Opinion of the Advocate General — ECLI:EU:C:2018:242
Date: 2018-04-12
Language of the case: Bulgarian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (First Chamber), 31 May 2018 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 — Scope — Definition of ‘rights of access’ — Rights of access of grandparents to their grandchildren — Included (Council Regulation No 2201/2003, Arts 1(2)(a), and Art. 2.7 and 2.10) The concept of ‘rights of access’ referred to in Article 1(2)(a) and in Article 2.7 and 2.10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as including rights of access of grandparents to their grandchildren. That concept must be interpreted autonomously, taking account of the wording, scheme and objectives of Regulation No 2201/2003, in the light, in particular, of the travaux préparatoires for that regulation, as well as of other acts of EU and international law. According to recital 5 of the regulation, it covers ‘all’ decisions on parental responsibility. Among these, decisions on visiting rights are identified as a priority, according to recital 2 of the regulation. It is apparent from the Commission working document on mutual recognition of decisions on parental responsibility (COM(2001) 166 final) of 27 March 2001 that the EU legislature asked itself who may exercise parental responsibility or be granted rights of access. The EU legislature ultimately chose not to provide for a limitation of the range of persons who may exercise parental responsibility or hold rights of access. As noted by the Advocate General in point 65 of his Opinion, it is clear, in the light of the travaux préparatoires for Regulation No 2201/2003, that the EU legislature intended to extend the scope of 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), which was limited to disputes concerning parents, and that it contemplated all decisions concerning parental responsibility and therefore concerning rights of access, irrespective of the nature of the persons who may exercise those rights and without excluding grandparents. It should also be pointed out that, if rights of access did not concern all of those persons, questions relating to those rights could be determined not only by the court designated in accordance with Regulation No 2201/2003 but also by other courts which might consider themselves to have jurisdiction on the basis of private international law. There would be a risk that conflicting or even irreconcilable decisions might be adopted, as the rights of access granted to a relative of the child could adversely affect the rights of access granted to a holder of parental responsibility. Consequently, it is important, in order to avoid the adoption of conflicting measures and in the best interests of the child, that the same court — that is to say, as a rule, the court of the child’s habitual residence — should rule on rights of access. (see paras 19, 29-32, 35-37, operative part)