In the circumstances referred to the Court, the situation is quite different. Far from taking action to support the court which has jurisdiction as to the substance, the Okrožno sodišče v Mariboru has in fact taken the directly opposite position, by issuing a decision as to the substance which reverses that adopted by the court which has jurisdiction and which is intended to take its place.
98.Consequently, the necessary conditions for the application of Article 20(1) of Regulation No2201/2003 are not satisfied in this case. It must therefore be stated that the court of first instance seised by Ms Detiček has no jurisdiction to rule on her application and that, in any event, it could not take the decisions which it did.
99.In my opinion, if it were to be accepted that the Slovenian court could in turn take a provisional measure in respect of the same subject-matter and the same case as the measure taken by the court which has jurisdiction as to the substance, that would in fact amount to a failure to recognise the measure taken by the court which has jurisdiction as to the substance and to a circumvention of the rules of jurisdiction, recognition and enforcement laid down by Regulation No2201/2003.
100.The principle of mutual recognition of judicial decisions, based on the principle of mutual trust between Member States, would be severely shaken and the system established by that regulation would consequently be called into question.
101.We have seen that the ambition of creating a common judicial area rests on those two principles. To accept that, even when a court in one Member State with jurisdiction as to the substance has already ruled on the case, a court of another Member State can take a decision in respect of a child would lead to the destruction of the reciprocal trust which must exist between the judicial systems of the Member States of the European Union.
102.Moreover, since the situation involves the wrongful removal of a child, contrary to Regulation No2201/2003 and the 1980 Hague Convention, I consider that if the procedure initiated by Ms Detiček were allowed and if the provisional measure taken by the Slovenian court were held to be valid, that would amount to legitimising blatantly unlawful conduct. The objective of both those pieces of legislation, the deterrence of abduction of children by parents, would be destroyed.
103.Does that mean however that the change in circumstances which is a consequence of Antonella’s wrongful removal must be ignored?
104.I do not think so. That change must be taken into account, because it is a fact which is not the responsibility of the child and which must be examined and assessed in the interests of the child. As the Court stated in Rinau,(28) Regulation No2201/2003 is based on the idea that the best interests of the child must prevail.(29) Moreover, it is stated in recital 33 of that regulation that it ‘in particular seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union’.(30)
105.However, in my opinion that should be achieved by complying with Regulation No2201/2003 and by using the procedures established by it.
106.As I read the provisions of that regulation, the court before which Mr Sgueglia brought an action for enforcement of the judgment of 25 July 2007 of the Tribunale ordinario di Tivoli is the court to which evidence and argument based on the interests of the child should be addressed, which, on that basis, may move the Italian court either to reconsider its decision or even, pursuant to Article 15 of that regulation, to transfer its jurisdiction.
107.I consider that that action for enforcement is in fact an action for return to which the safeguards of Article 11 of Regulation No 2201/2003 must apply.
108.Since that action has no other purpose than the return of the child by means of enforcement of the judgment of 25 July 2007, which was declared to be enforceable by the Vrhovno sodišče, the action must be accorded its true character, that being the only way of ensuring that there are identical safeguards whatever procedure is chosen. That interpretation appears to me, for that reason, to be the one demanded by the best interests of the child itself.
109.The background and inspiration for the various procedural possibilities offered by Article 11 of Regulation No2201/2003 to the courts concerned will then be the area of freedom, security and justice. That brings about the establishment not of competition but of dialogue, such as must naturally exist between the courts of a judicial area based on mutual recognition and which has no other goal or interest than to achieve the solution best suited to the interests of the child.
110.That is the spirit of the regulation itself. Whenever a child is wrongfully removed, the regulation, in conjunction with the 1980 Hague Convention, establishes a specific model of cooperation between the courts concerned with the objective of ensuring the immediate return of the child to the State where the child was habitually resident immediately before that removal, while laying down as many precautions as possible which the courts must take in the child’s interests.(31)
111.Accordingly, in the circumstances submitted to the Court, if the Okrajno sodišče v Slovenski Bistrici adopts an order of non-return, it must immediately, under Article 11(6) of Regulation No2201/2003, transmit a copy of that order and of the relevant documents to the Italian court, which should take account of them in its final judgment.
