View of the Advocate General — ECLI:EU:C:2010:578
Date: 2010-10-04
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in relation to rights of custody – Lis pendens (Council Regulation No 2201/2003, Arts 19(2) and 20) 2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in relation to rights of custody – Lis pendens (Council Regulation No 2201/2003, Art. 19(2)) 3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in relation to rights of custody – Lis pendens (Council Regulation No 2201/2003, Art. 19(2)) 1. The provisions of Article 19(2) 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 (EC) No 1347/2000, are not applicable where a court of a Member State first seised for the purpose of obtaining measures in matters of parental responsibility is seised only for the purpose of its granting provisional measures within the meaning of Article 20 of that regulation and where a court of another Member State which has jurisdiction as to the substance of the matter within the meaning of the same regulation is seised second of an action directed at obtaining the same measures, whether on a provisional basis or as final measures. Article 20 of Regulation No 2201/2003 cannot be regarded as a provision which determines substantive jurisdiction. Further, the application of that provision does not prevent the court which has jurisdiction as to the substance of the matter being seised. Article 20(2) of that regulation ensures that there is no possibility that the decisions made in a judgment granting provisional measures within the meaning of Article 20 and a judgment handed down by the court which has jurisdiction as to the substance of the matter can contradict each other, since it provides that provisional measures within the meaning of Article 20(1) thereof are to cease to apply when the court which has jurisdiction as to the substance of the matter has taken the measures it considers appropriate. (see paras 70-71, 86, operative part) 2. The fact that a court of a Member State is seised in the context of proceedings to obtain interim relief, in relation in particular to rights of custody in respect of children, or that a judgment is handed down in the context of such proceedings and there is nothing in the action brought or the judgment handed down which indicates that the court seised for the interim measures has jurisdiction within the meaning 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 (EC) No 1347/2000, does not necessarily preclude the possibility that, as may be provided for by the national law of that Member State, there may be an action as to the substance of the matter which is linked to the action to obtain interim measures and in which there is evidence to demonstrate that the court seised has jurisdiction within the meaning of that regulation. In such a context, it falls to the court second seised to ascertain whether the judgment of the court first seised, in that it grants provisional measures, was only a preliminary step towards a subsequent judgment delivered by that court when better informed of the case and in circumstances where the need to make an urgent decision no longer arises. The court second seised should moreover ascertain whether the claim relating to provisional measures and the claim brought subsequently relating to matters of substance constitute a procedural unit. (see paras 80, 86, operative part) 3. Where, notwithstanding efforts made by the court second seised to obtain information by enquiry of the party claiming lis pendens, the court first seised and the central authority, the court second seised lacks any evidence which enables it to determine the cause of action of proceedings brought before another court and which serves, in particular, to demonstrate the jurisdiction of that court in accordance with Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, and where, because of specific circumstances, the interest of the child requires the handing down of a judgment which may be recognised in Member States other than that of the court second seised, it is the duty of that court, after the expiry of a reasonable period in which answers to the enquiries made are awaited, to proceed with consideration of the action brought before it. The duration of that reasonable period must take into account the best interests of the child in the specific circumstances of the proceedings concerned. In that context, it must be recalled that an objective of Regulation No 2201/2003 is to ensure, in the best interests of the child, that the court which is nearest the child and which, accordingly, is best informed of the child’s situation and state of development, takes the necessary decisions. (see paras 82-84, 86, operative part)