EuGH; 2022-07-14; C-572/21
Judgment;Summary;Decision by national courts in the field of European Union law — ECLI:EU:C:2022:562
Date: 2022-07-14
Language of the case: Swedish
Court formation: Fourth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Sweden;Germany

Translation C-572/21 - 1 
Case C-572/21 
Request for a preliminary ruling 
Date lodged:  
16 September 2021 
Referring court:  
Högsta domstolen (Sweden) 
Date of the decision to refer:  
14 September 2021 
Applicant:  
CC 
Defendant:  
VO 
  
C-572/21 -1 
MINUTES     […] 
[…] 
14/09/2021 
[…] 
PARTIES 
Applicant 
CC 
[…] 
Respondent 
VO 
EN 
REQUEST FOR A PRELIMINARY RULING OF 14.9.2021 – CASE C-572/21 
 
2  
[…] 
SUBJECT-MATTER 
Child custody and other issues 
DECISION UNDER APPEAL 
Decision of the Hovrätten över Skåne och Blekinges (Court of Appeal, Scania and 
Blekinge, Sweden) of 11 November 2020 […] 
The Högsta domstolen (Supreme Court, Sweden), which has provided the parties 
with the opportunity to express their views on the question as provisionally 
formulated, makes the following 
DECISION 
The Supreme Court decides to refer a request to the Court of Justice of the 
European Union for a preliminary ruling, in accordance with Annex A to these 
minutes. 
The Supreme Court orders the proceedings to be stayed pending the preliminary 
ruling from the Court of Justice of the European Union. 
[…] 
ANNEX A TO THE 
MINUTES 
[…] 
REQUEST FOR A PRELIMINARY RULING 
Background 
1 CC and VO have a son together, M, who was born in 2011. CC has had sole 
custody of M since his birth. M lived in Sweden until October 2019, when he 
began to attend a boarding school in Russia. 
2 On 13 December 2019 VO brought an action against CC. Among other things, he 
claimed that he should be awarded sole custody of M. In the alternative, VO 
requested that he and CC should have joint custody of M and that their son should 
be permanently resident with him. VO also sought interim measures to that effect. 
3 CC contested the claims. Principally, she claimed on her own behalf that she 
should continue to have sole custody of M and, in the alternative, that she and VO 
CC 
 
3 
should have joint custody of the son. CC also sought interim measures to that 
effect. 
4 In addition, CC claimed that the tingsrätten (District Court, Sweden) should 
dismiss VO’s action as inadmissible in so far as it concerned custody and 
residence. In support of the claim that the action was inadmissible, she argued that 
M was habitually resident in Russia and that the Swedish courts consequently 
lacked jurisdiction to rule on questions relating to parental responsibility over 
M. According to CC, M had acquired habitual residence in Russia in October 
2019. She claims that, even if he had not acquired habitual residence then, M had, 
subsequently acquired habitual residence there. 
5 VO contested the claim raised by CC that the action was inadmissible. He argued 
that M was still habitually resident in Sweden and that, in any event, he was 
habitually resident in Sweden when the action was brought. 
Examination of the question of jurisdiction by the District Court and the 
Court of Appeal 
6 The District Court first determined whether the examination of the court’s 
jurisdiction should be carried out in the light of the Brussels II Regulation 1 or the 
1996 Hague Convention. 2 
7 The District Court noted that Article 61 of the regulation provides that that 
regulation takes precedence over the Convention if the child’s habitual residence 
is in an EU Member State. According to that court, what counts when applying 
that provision is where the child had his or her habitual residence at the time the 
court was seised. 
8 On that basis, and since M was not considered as having acquired habitual 
residence in Russia at the time the court was seised, the District Court considered 
that the question of jurisdiction should be examined under the Brussels II 
Regulation and that Article 8(1) of that regulation conferred jurisdiction on the 
Swedish courts to examine the case. CC’s claim that the action was inadmissible 
was therefore dismissed. 
9 The Court of Appeal upheld the District Court’s decision that the Swedish courts 
have jurisdiction pursuant to Article 8(1) of the Brussels II Regulation. 
Examination by the District Court and Court of Appeal of the claims for 
interim relief 
 
