Opinion of the Advocate General — ECLI:EU:C:2007:543
Date: 2007-09-20
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Finland

summary in its judgment in Lechouritou: (9) ‘It is to be remembered that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels Convention for the Contracting States and the persons to whom it applies are equal and uniform, the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. It is thus clear from the Court’s settled case-law that “civil and commercial matters” must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the Brussels Convention and, second, to the general principles which stem from the corpus of the national legal systems … (10) According to the Court, that interpretation results in the exclusion of certain legal actions and judicial decisions from the scope of the Brussels Convention, by reason either of the legal relationships between the parties to the action or of the subject-matter of the action … (11) Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public powers …’ (12) 36. The same need for a uniform interpretation exists in relation to Regulation No 2201/2003 as in relation to the Brussels Convention. In this case too it can be ensured only by an autonomous interpretation of the term ‘civil matter’. However, that is not to say that the term ‘civil matter’ has the same meaning in both these legal instruments. 37. However, this is what the Swedish Government assumes, in that it wanted to apply the distinction between civil matters and public-law matters made by the Court in the case-law cited above on the Brussels Convention to the term ‘civil matters’ for the purposes of Regulation No 2201/2003. Using that approach there was no civil matter in the present case, because the Social Welfare Board acted in the exercise of its public powers when ordering that the children be taken into care and placed, and obtaining ratification of the taking into care from the Länsrätt. 38. That cannot be accepted. In its judgments on the Brussels Convention, the Court has always emphasised that the autonomous interpretation of the term ‘civil and commercial matters’ takes into account the objectives and scheme of the Brussels Convention and the general principles which stem from the corpus of the national legal systems. (13) However, its objectives and scheme and – I would add – its history are not necessarily the same as the objectives, scheme and history of Regulation No 2201/2003. In the sphere of parental responsibility it is also possible that different general principles exist from those applicable in the national legal systems in relation to disputes within the scope of application of the Brussels Convention. Instead, the term ‘civil matters’ in Regulation No 2201/2003 must be interpreted independently within the legislative context of this Regulation. (b) The term ‘civil matters’ within the legislative context of Regulation No 2201/2003 39. Regulation No 2201/2003 does not define the term ‘civil matters’ expressly. However, from the wording of Article 1(1) one can infer first of all that classification as a civil matter does not depend on which branch of the court system has jurisdiction for the dispute. The only thing that matters is how the subject-matter of the proceedings is classified according to substantive law. (14) 40. Moreover, according to Article 1(1)(b) Regulation No 2201/2003 applies inter alia to restriction or termination of parental responsibility, and this is most usually effected by order of the authorities acting within the framework of their public supervisory role. In addition, the list in Article 1(2) defines specific measures and areas of regulation which are generally protective measures taken by the State as civil matters for the purposes of the regulation. For example, Article 1(2)(d) refers to the placement of the child in a foster family or in institutional care, and this is usually done at the instance of the State where the welfare of the child would be endangered if he remained with his own family. In addition, letter (e) refers to measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. 41. If one regarded these measures identified expressly in the list of civil matters as not being civil matters if arising between, on the one hand, private individuals (the parents) and, on the other, an authority exercising its public power, then the reference to those measures would largely lose its purpose. Accordingly, the distinction developed in the context of the Brussels Convention, according to whether the State is acting in exercise of its public or fiscal powers, cannot be applied to Regulation No 2201/2003. 