Opinion of the Advocate General — ECLI:EU:C:2015:244
Date: 2015-04-16
Language of the case: Italian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, it therefore appears possible to describe the situation that results from divorce or legal separation of a couple with children at home, namely that the initial determination of the maintenance allowance and the allocation of the parents’ responsibility to contribute to their children’s maintenance must be raised — as well as, by virtue of similarity, matters relating to parental authority — in the context of the proceedings initiated to secure a divorce or legal separation. 63. Because of the binding nature of the requirement that account be taken of the child’s best interests, the court with jurisdiction to entertain the proceedings must respect the criterion of proximity, to the exclusion of any other. 64. In the dispute in the main proceedings, the best interests of the child therefore require that jurisdiction of the Italian courts be declined in favour of that of the courts of the Member State in which the children are habitually resident, namely the courts of the United Kingdom, those latter courts, moreover, having jurisdiction to entertain the proceedings concerning parental responsibility in accordance with Article 8(1) of Regulation No 2201/2003. 65. It follows, admittedly, in a situation such as that in the main proceedings, that the parties’ freedom to choose the court having jurisdiction is limited. That does not appear to be questionable or at variance with the fundamental principles governing this area since the parties in question are the parents and the restriction of their choice is imposed upon them for the sake of the best interests of their child/children. IV – Conclusion 66. In the light of the foregoing considerations, I propose that the Court’s reply to the question referred by the Italian Corte suprema di cassazione should be as follows: (1) Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as meaning that, where there are main proceedings concerning legal separation of spouses and a request concerning maintenance obligations in respect of minor children is raised within the framework of those separation proceedings, the court dealing with those proceedings has jurisdiction to deal with that request concerning maintenance obligations. (2) Regard for the child’s best interests requires, in this case, that territorial jurisdiction should be determined by the criterion of proximity. 1 Original language: French. 2 OJ 2009 L 7, p. 1, corrigendum at OJ 2011 L 131, p. 26. 3 ‘The Charter’. 4 The New York Convention of 20 June 1956 on the recovery abroad of maintenance and the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children. 5 OJ 1978 L 304, p. 36. Convention as amended by the successive conventions relating to the accession of new Member States to that convention (the Brussels Convention). 6 See pages 24 and 25 the Jenard Report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1). 7 OJ 2001 L 12, p. 1. See Article 5(2) of Regulation No 44/2001. 8 See recital 9 in the preamble to Regulation No 4/2009. 9 See, in this regard, Commission Decision 2009/451/EC of 8 June 2009 on the intention of the United Kingdom to accept Regulation No 4/2009 (OJ 2009 L 149, p. 73). 10 Council Regulation 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). 11 C‑195/08 PPU, EU:C:2008:406. 12 Paragraph 51. 13 See judgment in C (C‑376/14 PPU, EU:C:2014:2268), paragraph 56. See also, for the taking into account of the best interests of the child when the Court interprets Regulation No 2201/2003, judgments in A (C‑523/07, EU:C:2009:225); Detiček (C‑403/09 PPU, EU:C:2009:810); Purrucker (C‑256/09, EU:C:2010:437); and Mercredi (C‑497/10 PPU, EU:C:2010:829). 14 C‑491/10 PPU, EU:C:2010:828. 15 Paragraph 60 and the case-law cited. Emphasis added. 16 C‑400/10 PPU, EU:C:2010:582. 17 On this subject, see, A. Devers, ‘Les praticiens et le droit international privé européen de la famille’, Revue Europe, No 11, November 2013, study 9, paragraph 22 et seq. 18 Paragraph 60. 19 Paragraph 61. 20 See ‘Article 3: Intérêt supérieur de l’enfant’, Revue Droit de la famille, No 11, November 2006, file 16, concerning Article 3 of the Convention on the Rights of the Child signed in New York on 20 November 1989 and ratified by all Member States. Article 3(1) provides that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.