Opinion of the Advocate General — ECLI:EU:C:2010:296
Date: 2010-05-20
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 procedure which may lack some or many of the normal safeguards. It may not be possible to hear all the interested parties or to consider all the relevant evidence. Some decisions may even be taken by telephone, giving rise simply to a handwritten note in the file. (46) 123. With those considerations in mind, I turn to address the two hypotheses set out above. First hypothesis: substantive jurisdiction Firm decision 124. The terms and scheme of the Regulation are quite clear: a judgment given in a Member State must be recognised in the other Member States without any special procedure being required, and a judgment given in a Member State which is enforceable there and has been served must be enforced in another Member State when it has been declared enforceable there in accordance with the procedures set out in the Regulation. Specific and limited grounds for non-recognition and for refusal of an application for a declaration of enforceability are set out in Article 23, read in conjunction with Article 31(2) – to which must presumably be added a lack of enforceability in the Member State of origin and a failure to serve on the defendant, as seems clear from Article 28(1). Where none of those grounds applies, there is simply no scope for refusing recognition or enforcement. In the present case, the only such ground which has been alleged (by the mother, before the Amtsgericht Stuttgart) is that the validity of the contested order had lapsed in Spain by the time the father brought proceedings for a declaration of enforceability in Germany – a point which I shall address below, at point 148 et seq. 125. In addition, it is quite clear that the courts of the Member State of recognition or enforcement may not review either the jurisdiction of the court of origin or the substance of its decision. 126. The prohibition of review of jurisdiction is also inherent in Article 19 of the Regulation, in relation to lis pendens. Where proceedings relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised must of its own motion stay its proceedings until the jurisdiction of the court first seised is established, at which point it must decline jurisdiction in favour of that court. And, according to the case-law on the substantially equivalent provision in Article 21 of the Brussels Convention, it is for the court first seised to decide whether its jurisdiction is established. (47) (I agree that the case-law on the Brussels Convention or its successor, Regulation No 44/2001, cannot be applied automatically and indiscriminately to the present Regulation (48) but, in this particular regard, there seems no reason not to transpose it.) 127. What, then, can be done if, as in the present case, a party challenges the jurisdiction of the court which took the decision whose recognition or enforcement is sought? The obvious answer is to do so before that court itself. If the contested order had been a firm decision on parental responsibility, the Regulation would clearly not have allowed the mother to obtain a refusal to recognise or enforce it in Germany or to bring subsequent proceedings there seeking a new firm decision on the ground that the German, not the Spanish, courts had jurisdiction. Therefore, her only recourse would have been to appeal, within the Spanish system, against the Spanish court’s assumption of jurisdiction, (49) with the prospect – at the latest in the court of final instance – of a request for a preliminary ruling by this Court. 128. Such a course of action could prove lengthy (50) (although one would hope that the proceedings would be expedited to the extent possible and, of course, in cases of doubt even the first instance court may now refer a question to this Court and request an urgent procedure), but it is the only course of action available under the Regulation. This again underlines the high degree of responsibility placed on national courts when they assume jurisdiction, and the need for them to give explicit, full and clear reasons for doing so. Only such conscientiousness can foster a true climate of mutual trust as required by the Regulation, and only such reasons can enable an appeal court, a court of enforcement in another Member State or the Court of Justice, as the case may be, to determine any disputed aspects as swiftly as possible. Provisional decision 129. What difference, if any, does it make if the decision (taken by a court considering itself to have jurisdiction as to the substance) is clearly a provisional one? That may be a plausible analysis of the situation in the present case. 130. First of all, as has been pointed out in a number of the written observations, the Regulation makes no explicit distinction between final or firm decisions on the one hand and provisional decisions on the other. Article 2(4) defines the term ‘judgment’ broadly, without regard to the formal terminology used, and contains no suggestion that any category is to be excluded; the provisions of Chapter II on jurisdiction (51) do not distinguish between proceedings according to whether the judgment, thus broadly defined, is to be provisional or not; the provisions of Chapter III on recognition and enforcement refer to recognition and enforcement of judgments, again without distinction; and, within that chapter, Article 23(b) contemplates that a ‘judgment’ may be given in cases of urgency, implying that it may be provisional. 131. Nor do I see any pressing reason, connected with the nature of provisional measures, to draw a distinction. A court having substantive jurisdiction is a court of the Member State with which the child has, in principle, the closest link (at the very least, a substantial connection). It is also the court which will take the substantive decision as to parental responsibility, a decision which must, under the Regulation, be recognised and enforced in all other Member States. It must necessarily have jurisdiction also to take whatever provisional measures are necessary until such time as a firm decision can be reached. (52) And such provisional measures will be closely bound up with the subsequent firm decision. The court will decide on those measures in the light, inter alia, of its own duty to reach such a firm decision as swiftly as is compatible with thorough consideration of the merits, and will seek to ensure, as far as possible, that the provisional measures do not compromise or predetermine that decision. 132. Seen in that light, it seems to me that provisional measures taken by a court having substantive jurisdiction under the Regulation must be recognised and enforced in other Member States under the same conditions as the subsequent judgment which the same court will be called upon to deliver. Any other approach would carry the risk of prejudicing that subsequent judgment by undermining any efforts made to ensure continuity – and would render the Regulation largely ineffective with regard to a wide range of decisions taken daily by family courts throughout the European Union. 133. It might be argued, none the less, that the often summary nature of proceedings leading to the adoption of a provisional measure, perhaps lacking some of the procedural safeguards which normally ensure a fair hearing, militates against automatic recognition and enforcement. 