42. The purpose of Regulation No 2201/2003, as expressed in its fifth recital, also supports including protective measures taken by the State within the regulation’s scope of application. It states that in order to ensure equality for all children the regulation should cover all decisions on parental responsibility, including measures for the protection of the child. It follows that the term ‘civil matters’ must be given a broad interpretation which avoids problems of definition in individual cases. Most of all this enables the court which has jurisdiction under the provisions of Regulation No 2201/2003 to be clearly identified. 43. In this connection, in the context of Regulation No 2201/2003 regard must be had to the close connection between the term ‘civil matters’ and the concept of parental responsibility which is central to the Regulation. In most legal systems the corresponding provisions regarding the legal relationship between parents and child form a central part of civil law. Every decision which affects parental responsibility, that is, which affects this civil-law relationship, (15) should fall within the regulation’s scope of application, provided none of the exceptions in Article 1(3) applies. (16) 44. In this regard it does not matter whether parental responsibility is affected by a protective measure taken by the State or by a decision which is taken on the initiative of the person who has (or the persons who have) rights of custody. As the term ‘civil matters’ is to be interpreted autonomously, it can include measures which, under the domestic law of a Member State, are regarded as falling within public law. (17) 45. As the French Government correctly emphasised, recital 10 in the preamble to the regulation confirms that the interpretation of the term ‘civil matters’ is not intended to exclude from the regulation’s scope of application protective measures taken by the State which affect parental custody. Instead, the choice of this term takes into account the fact that the regulation does not apply to some areas of public law and criminal law which are not directed at regulating parental responsibility, such as social security or measures in matters of education and health, decisions on the right of asylum and on immigration, and measures taken as a result of criminal offences committed by children. (18) 46. Consideration of the legislative history confirms this interpretation of the term ‘civil matters’. Regulation No 1347/2000, (19) the predecessor to Regulation No 2201/2003, concerned only civil proceedings relating to parental responsibility for the children of both spouses on the occasion of matrimonial proceedings (Article 1(1)(b) of Regulation No 1347/2000). The connection this required between the decision concerning parental responsibility and matrimonial proceedings meant that protective measures taken by the State were not within the scope of application of Regulation No 1347/2000. 47. Although the Commission wanted all decisions on parental responsibility to be covered, in its Proposal which led to Regulation 2201/2003 (20) it initially retained the previous wording. (21) Thus, the Proposal did not clearly indicate whether protective measures taken by the State were intended to be brought within the regulation’s scope of application. However, in its reasons for the Proposal the Commission explained that only certain protective measures in connection with the punishment of penal offences were to be left unaffected by the Regulation. (22) From this one could draw only the inverse conclusion that other protective measures taken by the State were intended to be covered. (23) This lack of clarity was deliberately eliminated in the discussions in the Council by the alteration of Article 1(1) and the insertion of the positive and negative lists in Article 1(2) and (3) and of Recital 10. 48. A further aspect of the regulation’s legislative history is the close substantive connection between Regulation No 2201/2003 and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (‘Child Protection Convention’). (24) 49. In defining its scope of application, the regulation, as presently in force, shows clear parallels with the Child Protection Convention. Thus, the scope of application of both measures is based on a broad interpretation of parental responsibility. In addition, it is manifest that in the course of the Council’s deliberations on the draft, the method of defining the scope of application of the regulation was brought closer to the Child Protection Convention, in that positive and negative lists were likewise inserted into Article 1(2) and (3) of the regulation, and these broadly correspond to the equivalent lists in Articles 3 and 4 of the Child Protection Convention. (25) There the Child Protection Convention expressly includes State measures in its scope of application: an example is placement (Article 3(e) of the Child Protection Convention) which, in his Explanatory Report to the Child Protection Convention, (26) Paul Lagarde even describes as a prototype of a measure of protection. In addition, measures taken as a result of penal offences committed by children are excluded from the Child Protection Convention (Article 4(i) of the Child Protection Convention). 