112.If that court were, none the less, to order the return of the child, its judgment would, as we saw in point 30 of this view, be directly enforceable.
113.That court should then, under Article 42(2) of Regulation No2201/2003, deliver a certificate to the court which took the decision of non-return certifying that the child was given an opportunity to be heard, unless that was not possible because of his or her age or degree of maturity, that the parties were also given that opportunity and that in issuing its judgment it took into account the reasons for and evidence underlying the decision of non-return.
114.Accordingly, the changes in circumstances put forward by Ms Detiček in support of her application will be taken into account in the framework of that cooperation.
115.On this view, the possibility that the final judgment of judges ruling on the fate of a child might be determined by tropistic nationalism would be unthinkable.
116.The very nature of acting as a judge, that is, the consequent duty of one bearing that responsibility, dictates that the judge as to the substance take into consideration the circumstances of the case when he makes his ruling and determines, to the exclusion of any other consideration, which solution best ensures that the interests of the child are protected, by providing the child with stability in the best possible environment, which includes the maintenance of normal and amicable relationships with each of the child’s parents.
117.In the light of all the foregoing considerations, I consider that Article 20(1) of Regulation No2201/2003 must be interpreted, when a court of one Member State which has jurisdiction as to the substance has already taken a measure provisionally granting custody of a child to one of its parents, as not allowing a court of another Member State thereafter to take a decision granting custody of the child to the other parent.
IV–Conclusion
118.In the light of the foregoing, I propose to the Court that the answer to the questions referred by the Višje sodišče v Mariboru should be as follows:
Article 20(1) of Council Regulation (EC) No2201/2003 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) No1347/2000, must be interpreted, when a court of one Member State which has jurisdiction as to the substance has already taken a measure provisionally granting custody of a child to one of its parents, as not allowing a court of another Member State thereafter to take a decision granting custody of the child to the other parent.
1– Original language: French.
2– OJ 2003 L338, p.1.
3– ‘The 1980 Hague Convention’.
4– See Article 1 of that convention.
5– See recital 5 in the preamble to Regulation No2201/2003.
6– See Article 13(1) of Regulation No2201/2003. Under that provision ‘[w]here a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction’.
7– Article 9(1) of Regulation No2201/2003.
8– See Article 12(2)(a) and (b) of that regulation.
9– See Article 14 of that regulation.
10– Under Article 15(3) of that regulation, the child has a particular connection to a Member State if, for example, after the court with jurisdiction as to the substance has been seised, that State has become the habitual residence of the child, if the child has resided habitually in that Member State or again if the Member State concerned is where one of the holders of parental responsibility is habitually resident.
11– See Article 60(e) of that regulation.
12– Under Article 2(5) of that regulation, the Member State of origin is that in which the judgment to be enforced was issued.
13– See Article 33(1) of Regulation No 2201/2003.
14– See Article 54 of Regulation No 2201/2003.
15– As amended (Uradni list RS, št 26/99).
16– Uradni list RS, št 51/98.
17– Uradni list RS, št 69/04.
18– See recital 21 of that regulation.
19– See recital 12 of Regulation No2201/2003.
20– See Case C‑523/07 A [2009] ECR I‑0000, paragraph 48.
21– See Article 8 of that regulation.
22– See Article 10(a) of Regulation No2201/2003.
23– See Article 10(b)(iv) of that regulation.
24– See Article 10(b)(i) and (ii) of that regulation.
25– Paragraph 47.
26– Paragraph 48.
27– Practice Guide for the application of the new Brussels II Regulation (updated version of 1 June 2005).
28– Case C‑195/08PPU [2008] ECR I‑5271.
29– Paragraph 51.
30– That provision states:
‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’
31– See recital 17 of that regulation and the preamble to the convention.