134. To that, however, it may be answered that Article 23 of the Regulation specifies the circumstances in which recognition and enforcement may be refused, and that such summary proceedings were clearly in the legislator’s mind: refusal may be granted, inter alia, if the child was not given an opportunity to be heard (except in cases of urgency); or if the judgment was given in default when the person in default was not given adequate notice to prepare his or her defence; or if it infringes the parental responsibility of a person who was not given an opportunity to be heard. (53) 135. It seems, therefore, that the Regulation makes no general exclusion from the normal regime of recognition and enforcement simply because proceedings are such that some of the ordinary safeguards may be absent. There is exclusion only when certain specific safeguards are actually denied. It is not suggested in the present case that any such safeguard was denied; the children were too young to be heard, and the mother was given ample opportunity, of which she made use, to present her case. 136. Another possible argument for treating provisional measures more cautiously is that the provisional decision will perhaps not be subject to appeal, so that the party wishing to challenge jurisdiction might have no possibility of doing so in either the Member State of origin or the Member State of enforcement. 137. Whether such a situation prevails in the present case is not clear from the documents in the case. (54) Nor, in my view, has it been made entirely clear by the Spanish Government’s answers to the Court’s questions, whether written or oral. It is, in any event, at least suggested that some kind of appeal could have been available against the Spanish court’s assumption of jurisdiction to make the contested order, and it seems that the mother was at least able to challenge that jurisdiction in the context of the subsequent main proceedings. However, whatever the truth of the matter in the present context, if, in any particular case, no appeal lies against the court’s assumption of jurisdiction, then, in the event of a challenge before it, that court is one of those obliged, under the third paragraph of Article 267 TFEU (Article 234 EC), to seek a preliminary ruling from the Court of Justice – and its request would, one hopes, be dealt with by an urgent procedure. 138. In her written observations to the Court, the mother has suggested another ground for not recognising or enforcing provisional decisions (of a court assuming substantive jurisdiction) in the same way as firm decisions. Having first argued that measures taken in the circumstances set out in Article 20 should not be recognised or enforced in other Member States (a point which I shall address below (55)), she reasons that the same approach must be taken when the court is not acting in such circumstances but assumes substantive jurisdiction and takes provisional measures within the ambit of that jurisdiction. Taking a different approach would require the court of the Member State of enforcement to determine whether the court of origin had based its jurisdiction on Articles 8 to 14 or on Article 20 – whereas review of the jurisdiction of the court of origin is expressly prohibited by Article 24 of the Regulation. 139. That analysis is, I think, misconceived, regardless of whether a distinction should be drawn between the two categories of provisional measure. In order to determine whether a provisional measure was taken on the basis of substantive jurisdiction derived from the rules in the Regulation or in the circumstances set out in Article 20, it is not necessary to review the jurisdiction of the court of origin but merely to ascertain the basis on which it considered itself competent. 140. Admittedly, it may not always be easy to ascertain that basis. In the present case, the contested order is not as fully or as clearly reasoned as would be desirable – although it appears that the Spanish court did consider the matter from several angles and did satisfy itself as to its competence, referring to several possible grounds of substantive jurisdiction but not to Article 20. In other cases, the reasoning may be far more laconic, even completely absent, thereby totally failing to observe the duties which fall on national courts as a corollary to the principle of mutual trust which pervades the Regulation. 141. The Commission and the German Government in particular suggest that, if the basis on which jurisdiction is assumed cannot be clearly ascertained from the terms or content of the decision whose recognition or enforcement is sought, then, by analogy with Mietz, (56) it should be presumed to be based on Article 20. At the hearing, the Czech Government appeared to advocate precisely the opposite approach. 142. In Mietz, the Court stressed (in the context of the Brussels Convention) that in ordering interim payment the court of origin had not expressly referred to its substantive jurisdiction under the Convention, and that no such jurisdiction was evident from the terms of its judgment (as would have been the case if, for example, the judgment had shown that the defendant was domiciled in the Contracting State of the court of origin and none of the types of exclusive jurisdiction set out in the Convention was applicable). Consequently, the Court considered, where the court of origin is silent as to the basis of its jurisdiction, the need to ensure that the Convention rules are not circumvented requires that its judgment be construed as meaning that it founded its jurisdiction to order provisional measures on its national law and not on any substantive jurisdiction derived from the Convention. 143. As I have noted, not all aspects of the case-law on the Brussels Convention and Regulation No 44/2001 are suitable for unqualified transposition to the context of the present Regulation. This aspect, it seems to me, calls for qualification – though I can see no reason for the complete reversal proposed by the Czech Government. 144. The present Regulation – unlike the Brussels Convention and Regulation No 44/2001 – specifically contemplates communication between courts, facilitated where necessary by the central authorities of the relevant Member States. It is in conformity with the spirit of mutual cooperation which underpins the Regulation for such communication to extend to all matters which can facilitate or expedite proceedings concerned with the recognition or enforcement of judgments. Since all that is required here is to ascertain the basis on which the court of origin considered itself competent, the communication should not be too arduous. 145. I would therefore nuance the approach taken by the Court in the context of the Brussels Convention. The heightened cooperation and the specific provision for communication between courts in the Regulation – the duty to make use of which is apparent from the case-law (57) – require a court of enforcement, in doubt as to the basis of jurisdiction assumed by the court of origin, to seek to ascertain that basis from the court concerned. Only if that endeavour fails to produce a reasonably prompt result should it be presumed that jurisdiction was assumed in the circumstances set out in Article 20(1). 