50. Admittedly, as regards relations between the Member States, within its scope of application Regulation No 2201/2003 takes precedence over international conventions (see Articles 60 and 61 of the regulation). However, international instruments continue to apply between Member States and third countries. For that reason, the provisions of the regulation and corresponding provisions in other conventions ought, so far as possible, to be interpreted in the same way, in order to avoid different results according to whether a case concerns another Member State or a third country. (27) (c) Whether it is compatible with the legal basis of Regulation No 2201/2003 (Article 61 EC) for protective measures taken by the State to be included within the scope of application of the regulation 51. In conclusion, it may be mentioned that it is not incompatible with the legal basis of Regulation No 2201/2003 to include within its scope of application State protective measures which in some Member States are regarded as public law measures. 52. It is clear that the regulation’s legal basis, namely Article 61(c) EC, enables measures to be enacted in the field of judicial cooperation only in civil matters within the meaning of Article 65 EC. The third indent of Article 65(a) EC provides that measures in this area include improving and simplifying the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases. However, the term ‘civil matter’ within the meaning of the above provisions of the EC Treaty is to be given an autonomous Community law interpretation, like the same term in Regulation No 2201/2003. Accordingly, for the purposes of Article 61(c) and Article 65 EC ‘civil matters’ may equally include State measures which affect private law relationships such as the exercise of parental responsibility, even if corresponding measures are classified as measures of public law in some Member States. 3. Interim conclusion 53. The preceding observations on Questions 1(a) and (b) lead to the conclusion that a decision relating to the immediate taking into care of a child and his or her placement in a foster family outside the home is to be regarded as a civil matter concerning the exercise of parental responsibility to which Regulation No 2201/2003 is therefore applicable. This applies even if the decision in question is, under the domestic law of the State of origin or of the State addressed, subject to public law. It follows that it is unnecessary to answer Question 1(c), as it arises only if placement but not taking into care falls within the regulation’s scope of application. B – The second question 54. By its second question the Korkein Hallinto-oikeus seeks to have clarified whether the harmonised domestic rules of the Nordic countries, which permit direct enforcement and recognition of administrative decisions as a form of cooperation between administrative authorities, continue to be applicable to taking a child into care even where the relevant measures fall within the scope of application of Regulation No 2201/2003. 55. In this connection the national court refers to Article 59(2) of Regulation No 2201/2003. It provides that Finland and Sweden are to have the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, will apply, in whole or in part, in their mutual relations, in place of the rules of the regulation. It wishes to ascertain whether this provision may be applied by analogy to cooperation between the Nordic countries in relation to transfer for the enforcement of measures concerning the taking into care and treatment. 56. However, as the parties who have made submissions on this question unanimously emphasise, that would run counter to the principle of supremacy of Community law. (28) This principle obliges the authorities and courts of the Member States to disapply domestic law which conflicts with Community law. (29) 57. It would be otherwise only if the relevant provisions of Community law expressly permit derogations by the Member States. However, Article 59 of Regulation No 2201/2003 does not, however, contain any relevant enabling provision as regards national provisions in Finland and Sweden concerning transfer for enforcement of measures concerning the taking into care and treatment in the context of cooperation between Nordic countries. (30) 58. That Article 59(2)(a) of Regulation No 2201/2003 is an exception, and therefore to be interpreted narrowly, is itself enough to exclude its application by analogy. In addition, Article 59(2)(a) requires the Member States concerned to make a declaration on the application of derogating provisions, which is added to the Regulation as an annex and published in the Official Journal of the European Union. 