1 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. 
2 The Convention of 19 October 1996 signed in the Hague on Jurisdiction, Applicable Law, 
Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures 
for the Protection of Children. 
REQUEST FOR A PRELIMINARY RULING OF 14.9.2021 – CASE C-572/21 
 
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10 As an interim measure, the District Court ordered that VO should have sole 
custody of M. The Appeal Court set that decision aside. CC therefore has sole 
custody of M. The case is pending before the District Court. 
The case before the Supreme Court 
11 CC claims that the Supreme Court should grant leave to appeal and dismiss VO’s 
action as regards custody and residence. CC argues that jurisdiction should be 
examined in the light of the Hague Convention, which means that the Swedish 
courts do not have jurisdiction to hear the case. She has stated that she brought an 
action before a Russian court which held on 20 November 2020 that it had 
jurisdiction over all questions concerning parental responsibility over M. 
12 CC has requested that the Supreme Court seek a preliminary ruling from the Court 
of Justice of the European Union regarding the interpretation of Article 61 of the 
Brussels II Regulation. 
13 VO has maintained his position on the question of habitual residence and has 
submitted that it is vital that the ongoing custody proceedings are completed 
quickly. 
14 The Supreme Court has not yet ruled on whether the appeal should be allowed to 
proceed in the case. 
Legal context 
The Brussels II Regulation 
15 Under Article 8(1) of the Brussels II Regulation, the courts of a Member State are 
to have jurisdiction in matters of parental responsibility over a child who is 
habitually resident in that Member State at the time the court is seised. Under 
Article 16, the court is normally deemed to be seised at the time when the 
document instituting the proceedings has been lodged with the court. 
16 The principle of perpetuatio fori applies when implementing Article 8(1). 
Consequently, where a court having jurisdiction has been seised, it retains 
jurisdiction, even if the child acquires his or her habitual residence in another 
Member State in the course of the court proceedings. […] 
17 The relation between the Brussels II Regulation and the Hague Convention is 
governed by Article 61 of the regulation. It provides that the regulation takes 
precedence over the Convention, inter alia, if the child concerned has his or her 
habitual residence on the territory of a Member State. 
The Hague Convention 
18 Under Article 5(1) of the Hague Convention, the judicial or administrative 
authorities of the Contracting State of the habitual residence of the child have 
CC 
 
5 
jurisdiction to take measures directed to the protection of the child’s person or 
property. The general rule laid down by Article 5(2) of the Convention is that 
where the child acquires a new habitual residence in another Contracting State, the 
authorities of the State of the new habitual residence have jurisdiction. 
19 Unlike the Brussels II Regulation, the perpetuatio fori principle is not applied 
when implementing the Hague Convention. If a child acquires a new habitual 
residence in a new Contracting State, the jurisdiction of the first Contracting State 
thus ceases. […] 
Need for a preliminary ruling 
20 Both the District Court and the Court of Appeal found that M had his habitual 
residence in Sweden at the time when the District Court was seised and that the 
Swedish courts therefore had jurisdiction to hear the case, in accordance with 
Article 8(1) of the Brussels II Regulation. M’s connection with Russia has 
strengthened since that time, and a Russian court has found that it has jurisdiction 
to hear an action brought before it. 
21 In those circumstances, the question of whether the principle of perpetuatio fori 
applies in the present case may be of some significance. The fact that that 
principle applies in relation to other Member States means that the jurisdiction of 
Swedish courts is not affected if a child acquires his or her habitual residence in 
another EU country in the course of the proceedings (see paragraph 16 [above]). 
The question is whether Article 8(1) of the Brussels II Regulation is to be applied 
in the same way where a child changes his or her habitual residence during the 
proceedings to a third country which is a party to the Hague Convention. 
22 The case also raises questions relating to the interpretation of Article 61 of the 
Brussels II Regulation. As already noted, that article lays down that the regulation 
takes precedence over the Hague Convention when the child has his or her 
habitual residence on the territory of a Member State. However, that article does 
not make clear the point in time to be used as the basis for determining where the 
child is habitually resident (see the foregoing considerations concerning the 
corresponding question for the purposes of applying Article 8(1)). It is likewise 
not apparent whether that article is limited in its application to relations between 
Member States or whether it has a wider scope (see Article 60 [of the Brussels II 
Regulation]). 
23 These issues have been examined by national courts in Member States. The 
French Cour de Cassation (Court of Cassation) has held that the French courts lost 
jurisdiction when the children concerned in the case changed their habitual 
residence from France to Switzerland during the proceedings (see judgment 
No 557 of 30 September 2020, 19-14.761, Cour de cassation, Première chambre 
civile (First Civil Chamber of the Court of Cassation), 
FR:CCASS:2020:C100557). Similar findings have been made by courts in 
Germany (see, for example, Oberlandesgericht Frankfurt am Main (Higher 
REQUEST FOR A PRELIMINARY RULING OF 14.9.2021 – CASE C-572/21 
 