146. In the present case, it seems to me that, even if the contested order is not as explicit as could have been wished, a very natural conclusion to draw from it is that the Spanish court considered itself to have substantive jurisdiction and placed no reliance on Article 20. (58) 147. It may be added that no reliance could properly have been placed on Article 20 in the circumstances of the case, since M was not present in Spain at any stage during the course of the proceedings before the Spanish court. (It might appear, from paragraphs 50 to 52 of the judgment in Detiček, (59) that, for a provisional measure concerning parental responsibility to be taken in the circumstances set out in Article 20, not only the child but also the persons previously and/or newly exercising that responsibility must be present in the Member State concerned. However, I agree with the view expressed at the hearing by a number of those present that such an approach would be incorrect, and that it is the presence of the child alone which determines whether urgent provisional measures may be taken with respect to him or her.) As for S, the fact that she has never left Spanish territory since birth means that the substantive jurisdiction of the Spanish courts under Article 8 is incontestable, and that there is (at present) no issue of recognition or enforcement in another Member State. 148. Finally, the mother has alleged before the Amtsgericht Stuttgart that, despite the certificate issued by the Spanish court pursuant to Article 39 of the Regulation, the contested order is unenforceable in Spain because provisional measures of the kind concerned lapse unless substantive proceedings are commenced within 30 working days and, in the present case, the father did not commence such proceedings within that period. (60) 149. Whether that allegation is or is not well founded in fact and in Spanish procedural law is not a matter which can be determined by this Court. However, an issue relating to the Regulation may arise if a party seeks a declaration of enforceability in another Member State of a measure which has ceased to be enforceable in the Member State of origin but in respect of which a certificate has been issued. 150. According to Article 28(1) of the Regulation, in order to be enforced in another Member State, a judgment on the exercise of parental responsibility must be enforceable in the Member State of origin. In accordance with Articles 37(1)(b) and 39, the application for a declaration of enforceability must be accompanied by a certificate in the form set out in Annex II, issued by the competent court of the Member State of origin. At point 9.1 of that certificate, the court in question is required to state whether the judgment is enforceable according to the law of that State. The question therefore arises whether it is open to the court of the Member State of enforcement to look beyond that certificate, once issued, in order to ascertain whether the judgment is (still) enforceable. 151. It seems to me that such a possibility is open to the court to which application is made for a declaration of enforceability. Although Article 31(2) states that the application may be refused only for one of the reasons specified in Article 23, it seems logically necessary that refusal must also be possible if the judgment is not enforceable in the Member State of origin, since such enforceability is a condition explicitly laid down in Article 28(1). Production of the Annex II certificate is however not an absolute requirement for fulfilment of that condition, as Article 38(1) allows the court of the Member State of enforcement to accept equivalent documents or other information. Moreover, nothing in Sections 2 and 3 of Chapter III, which govern proceedings for a declaration of enforceability of judgments relating to parental responsibility, states that the Annex II certificate is binding or unchallengeable. 152. That is in clear contrast to the provisions of Section 4, governing enforceability of certain judgments concerning rights of access or requiring the return of the child. That section provides for certificates using the forms in Annexes III and IV respectively, and for recognition and enforcement ‘without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin’. (61) It also stipulates that no appeal may lie against the issuing of a certificate (62) but, by making no allowance for accepting other equivalent documents or information, in fact makes the production of a certificate an absolute prerequisite for enforcement. 153. It seems to me, therefore, that the legislature’s intention was to distinguish between, on the one hand, judgments on the exercise of parental responsibility and, on the other hand, those concerning rights of access or requiring the return of the child. (63) For the latter, the certificate as to, inter alia, enforceability in the Member State of origin is crucial; it is both necessary and binding. For the former, the certificate is important, but neither an absolute necessity nor immune to challenge. 154. Where a measure is not enforceable indefinitely in the Member State of origin, but will or may lapse after a period of time, or through the occurrence or non-occurrence of a particular event, it is, of course, not merely desirable but inherent in the system of mutual trust which pervades the Regulation that the limitation should be indicated by the court of origin in its certificate. When there is no such indication, it remains open to any interested party to adduce evidence that the measure is no longer enforceable. In that event, the same means of communication between courts and central authorities are available as when it is necessary to ascertain the basis of jurisdiction. When such means provide a satisfactory response, the court of enforcement should obviously look no further but, in the absence of such a response, it should not preclude the parties from adducing timely proof by other means. 155. I thus arrive at the view that provisional measures adopted by a court of a Member State on the basis of competence derived by that court from the rules on substantive jurisdiction in the Regulation must be recognised and enforced in other Member States in the same way as any other judgment adopted on the same basis, in accordance with Article 21 et seq. of the Regulation. A court hearing an application for recognition or non-recognition of such a measure, or for a declaration of enforceability, is entitled to ascertain the basis of jurisdiction relied on by the court of origin either from the terms or content of its decision or, if necessary, by communicating with that court directly or through the appropriate central authorities. If, but only if, such communication fails to produce a reasonably prompt result, it should be presumed that jurisdiction was assumed in the circumstances set out in Article 20(1). In the case of (provisional) decisions on parental responsibility, the same means of communication may be used to verify whether the decision is (still) enforceable in the Member State of origin, if the accuracy of a certificate issued pursuant to Article 39 is challenged. Second hypothesis: measure permitted by Article 20 156. Does the same conclusion, as regards recognition and enforcement, apply where the provisional measures in question are not adopted on the basis of substantive jurisdiction under the Regulation but on the basis of national law in the limited circumstances permitted by Article 20? 