59. Declaration No 28 on Nordic Cooperation, made on the accession of Austria, Finland and Sweden, likewise does not permit the application of provisions derogating from Regulation No 2201/2003. Specifically, in this Declaration the Contracting Parties expressly record that Sweden and Finland, as members of the European Union, intend to continue, in full compliance with Community law, Nordic Cooperation amongst themselves as well as with other countries and territories. 60. Provided Regulation No 2201/2003 is temporally and substantively applicable, Finland and Sweden must apply the regulation as regards the recognition and enforcement of decisions relating to parental responsibility and must disapply any domestic provisions which derogate from them. 61. This conclusion may appear regrettable as regards the obviously well‑developed administrative cooperation between Finland and Sweden which supports the welfare of children. However, in enacting Regulation No 2201/2003 the Member States have agreed certain uniform procedural standards, such as maintaining the exequatur requirement, which in turn protect the parties to the proceedings, as the Netherlands Government rightly emphasised. C – The third question 62. The third question concerns the temporal scope of application of Regulation No 2201/2003. According to the transitional provisions in Article 64(2) the regulation applies to recognition and enforcement of judgments subject to three conditions: – the judgment must have been given after the date of application of Regulation No 2201/2003, – the proceedings resulting in the judgment must have been instituted before the date of application of Regulation No 2201/2003 but after the date of entry into force of Regulation No 1347/2000, – the jurisdiction of the court which gave the decision must have been founded on rules which accorded with those provided for in the jurisdiction provisions of either Regulation No 2201/2003, Regulation No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. 63. Under Article 72(1), although Regulation No 2201/2003 entered into force on 1 August 2004 its provisions – subject to some exceptions not relevant in the present case – were applicable only from 1 March 2005 (Article 72(2)). It follows that the regulation began to apply on 1 March 2005. Regulation No 1347/2000 entered into force on 1 March 2001. 64. Thus, the first requirement is that the judgment was given on or after 1 March 2005. The national court regards the order of the Länsrätt confirming the decision by the Social Welfare Board of 23 February 2005 as the judgment which is to be enforced. The date of the order was 3 March 2005, and thus after the date of application of Regulation No 2201/2003. 65. In principle, one could also regard the order of the Social Welfare Board of 23 February 2005 itself as ‘the judgment’. Article 2(4) provides that for the purposes of the regulation, ‘judgment’ includes a decision relating to parental responsibility, whatever it may be called. In addition, it follows from Article 2(1) that the term ‘court’ includes all the authorities with jurisdiction in the proceedings falling within the scope of the regulation pursuant to Article 1. Accordingly, administrative decisions too may, in principle, be recognised and enforced in another Member State on the basis of the regulation. 66. However, the relevant decision must be enforceable in the State of origin before it may be enforced by a court of another Member State by way of cooperation (Article 28(1) of Regulation No 2201/2003). It must at least have external consequences in order that it may be regarded as a judgment which has been given, and this is to be determined by the lex fori. (31) Since, under Swedish law, the effect and enforceability of the decision apparently depended on its being confirmed by the Länsrätt, it seems correct to regard the date of confirmation by the court as determinative for the purposes of Article 64(2) of the regulation. In any event, it is a matter for the national court to determine which is the enforceable decision under national law. 67. As regards the second requirement (see above, point 62), the national court proceeds on the footing that the proceedings were instituted in autumn 2004 when the Social Welfare Board initiated the investigation. By contrast, the Commission submitted that the proceedings were instituted only by the Social Welfare Board’s application to the Länsrätt on 25 February 2005 for confirmation of its decision. 