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Regional Court, Frankfurt am Main, Germany) of 5 November 2019, 8 UF 
152/19, DE:OLGHE:2019:1105.8UF152.19.00; Saarländisches Oberlandesgericht 
(Higher Regional Court, Saarland, Germany) of 26 August 2015, 9 UF 59/15, 
DE:OLGSL:2015:0826: 9UF59.15.0A; Kammergericht Berlin (Higher Regional 
Court, Berlin, Germany) of 2 March 2015, 3 UF 156/14; and Oberlandesgericht 
Karlsruhe (Higher Regional Court, Karlsruhe, Germany) of 12 November 2013, 5 
UF 140/11). 
24 Varying views have been expressed in legal academic texts as regards how 
Article 8(1) and Article 61 should be interpreted in the current circumstances. 
Some writers maintain that the principle of perpetuatio fori applies even in the 
event of a change of habitual residence to a third country which is a party to the 
Hague Convention (see, for example, Blauwhoff, Richard and Frohn, Lisette in 
Lazic, Vesna (ed.), Regulation Brussels II bis Guide for Application, 2018, p. 86 
et seq.), and Kruger, Thalia and Samyn, Liselot, ‘Brussels II bis: successes and 
suggested improvements’, Journal of Private International Law, 2016, p. 153). 
Others argue that the Brussels II Regulation does not prevail over the Hague 
Convention if the child acquires his or her habitual residence in a third country 
which is a party to the Convention (see, for example, de Boer, T.M., ‘What we 
should not expect from a recast of the Brussels II bis Regulation’, Nederlands 
Internationaal Privaatrecht, 2015, p. 15 et seq., and Magnus, Ulrich and 
Mankowski, Peter (eds) ‘European Commentaries on Private International Law’, 
Vol. IV, Brussels II bis Regulation, 2017, Art. 61 note 2). 
25 In those circumstances, it cannot be considered that it is clear or established 
whether a court in a Member State retains jurisdiction in cases concerning parental 
responsibility if the child changes his or her habitual residence to a third country 
that is a party to the Hague Convention after a court in a Member State has been 
seised but before the case has been decided. 
Request for a preliminary ruling 
26 The Supreme Court asks the Court of Justice of the European Union to answer the 
following question by way of a preliminary ruling: 
Does the court of a Member State retain jurisdiction under Article 8(1) of 
the Brussels II Regulation if the child concerned by the case changes his or 
her habitual residence during the proceedings from a Member State to a third 
country which is a party to the 1996 Hague Convention (see Article 61 of 
the regulation)? 
Request for an expedited procedure 
27 These proceedings concern the custody and residence of a boy born in 2011. They 
began in December 2019. It is vital that the question of jurisdiction should be 
resolved as soon as possible. The Supreme Court therefore requests that the 
request for a preliminary ruling be dealt with under the expedited procedure 
(Article 105 of the Rules of Procedure).