157. An obvious initial observation is that the very wording of Article 20 circumscribes the nature of the measures covered (‘in respect of persons or assets in that State’) in such a way that issues of recognition or enforcement in another State may not often arise. In addition, the fact that such measures lapse as soon as the court having substantive jurisdiction takes action means that any recognition or enforcement may well be of only ephemeral value to the party seeking it. (64) However, the fact that such situations are perhaps much less likely to arise in the circumstances set out in Article 20 than in the case of provisional measures taken by a court having substantive jurisdiction does not mean that they can never arise, particularly in circumstances where an incident occurs during a child’s lawful temporary presence in a third Member State. 158. Of those who have submitted written observations, only the Spanish and Italian Governments consider that measures taken in the circumstances set out in Article 20 should be recognised and enforced in other Member States. Both point to the extremely broad definition in Article 2(4) of the Regulation of ‘judgment’, (65) which is the term used in all the provisions on recognition and enforcement and which, they consider, must cover any enforceable decision of any court, regardless of the basis on which it was adopted. The Italian Government stresses the importance of the right to be heard, which it regards as the only essential criterion for a decision to be enforceable in other Member States. The Spanish Government considers that the useful effect of the Regulation would be undermined if measures taken in the circumstances set out in Article 20 were excluded from the provisions on recognition and enforcement. (66) 159. The Commission, although expressing in its written observations the view that Article 20 was not relevant in the context of the main proceedings, developed a rather original approach at the hearing. It suggested that the provisions of Article 21 et seq. of the Regulation were indeed applicable to measures taken in the circumstances set out in Article 20(1), but only if each of those circumstances – presence of the person or property in question, urgency, and provisional nature of the measure – could be rigorously verified, and the right to be heard had been guaranteed. In particular, it argued that the provisional nature of the measure should be explicit in the decision taken and the term of validity indicated. 160. While that might well be a desirable approach, it seems to me to have no basis in the Regulation itself. In particular, it would appear to involve applying Article 21 et seq. whilst modifying the application of Article 24, which prohibits any review of jurisdiction. I therefore do not consider that such an approach is justified by the legislation as it currently stands. 161. The other parties who have submitted written observations put forward a number of often overlapping arguments, all tending towards the view that the rules on recognition and enforcement in Article 21 et seq. do not apply to provisional measures adopted on the sole basis of Article 20. 162. First, the Portuguese and United Kingdom Governments suggest that, because Article 20 refers to provisional ‘measures’ rather than ‘judgments’, it was specifically intended to exclude such measures from the ‘judgments’ referred to in the rest of the Regulation, in particular in the provisions relating to recognition and enforcement. I do not find that a convincing argument, particularly in view of the words ‘whatever the judgment may be called, including a decree, order or decision’ in Article 2(4), read in conjunction with the very broad definition of a ‘court’ in Article 2(1). In that context, if the legislature had intended to distinguish in Article 20 between a ‘measure’ and a ‘judgment’, I would have expected it to be more explicit. Rather, it seems to me, the choice of word is likely to stem from the ancestry of the provision, whose precursors (67) refer almost exclusively to ‘measures’. 163. Next, the Czech, Portuguese and United Kingdom Governments all stress that Article 20 is an exception to the general scheme of the Regulation and, as such, should be interpreted strictly. I accept that Article 20 is an exception – but it is an exception to the general rules on jurisdiction (including lis pendens (68)) in Chapter II, among which it is to be found, and not to those on recognition and enforcement in Chapter III. I agree, therefore, that Article 20 must be interpreted strictly when deciding whether a situation falls within its scope, in particular as regards the conditions of urgency and presence within the territory. I am not however convinced that it should give rise, as an automatic corollary, to a restricted application of the provisions on recognition and enforcement, particularly in view of the apparently exhaustive list of grounds of non-recognition in Article 23 of the Regulation. (69) 164. A further argument, advanced by the mother and by the Hungarian and United Kingdom Governments, is based on paragraphs 50 to 52 of the judgment in A, (70) where the Court stated essentially that, since the measures with which Article 20 is concerned are those ‘available under the law of that Member State’, it is for the national legislature to lay them down and that, since they are adopted on the basis of national law, their binding nature must stem from the national legislation concerned. Therefore, those parties submit, provisional measures adopted on the basis of Article 20 alone derive no binding force from the Regulation itself and, since any such force derives from national law, it must be confined to the territory where that law is applicable. 165. However, it seems to me that any decision with which the Regulation is concerned, whether provisional or otherwise, whether taken on the basis of substantive jurisdiction under the Regulation or simply on the basis of Article 20, derives its binding force in the first place from the national law of the court adopting it, and only subsequently from the Regulation. (71) Indeed, under Article 28(1), it is an explicit condition for a declaration of enforceability in another Member State that a judgment on the exercise of parental responsibility must be enforceable in the Member State of origin. There seems thus to be no reason to treat issues relating to the enforcement of provisional measures taken in the circumstances set out in Article 20 differently from any other measures on the sole basis of the source of their binding force. (72) 166. Another argument advanced by the United Kingdom in its written observations is that recognition and enforcement of ‘Article 20 measures’ outside the territory of the originating State might undermine the overall scheme of the Regulation and the general rule that jurisdiction should lie with the Member State of the child’s habitual residence. Article 20 ensures that there is no gap in jurisdiction, but entails a risk of delay before the court with substantive jurisdiction can act. That risk could increase if Article 20 measures are to be enforced in other Member States. For example, one parent might seek an interim custody order from a court lacking substantive jurisdiction under the Regulation, in the circumstances set out in Article 20. If the other parent attempted to seise the court with substantive jurisdiction in the Member State of the child’s habitual residence, that court could not take jurisdiction until the court first seised declined it. As a matter of practice, that could take some time – during which the first parent would have obtained an order which was recognised and enforceable throughout Europe. 