View of the Advocate General — ECLI:EU:C:2010:344
Date: 2010-06-16
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: Austria

Summary of the Judgment 1. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 (Council Regulation No 2201/2003, Art. 10(b)(iv)) 2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 (Council Regulation No 2201/2003, Arts 11(8), 40 and 42) 3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 (Council Regulation No 2201/2003, Recital 24 and Arts 11(8), 42(1), 43(2), second subparagraph of 47(2), and 60) 4. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 (Council Regulation No 2201/2003, Art. 42(1)) 1. Article 10(b)(iv) 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 meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed. In the light of the central role allocated by that regulation to the court which has jurisdiction and the principle that its jurisdiction should be retained, a ‘judgment on custody that does not entail the return of the child’ is a final judgment, adopted on the basis of full consideration of all the relevant factors, in which the court with jurisdiction rules on arrangements for the custody of a child who is no longer subject to other administrative or judicial decisions. The fact that this ruling on the question of custody of the child provides for a review or reconsideration at regular intervals, within a specific period or in certain circumstances, of that question does not mean that the judgment is not final. That conclusion follows from the structure of Regulation No 2201/2003 and is also in the interests of the child. If the effect of a provisional measure were a loss of jurisdiction over the issue of custody of the child, the court which has jurisdiction in the Member State where the child was previously habitually resident might be deterred from making such a provisional judgment, notwithstanding the fact that the interests of the child required it. (see paras 46-47, operative part 1) 2. Article 11(8) 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 meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child. In that regard, an interpretation which makes the enforcement of a judgment of the court with jurisdiction ordering the return of the child dependent on whether a final judgment on rights of custody has been delivered by that court has no basis in the wording of Article 11 of the regulation and, specifically, of Article 11(8), which, on the contrary, extends to ‘any subsequent judgment which requires the return of the child’. Likewise, Articles 40 and 42 to 47 of the regulation in no way tie the enforcement of a judgment made under Article 11(8) and accompanied by the certificate referred to in Article 42(1) of the regulation to the prior adoption of a judgment on custody. Further, the objective of the provisions of Articles 11(8), 40 and 42 of the regulation, namely, that proceedings be expeditious, and the priority given to the jurisdiction of the court of origin are scarcely compatible with an interpretation according to which a judgment ordering return must be preceded by a final judgment on rights of custody. Such an interpretation would constitute a constraint which might compel the court with jurisdiction to take a decision on rights of custody when it had neither all the information and all the material needed for that purpose nor the time required to make an objective and dispassionate assessment. The importance of delivering a court judgment on the final custody of the child that is fair and soundly based, the need to deter child abduction, and the child’s right to maintain on a regular basis a personal relationship and direct contact with both parents, take precedence over any disadvantages which might be caused by the need to move in order to comply with a judgment adopted on the basis of Article 11(8) and thereafter a final judgment on rights of custody. (see paras 52, 54, 62-63, operative part 2) 3. The second subparagraph of Article 47(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 No 1347/2000, must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional custody rights and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child. To proceed otherwise would amount to circumventing the system set up by Section 4 of Chapter III of the regulation. Such an exception to the jurisdiction of the courts in the Member State of origin would deprive of practical effect Article 11(8) of the regulation, which ultimately grants the right to decide to the court with jurisdiction and which takes precedence, under Article 60 of the regulation, over the 1980 Hague Convention, and would recognise the jurisdiction, on matters of substance, of the courts in the Member State of enforcement. Further, as is clear from Recital 24 and Articles 42(1) and 43(2) of the regulation, the issue of a certificate is not subject to appeal, and a judgment thus certified is automatically enforceable, there being no possibility of opposing its recognition. The question whether a certified judgment is irreconcilable, within the meaning of the second subparagraph of Article 47(2) of the regulation, with a subsequent enforceable judgment must be addressed only in relation to any judgments subsequently handed down by the courts with jurisdiction in the Member State of origin. Such irreconcilability might arise not only in cases where the judgment was set aside or varied following legal action brought in the Member State of origin, but also in cases where the court with jurisdiction revisits its own position, when the interests of the child so require, and hands down a fresh enforceable judgment, without expressly withdrawing the first, which would thereby lapse. (see paras 70, 76-78, operative part 3) 4. Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change of circumstances constitutes an issue of substance, which may, in appropriate cases, cause the decision of the court which has jurisdiction over the return of the child to change. However, in accordance with the division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement, such an issue must be resolved by the court with jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment. (see paras 81, 83, operative part 4)