68. Article 16 of Regulation No 2201/2003 specifies only when a court is to be regarded as seised, that is to say – in short – at the time when the document instituting the proceedings is lodged with the court, or if the document has to be served before being lodged with the court, at the time when it is served on the respondent. By contrast, the provision does not directly cover the case in which an authority acts on its own authority and takes measures to protect children. However, if the date of the relevant decision is not that of the order of the Social Welfare Board of 23 February 2005 but that of its confirmation by the Länsrätt on 3 March 2005, that would suggest, as the Commission submits, that for the purposes of Article 64(2) the proceedings should be regarded as instituted only by the Social Welfare Board’s application to the Länsrätt. 69. Ultimately, however, the question need not be answered, because both the initiation of the investigation by the Social Welfare Board and the making of the application to the Länsrätt occurred before the date of application of Regulation No 2201/2003 and after the entry into force of Regulation No 1347/2000. 70. The third requirement is also satisfied. The provisions as to jurisdiction in force in Sweden at the time the proceedings were instituted correspond to those of Regulation No 2201/2003. The national provisions in force prior to the date of application of the regulation founded the jurisdiction of the authorities or, as the case might be, of the court on the permanent residence of the children in Sweden. Article 8(1) of Regulation No 2201/2003 contains a corresponding provision on jurisdiction. 71. Accordingly, the answer to be given to the third question is that Article 64(2) of Regulation No 2201/2003 is to be interpreted as meaning that a judgment relating to parental responsibility given on 3 March 2005 in proceedings which were instituted after 1 March 2001 and before 1 March 2005 is to be recognised and enforced in accordance with Chapter III of Regulation No 2201/2003 if the jurisdictional provisions in force when the proceedings were instituted founded the authority’s jurisdiction on the children’s permanent place of residence, in the same way as Article 8(1) of the Regulation. V – Conclusion 72. On the basis of the foregoing considerations, I propose that the Court should answer the questions referred by the Korkein Hallinto-oikeus as follows: (1) Article 1(1)(b) in conjunction with letters Article 2(a) and (d) of 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, is to be interpreted as meaning that a decision relating to the immediate taking into care of a child and his or her placement in a foster family outside the home is to be regarded as a civil matter concerning the exercise of parental responsibility to which Regulation No 2201/2003 is therefore applicable. This applies even if the decision in question is, under the domestic law of the State of origin or of the State addressed, subject to public law. (2) Provided Regulation No 2201/2003 is temporally and substantively applicable and does not expressly provide for any relevant exception, the Member States must not apply any domestic provisions which derogate from the regulation. (3) Article 64(2) of Regulation No 2201/2003 is to be interpreted as meaning that a judgment relating to parental responsibility given on 3 March 2005 in proceedings which were instituted after 1 March 2001 and before 1 March 2005 is to be recognised and enforced in accordance with Chapter III of Regulation No 2201/2003 if the jurisdictional provisions in force when the proceedings were instituted founded the authority’s jurisdiction on the children’s permanent place of residence, in the same way as Article 8(1) of the regulation. 1 – Original language: German. 2 – OJ 2003 L 338, p. 1 – also called the Brussels IIa Regulation. 3 – Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, Final Act – III. Other Declarations – E. Joint Declarations: The present Member States/Various new Member States – 28. Joint Declaration on Nordic Cooperation (OJ 1994 C 241, p. 392). 4 – OJ 2005 C 40, p. 2. 5 – See the Practice Guide for the application of the new Brussels II Regulation, drawn up by the Commission services in consultation with the European Judicial Network in civil and commercial matters (updated on 1 June 2005), p. 9. Available at http://ec.europa.eu/justice_home/doc_centre/civil/doc/parental_resp_ec_vdm_en.pdf. 6 – I.C.J. Reports 1958, p. 55. 7 – Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended version – p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1) (‘the Brussels Convention’). 8 – Case 29/76 LTU v Eurocontrol [1976] ECR 1541. 9 – Case C‑292/05 Lechouritou [2007] ECR I-1519, paragraphs 29 to 31. 10 – The Court referred to Case 29/76 LTU (cited above, footnote 8), paragraphs 3 and 5; Case 814/79 Netherlands v Rüffer [1980] ECR 3807, paragraph 7; Case C‑271/00 Baten [2002] ECR I-10489, paragraph 28; Case C‑266/01 Préservatrice foncière TIARD [2003] ECR I‑4867, paragraph 20; and Case C‑343/04 ČEZ [2006] ECR I‑4557, paragraph 22. 