167. That approach thus appears to assume that, where application is made to a court of a Member State on the sole basis that the circumstances set out in Article 20 of the Regulation are present, that court is the ‘court first seised’ for the purposes of the rules on lis pendens in Article 19, so that the ‘court second seised’ cannot act until the former has declined jurisdiction. (73) 168. At the hearing, however, the United Kingdom took a different approach, viewing Article 20 as ‘carving out’, from the jurisdictional rules in the rest of the Regulation, a specific area in which those rules do not apply but national jurisdictional rules are preserved. The German Government added that, on a purely formal level, Article 20 followed Article 19, which applied only to the jurisdictional rules preceding it, and that Article 20 would be denied much of its useful effect if the rules on lis pendens applied to it. The Commission considered that the rules on lis pendens did apply, but that the Article 19 test of ‘the same cause of action’ should be applied rigorously with the result, in its view, that the cause of action would in practice virtually never be the same in substantive proceedings and in proceedings in the circumstances set out in Article 20(1). 169. I take the view that a court acting by virtue of Article 20 alone does not enjoy any jurisdiction conferred by the Regulation. It is merely ‘not prevented’ from taking such urgent measures as are necessary and as are available under national law, in respect of persons or assets within its territorial jurisdiction, to apply only until such time as the court having substantive jurisdiction takes appropriate action. The very fact that it acts solely on the basis of Article 20 means that its jurisdiction cannot be established for the purposes of Article 19, so that the proceedings before it do not trigger the rules on lis pendens. It seems clear from the structure of Article 20, and in particular from Article 20(2), that the provision creates no bar to seising the court having substantive jurisdiction under the Regulation, whose decisions will immediately supersede those taken on the basis of Article 20. The Commission’s view, on the other hand, while perhaps reaching much the same result in practice, seems unnecessarily convoluted and uncertain. 170. I therefore see no danger of undermining the overall scheme of the Regulation or the general rule conferring jurisdiction on the courts of the Member State of the child’s habitual residence if provisional measures taken in the circumstances set out in Article 20 are recognised or enforced in Member States other than that in which they were issued. As I understand that overall scheme, once it has been seised, the court having substantive jurisdiction remains competent at all times to take any appropriate measures. Any competence of another court to take provisional measures in the circumstances set out in Article 20 remains subordinate to that substantive jurisdiction. If there is any risk of delay, it stems not from the rules on lis pendens or from the enforceability of the measures taken in the circumstances set out in Article 20 but only from a possible lack of diligence in seising the court with substantive jurisdiction. On the other hand, the efficacy of measures taken in those circumstances – which are, by definition, urgently necessary – would be potentially easy to avoid, pending such seisin, if their enforceability were to evaporate as soon as the child was taken across a national border. 171. Of the arguments I have examined so far, therefore, none has convinced me that provisional measures taken in the circumstances set out in Article 20 of the Regulation must be treated differently, as regards recognition and enforcement in other Member States, from measures, provisional or otherwise, taken by a court having substantive jurisdiction under the Regulation. Another argument, however, advanced by the mother and by the German and Hungarian Governments, appears rather more cogent. 172. The wording of Article 20(1) of the present Regulation is identical to that of Article 12 of Regulation No 1347/2000 and (apart from the reference to ‘Convention’ rather than ‘Regulation’) to that of Article 12 of the Brussels II Convention. The explanatory memorandum to the Commission’s 1999 proposal leading to the adoption of Regulation No 1347/2000 (74) and the Borrás Report on the Brussels II Convention (75) both state (in identical terms) in relation to those provisions: ‘The rule laid down in this Article is confined to establishing territorial effects in the State in which the measures are adopted.’ For its part, the explanatory memorandum to the Commission’s 2002 proposal for the present Regulation (76) states, with regard to Article 20: ‘This Article follows closely Article 12 of Council Regulation (EC) No 1347/2000. ...’, although it makes no explicit mention of territorial effect. 173. The context is thus indicative of a deliberate intention on the part of the drafters of all three instruments to exclude provisional measures taken simply on the basis of urgency and presence, by a court lacking substantive jurisdiction, from the scope of the provisions on recognition and enforcement in other Member States. The Council must be presumed to have been aware of that intention when it adopted Regulation No 1347/2000 and to have approved it by making no alteration to Article 12 thereof. It may also, I think, be presumed that some explicit change would have been required in order to modify that approach in the context of the present Regulation. 174. It must be acknowledged that other elements in the more remote ancestry of the Regulation might militate in favour of recognition and enforcement. The Schlosser Report on the 1978 accessions to the Brussels Convention, (77) for example, stated, with regard to the equivalent provision of the Convention, that the wide variety of provisional measures available in the law of Ireland and of the United Kingdom would involve certain difficulties ‘where provisional judgments given in these States have to be given effect by the enforcement procedures of the original Member States of the Community’ – thus making it clear that enforcement in other Member States was contemplated. And the Lagarde Report on the 1996 Hague Convention (78) shows that measures of protection taken on the basis of urgency under Article 11 of that convention are to be recognised in all the Contracting States, whereas non-urgent provisional measures under Article 12 have only territorial effect. 