View of the Advocate General — ECLI:EU:C:2009:762
Date: 2009-12-09
Language of the case: Slovenian
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: Slovenia

Summary of the Judgment 1. Preliminary rulings – Urgent preliminary ruling procedure – Conditions (Rules of Procedure of the Court of Justice, Art. 104b) 2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Provisional and protective measures – Wrongful removal of a child (Council Regulation No 2201/2003, Arts 2(11) and 20(1)) 3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Provisional and protective measures – Change of custody of a child (Council Regulation No 2201/2003, Art. 20(1)) 4. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Provisional and protective measures – Respect for the fundamental rights of the child as laid down in the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Art. 24; Council Regulation No 2201/2003, Art. 20) 1. A request by a referring court for the reference to be dealt with under an urgent procedure pursuant to Article 104b of the Rules of Procedure is justified if it is based on: – the existence of an enforceable judicial decision adopting protective measures, taken by a court of a Member State and giving custody of the child to the father, – a contrary judicial decision adopting protective measures, taken by a court of another Member State and giving custody of the child to the mother, – the need to act quickly, since a delayed decision would be contrary to the interests of the child and could lead to an irreparable change for the worse in the relationship between the child and the father, – the provisional nature of the measure adopted in the proceedings for protective measures concerning the custody of the child, which of itself demands urgent action by the Court, in order not to prolong the state of legal uncertainty. (see paras 29-31) 2. Article 20 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, must be interpreted as not allowing 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. If a change of circumstances resulting from a gradual process such as the child’s integration into a new environment were enough to entitle a court of a Member State not having jurisdiction as to the substance to adopt a provisional measure amending the measure in matters of parental responsibility taken by a court of another Member State with jurisdiction as to the substance and declared enforceable in the territory of the former Member State, any delay in the enforcement procedure in the requested Member State would contribute to creating the conditions that would allow the former court to block the enforcement of the judgment that had been declared enforceable. Such an interpretation would undermine the very principles on which that regulation is based, in particular that of the mutual recognition of judgments given in the Member States established by that regulation. The recognition of a situation of urgency in a case in which the change in the child’s situation derives from a wrongful removal within the meaning of Article 2(11) of that regulation also runs counter to the regulation’s aim of deterring the wrongful removal or retention of children between Member States. To accept that a measure involving a change of parental responsibility could be taken under Article 20(1) of the regulation would amount, by consolidating a factual situation deriving from wrongful conduct, to strengthening the position of the parent responsible for the wrongful removal. (see paras 45, 47-49, operative part) 3. As is apparent from the wording of Article 20(1) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, provisional measures must be taken in respect of persons in the Member State in which the courts with jurisdiction to take such measures are located. A provisional measure in matters of parental responsibility ordering a change of custody of a child is taken not only in respect of the child but also in respect of the parent to whom custody of the child is now granted and of the other parent who, following the adoption of the measure, is deprived of that custody. (see paras 50-51) 4. Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, observes the principles of the Charter of Fundamental Rights of the European Union, seeking in particular to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter. Article 20 of that regulation cannot therefore be interpreted in such a way that it can be used by the parent who has wrongfully removed the child as an instrument for prolonging the factual situation caused by his or her wrongful conduct or for legitimating the consequences of that conduct. A measure which prevents the maintenance on a regular basis of a personal relationship and direct contact with both parents can be justified only by another interest of the child of such importance that it takes priority over the interest underlying that fundamental right. However, a balanced and reasonable assessment of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment, must in principle be performed in proceedings before the court with jurisdiction as to the substance in accordance with the provisions of Regulation No 2201/2003. (see paras 53, 57, 59-60)