11 – The Court referred to LTU (cited above, footnote 8), paragraph 4; Rüffer (cited above, footnote 10), paragraph 14; Baten (cited above, footnote 10), paragraph 29; Préservatrice foncière TIARD (cited above, footnote 10), paragraph 21; ČEZ (cited above, footnote 10), paragraph 22; and Case C‑167/00 Henkel [2002] ECR I‑8111, paragraph 29. 12 – The Court referred to LTU (cited above, footnote 8), paragraph 4; Rüffer (cited above, footnote 10), paragraph 8; Henkel (cited above, footnote 11), paragraph 26; Baten (cited above, footnote 10), paragraph 30; Préservatrice foncière TIARD (cited above, footnote 10), paragraph 22; and Case C‑172/91 Sonntag [1993] ECR I‑1963, paragraph 20. 13 – See the case-law cited above, footnote 10. 14 – See M. Busch and U. Rölke, ‘Europäisches Kinderschutzrecht mit offenen Fragen – Die neue EU-Verordnung Brüssel IIa zur elterlichen Verantwortung aus der Sicht der Jugendhilfe’, Zeitschrift für das gesamte Familienrecht (FamRZ) 2004, 1338, at p. 1340. 15 – On this point C refers to the parallels in the case-law of the European Court of Human Rights on Article 6(1) of the European Convention on Human Rights. The right to a fair trial applies inter alia to disputes relating to claims under civil law (‘civil’ rights). According to the European Court of Human Rights, disputes concerning State measures which concern parental responsibility also fall within the scope of application of Article 6(1), because they affect a legal relationship characterised by civil law. See inter alia judgment of the ECHR of 8 July 1987 in W. v United Kingdom, Application No. 9749/82, paragraph 78. For a review of the case-law of the European Court of Human Rights on the concept of civil rights, see Grabenwarter and Pabel in Grote and Marauhn (eds), EMRK/GG, 2006, chapter 14, paragraphs 13 to 15. 16 – To this effect, see V. Kress, Internationale Zuständigkeit für elterliche Verantwortung in der Europäischen Union, 2005, p. 49. 17 – Those involved in applying the law were expressly referred to this in the Practice Guide for the application of the new Brussels II Regulation (cited above, footnote 5), page 10. 18 – Article 1(3)(g) of Regulation No 2201/2003. 19 – Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ 2000 L 160, p. 19. 20 – COM (2002) 222 final/2 of 17 May 2002 (OJ 2002 C 203E, p. 155). 21 – Article 1 of the draft provided: ‘1. This Regulation shall apply to civil proceedings relating to: … (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. Notwithstanding paragraph 1 this Regulation shall not apply to civil proceedings relating to … (b) measures taken as a result of penal offences committed by children. 3. Other proceedings officially recognised in a Member State shall be regarded as equivalent to judicial proceedings.’ 22 – COM (2002) 222 final/2, p. 6. 23 – See Kress (cited above, footnote 16), p. 44 f. 24 – Hague Conference on private international law, Actes et documents de la XVIIIième session, 1998, p. 14. Also available in English from the homepage of the Hague Conference: http://hcch.net/upload/text34d.pdf. By Council Decision of 19 December 2002 (OJ 2003 L 48, p. 1) the Member States were authorised to sign the Convention in the interests of the European Union, and have all done so. However, only eight Member States have ratified it. It appears that ratification is still blocked by the Gibraltar question (see J. Pirrung, ‘Brüche zwischen internationaler und europäischer Rechtsvereinheitlichung – das Beispiel des internationalen Kindschaftsrechts in der Brüssel IIa-Verordnung’, in Internationales Familienrecht für das 21. Jahrhundert, Symposion zum 65 Geburtstag von Ulrich Spellenberg, 2006, p. 89, at p. 91). The Child Protection Convention entered into force on 1 January 2002. 25 – On this point see J. Pirrung, ‘Internationale Zuständigkeit in Sorgerechtssachen nach der Verordnung (EG) Nr. 2201/2003’, in Festschrift für P. Schlosser, 2005, p. 695, at pp. 696 f., and J. Pirrung in Internationales Familienrecht für das 21. Jahrhundert (cited above, footnote 22), p. 93. 26 – Available in English at http://hcch.net/upload/expl34.pdf; paragraph 23 of the version cited (on Article 3(e)). 27 – See J. Pirrung in: Internationales Familienrecht für das 21. Jahrhundert (cited above, footnote 24), p. 100. 28 – Case 6/64 Costa v ENEL [1964] ECR 585, at p. 593 et seq. 29 – Case 106/77 Simmenthal [1978] ECR 629, at paragraphs 21 to 23. 30 – To this extent, the situation is different from that under the Child Protection Convention, Article 52 of which expressly permits the retention or enactment of uniform laws of a regional nature. 31 – See Rauscher and Rauscher, Europäisches Zivilprozessrecht (2nd ed.), Munich, 2006, Article 64 of Brussels IIa Regulation, paragraph 9; M. Fleige, Die Zuständigkeit für Sorgerechtsentscheidungen und die Rückführung von Kindern nach Entführungen nach dem Europäischen IZVR, Würzburg, 2006, p. 114.