175. None the less, despite such indications, persuasive though they may be, and despite the advantages which I can see (79) in the possibility of recognising and enforcing under the Regulation, in other Member States, measures ordered in the circumstances set out in Article 20(1) until such time as the court with substantive jurisdiction has taken action, it seems to me clear from the direct legislative history of the provision that such measures are intended to have their primary effect only within the Member State in which they are ordered. The provisions of Article 21 et seq. of the Regulation, which provide for near-automatic recognition and enforcement on other Member States, therefore do not apply to them. 176. However, I would stress that the conclusion which I have thus reached does not mean that the Regulation precludes any recognition or enforcement, in other Member States, of measures ordered in the circumstances set out in Article 20(1). It means, rather, that the recognition and enforcement of such measures are not governed by the Regulation. And, for matters not governed by the Regulation, pre-existing conventions remain applicable in relations between Member States. (80) One relevant convention might be the 1980 European Convention, (81) which does not distinguish between provisional and other measures, but Article 14 of which requires Contracting States to ‘apply a simple and expeditious procedure for recognition and enforcement of decisions relating to the custody of a child’. In the present case, the 1983 bilateral convention (82) might also prove relevant. 177. Consequently, if a provisional measure taken in the circumstances set out in Article 20(1) – and thus on the basis of jurisdiction and remedies available under national law – cannot benefit from the near-automatic recognition and enforcement procedures laid down in the Regulation, it may none the less benefit from other, albeit possibly more cumbersome, procedures derived from national law, and in particular those required by multilateral or bilateral conventions to which the Member States concerned are parties. 178. Having reached that view, I do not think it necessary to address the question (objection (iv) in point 113 above) whether the court of the Member State of enforcement can query jurisdiction assumed on the basis of Article 20. The fact that M was not in Spain at the time the contested order was made, and that one of the conditions in Article 20(1) was thus not fulfilled, is of no relevance to the German courts if the provisions on recognition and enforcement in the Regulation do not, in any event, apply when jurisdiction is assumed on that basis. The same type of consideration applies, in that case, to the allegation that the validity of the contested order had lapsed by the time its enforcement was sought. 179. In any event, if recognition and enforcement of a measure taken in the circumstances set out in Article 20(1) are not matters governed by the Regulation, then the prohibition of review of jurisdiction in Article 24 will not apply when such recognition or enforcement is sought. Final remarks 180. I have found it necessary, when analysing the issues raised in this reference for a preliminary ruling, to take a broad approach, and to consider matters which may well, in the final event, prove not wholly relevant to the resolution of the issues to be decided. 181. That is largely due to the apparent discrepancy between the basis (whatever it was) on which the Spanish court in fact considered itself to have jurisdiction and the assumption, in the proceedings before the referring court, as to what that basis was. 182. That discrepancy – taken together, it has to be said, with the lack of any submissions of any kind from the father – will have hindered not only the Court in its endeavour to provide a useful answer to the basic issue raised but also the Member States and the Commission in their attempts to assist the Court in that regard. Overall, it has probably contributed to the lengthening of a procedure which should, on the contrary, have been expedited to the extent possible, having regard to the best interests of the children concerned. 183. The discrepancy has arisen, it would seem, partly as a result of the lack of clarity of the contested order in stating the basis of jurisdiction on which it was adopted and partly, perhaps, from the procedural constraints imposed by or on the form of the mother’s appeal on a point of law to the Bundesgerichtshof. 184. Whatever its causes, however, the existence and the effects of the discrepancy lead me to stress yet again the duties placed on national courts as a corollary to the system of mutual trust set up by the Regulation, an essential aim of which is to ensure speedy resolution of disputes concerning parental responsibility by the court best placed to take a decision in the child’s best interests – and in this case the best interests of very young twins. 185. That aim has not been achieved in the present case. Conclusion 186. In the light of all the above considerations, I am of the opinion that the Court should answer the question raised by the Bundesgerichtshof as follows: – Provisional measures adopted by a court of a Member State on the basis of competence derived by that court from the rules on substantive jurisdiction in Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and [in] matters of parental responsibility must be recognised and enforced in other Member States in the same way as any other judgment adopted on the same basis, in accordance with Article 21 et seq. of that Regulation. – Provisional measures adopted by a court of a Member State on the basis of national law in the circumstances set out in Article 20 of Regulation No 2201/2003 do not have to be recognised or enforced in other Member States in accordance with Article 21 et seq. of the Regulation. That Regulation does not, however, preclude their recognition or enforcement in accordance with procedures derived from national law, in particular those required by multilateral or bilateral conventions to which the Member States concerned are parties. – A court hearing an application for recognition or non-recognition of a provisional measure, or for a declaration of enforceability, is entitled to ascertain the basis of jurisdiction relied on by the court of origin either from the terms or content of its decision or, if necessary, by communicating with that court directly or through the appropriate central authorities. If, but only if, neither of those means produces a clear and satisfactory result, it should be presumed that jurisdiction was assumed in the circumstances set out in Article 20(1). In the case of provisional decisions on parental responsibility, the same means of communication may be used to verify whether the decision is (still) enforceable in the Member State of origin, if the accuracy of a certificate issued pursuant to Article 39 of Regulation No 2201/2003 is challenged; and, if such communication is unsuccessful, other means of proof may be used, provided that they are adduced in a timely manner. 1 – Original language: English. 2 – Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and [in] matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) (hereinafter ‘the Regulation’ or, when appropriate to distinguish it from other regulations, ‘the present Regulation’). 3 – Convention on the civil aspects of international child abduction, concluded on 25 October 1980 (‘the 1980 Hague Convention’). 4 – Although not, perhaps, directly relevant here, under Article 12(1), a court exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment has jurisdiction in any connected matter relating to parental responsibility where (a) at least one of the spouses has parental responsibility; and (b) jurisdiction has been accepted expressly or unequivocally by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child. 5 – Third paragraph of, respectively, Article 234 EC and Article 267 TFEU. 6 – Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 27 September 1968. A consolidated version of the Convention, as amended by the four subsequent Accession Conventions, is published in OJ 1998 C 27, p. 1. It is still in force in relations between Denmark and the other Member States, as well as in respect of certain overseas territories. 7 – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), as amended – also known as the ‘Brussels Regulation’. 8 – 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) – also known as the ‘Brussels II Regulation’. This regulation was preceded by, and largely reproduces the terms of, the ‘Brussels II Convention’ on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (OJ 1998 C 221, p. 2), which was never in fact ratified, but on the drafting of which there is an explanatory report (the Borrás Report, ibid., p. 27). 9 – There was also an intermediate proposal from the Commission for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility (COM(2001) 505 final, OJ 2001 C 332E, p. 269), which was never adopted as such. 10 – The Court has, for example, on many occasions referred for guidance to the Jenard Report on the Brussels Convention (OJ 1979 C 59, p. 1) and the Schlosser Report on the Convention on the accession of Denmark, Ireland and the United Kingdom thereto (ibid., p. 71). The Borrás Report mentioned in footnote 8 may similarly provide some guidance for the interpretation of Regulation No 1347/2000 and its successor, the present Regulation, as may the explanatory memoranda to the Commission’s various proposals for regulations. 11 – See point 15 above. 12 – See point 16 above; it is also identical (except for the use of the word ‘Regulation’ rather than ‘Convention’) to Article 12 of the Brussels II Convention cited in footnote 8. 13 – See points 17 to 19 above. 14 – See points 20 to 22 above. 15 – See point 23 above. 16 – The various Hague Conventions referred to can be found on the website (http://www.hcch.net) and in the publications of the Hague Conference on Private International Law, of which all the Member States and the European Union itself (see Council Decision 2006/719/EC of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law, OJ 2006 L 297, p. 1, read in conjunction with the last sentence of Article 1 TEU) are members. The website also includes the Steiger Report on the 1961 Convention, the Pérez-Vera Report on the 1980 Convention and the Lagarde Report on the 1996 Convention, which may be referred to. 17 – Convention du 12 juin 1902 pour régler la tutelle des mineurs (‘the 1902 Convention’). 18 – Convention concerning the powers of authorities and the law applicable in respect of the protection of infants, concluded on 5 October 1961 (‘the 1961 Convention’). For States parties to both the 1902 and 1961 Conventions, the latter applies. The 1902 Convention is, as far as Member States are concerned, still in force in relationships between Luxembourg, Belgium and Romania (see Comparative study on enforcement procedures of family rights, T.M.C. Asser Instituut, The Hague, 2007, p. 84). The 1961 Convention has been ratified by 11 of the current Member States, including both Germany and Spain. 19 – Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, concluded on 19 October 1996 (OJ 2008 L 151, p. 39). It has been signed by all the Member States of the Union, but ratified at present by only eight, not including Germany or Spain; all the remaining Member States except Denmark have been authorised to ratify or accede to it, simultaneously, in the interest of the Union (see Council Decision 2008/431/EC, ibid., p. 36). 20 – Cited in footnote 3 above. The 1980 Hague Convention has been ratified by all the Member States. 21 – Concluded in Luxembourg on 20 May 1980, European Treaty Series No 105 (‘the 1980 European Convention’). It has currently been ratified by all the Member States except Slovenia. 22 – See point 18 above. 23 – Vertrag zwischen der Bundesrepublik Deutschland und Spanien über die Anerkennung und Vollstreckung von gerichtlichen Entscheidungen und Vergleichen sowie vollstreckbaren öffentlichen Urkunden in Zivil- und Handelssachen; Convenio entre España y la República Federal de Alemania sobre reconocimiento y ejecución de resoluciones y transacciones judiciales y documentos públicos con fuerza ejecutiva en materia civil y mercantil (‘the 1983 bilateral convention’). 24 – Articles 81, 86 and 90 of the Spanish Civil Code; Article 777 of the Ley de enjuiciamiento civil (Law on civil procedure, ‘LEC’). 25 – See Article 46 of the Regulation, quoted in point 23 above. It appears, however, that such court approval was not in fact subsequently obtained. 26 – It appears that ‘preliminary’ provisional measures may be requested prior to the introduction of an application for divorce, separation or nullity of marriage under Article 771 of the LEC, provided that the main application is submitted within a certain time limit, failing which they lapse. That procedure seems to have been requested and applied by analogy in the present case, where the parents were not married. See further footnote 34 below. 27 – In her observations to the Court, she states that she had to look after M, who was ill at the time. 28 – On 20 September 2007; see point 67 et seq. below. 29 – See point 67 et seq. below. 30 – See point 51 above, and Article 46 of the Regulation, in point 23. 31 – By contrast, to the extent that M’s move to Germany might have been lawful, Articles 8 and 9, read together, would have implied that he had acquired a new habitual residence there, founding jurisdiction in the German courts. 32 – Prior to rectification, the order had awarded joint custody to the father; that is described as a ‘material error’ in the rectifying order. 33 – See point 21 above. That form of certificate concerns judgments on parental responsibility. Although one of the measures ordered required the mother to return M to the father, the Spanish court did not use the form of certificate in Annex IV, which is for judgments concerning the return of the child in situations following an abduction, an initial order for the child’s return and a judgment of non-return pursuant to the 1980 Hague Convention (see Articles 11(8), 40(1)(b) and 42 of the Regulation and Article 13 of the 1980 Hague Convention). 34 – This appears to be pursuant to Article 771(5) of the LEC (‘Los efectos y medidas acordados de conformidad con lo dispuesto en este artículo sólo subsistirán si, dentro de los treinta días siguientes a su adopción se presenta la demanda de nulidad, separación o divorcio’ – emphasis added). Article 771, to which the Spanish court refers in its order, concerns provisional measures preliminary to an application for nullity, separation or divorce. Under Article 772(1), if the application is accepted as admissible, the previous provisional measures are then subsumed into the new procedure. Although the parents were never married, those provisions appear to be applicable by analogy, in the light, as the Spanish Government has stated, of Article 748(4), under which the provisions of the title of which they form part apply to procedures which concern exclusively the custody of minor children. 35 – See point 45 above. 36 – The Court has not yet received any such question from the Amtsgericht – which, of course, was not competent to refer a question in this area before the Treaty on the Functioning of the European Union came into effect on 1 December 2009. 37 – Case C‑523/07 [2009] ECR I‑0000. 38 – Compare Case 166/80 Klomps v Michel [1981] ECR 1593. 39 – See also points 70 to 74 of the view of Advocate General Bot in Case C‑403/09 PPU Detiček [2009] ECR I‑0000. 40 – Initiative of the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden with a view to the adoption of a Directive of the European Parliament and of the Council on the rights to interpretation and to translation in criminal proceedings (OJ 2010 C 69, p. 1). 41 – It is plausible – although I have discerned no explicit statement to that effect in either case – that the Spanish court in its contested order, and the Spanish Government in its submissions at the hearing, have taken the view that, for the purposes of the Regulation, twins are deemed to have a joint habitual residence, and do not acquire a new one until both have moved to a new Member State. Whatever view they may have taken, no such rule is laid down in the Regulation, nor, it seems to me, can it reasonably be deduced therefrom. 42 – Cited in footnote 37 above, paragraph 61 et seq., points 4 and 5 of the ruling. 43 – See points 54 to 61 above. In certain circumstances, the parents’ last joint residence, and the father’s continuing residence, in Spain could have founded jurisdiction under Article 12(1) (see footnote 4 above), while M’s previous habitual residence there, coupled with the father’s (albeit somewhat uncertain) objections to his removal could have founded jurisdiction under Article 10 (see point 10 above); and the reference to priority under Article 19 seems relevant only in relation to conflicts of substantive jurisdiction (see further point 169 below). 44 – See further point 169 below. 45 – See, for example, Joined Cases C‑329/06 and C‑343/06 Wiedermann and Funk [2008] ECR I‑4635, paragraph 45 and the case-law cited there. 46 – An example given in the Lagarde Report on the 1996 Hague Convention, cited in footnote 16 above, point 120. 47 – In Case C‑351/89 Overseas Union Insurance and Others [1991] ECR I‑3317, paragraph 22 et seq., the Court noted that the objective of avoiding negative conflicts of jurisdiction may be achieved without the court second seised examining the jurisdiction of the court first seised, and that in no case is it better placed to determine whether the latter has jurisdiction. The Convention rules are common to both courts and may be interpreted and applied with the same authority by each of them. Where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised. In Case C‑116/02 Gasser [2003] ECR I‑14693, paragraph 46 et seq., the Court confirmed those statements, pointing out that Article 21 was a procedural rule based clearly and solely on the chronological order in which the courts involved are seised. 48 – See, for example, points 63 and 64 of Advocate General Kokott’s Opinion in A, cited in footnote 37 above. 49 – As, indeed, she appears to have done in the subsequent main proceedings in Spain, even before any firm decision has been taken. 50 – I note, from the mother’s statements in writing and at the hearing, that her appeal against the Spanish court’s decision of 28 October 2008, confirming its international jurisdiction with regard to both twins in the main proceedings, was not decided until February or March 2010. 51 – Other than Article 20, with which the present hypothesis is not concerned. 52 – As has recently been recognised, at least implicitly, by the Court in Detiček (cited in footnote 39 above), holding that a provisional award of custody by the court having substantive jurisdiction prevailed over a subsequent provisional award, purportedly based on Article 20, by a court in another Member State to which the child had been removed, unlawfully in terms of the earlier award. 53 – Article 23(b), (c) and (d) respectively. 54 – See point 63 above. See also Case C‑14/08 Roda Golf & Beach Resort [2009] ECR I‑0000, paragraphs 24 to 30. 55 – See point 156 et seq. below. 56 – Case C‑99/96 [1999] ECR I‑2277, in particular, paragraphs 50 and 55. 57 – See point 96 and footnote 42 above. 58 – See points 54 to 61 and 104, and footnote 43 above. 59 – Cited in footnote 39 above. 60 – See point 65 above. 61 – See Articles 41(1) and 42(1). 62 – Article 43(2). 63 – That view appears to be borne out by recitals 23 and 24 in the preamble, which seem to relate only to ‘judgments on rights of access and judgments on return’ when speaking of automatic recognition without grounds for refusal of enforcement and of the impossibility of appealing against a certificate. 64 – Some measures, of course, such as judicial authorisation for the sale of perishable property belonging to the child (or to the couple, since Article 20 covers also divorce, legal separation or marriage annulment), or for a surgical operation to the child (both examples cited in the Lagarde Report on the 1996 Hague Convention, cited in footnote 16 above, point 68, concerning Article 11(1) of that convention), will have de facto effects which cannot but be recognised in other Member States. 65 – ‘... a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision’. 66 – Citing Case C‑195/08 PPU Rinau [2008] ECR I‑5271, paragraph 80 et seq. 67 – See points 30 to 47 above. 68 – See point 169 below. 69 – See point 18 above; a corresponding list of grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment is in Article 22. I note, moreover, that at point 56 of her Opinion in A (cited in footnote 37 above), on which the United Kingdom Government relies, Advocate General Kokott was addressing only the question of jurisdiction, with which that case was concerned, and not the question of recognition and enforcement. 70 – Cited in footnote 37 above. 71 – Moreover, since the Regulation contains no provisions of substantive law in either of the fields to which it relates, it will always be the case, even where jurisdiction is clearly based on one of the provisions of Articles 8 to 15, that any measures ordered must be, in practice, ‘available under national law’. 72 – I would again stress (see footnote 69 above with regard to Advocate General Kokott’s Opinion) that, in its judgment in A, the Court was not addressing any issue of enforcement in another Member State, but was merely asked whether provisions of national law concerning a provisional measure taken in the circumstances set out in Article 20 were binding – and replied that it was a matter for national law. 73 – An assumption which may be shared by the Amtsgericht and Oberlandesgericht Stuttgart (see points 69 and 70 above). 74 – COM(1999) 220 final. 75 – Cited in footnote 8 above. 76 – COM(2002) 222 final. 77 – Cited in footnote 10 above, point 183. 78 – Cited in footnote 16 above, points 72 and 75. 79 – See point 170 above, in fine. 80 – See Articles 59 to 62 of the Regulation. 81 – See points 40 and 46 above. 82 – See point 48 above.