View of the Advocate General — ECLI:EU:C:2010:544
Date: 2010-09-22
Language of the case: English
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Ireland

summary of the case-law, see Case C‑533/08 TNT Express Nederland [2010] ECR I‑0000, paragraphs 58 to 61. 11 – The legal basis of Regulation No 2201/2003 is stated to be Article 61(c) EC [which refers to Article 65 EC] and Article 67(1) EC; after the entry into force of the Treaty of Lisbon, see Article 81 TFEU. 12 – See Articles 60 and 62 of Regulation No 2201/2003. 13 – See, in particular, McEleavy, P., ‘The New Child Abduction Regime of the European Union: Symbiotic Relationship or Forced Partnership?’, Journal of Private International Law, April 2005, p. 5. 14 – See recital 17 in the preamble to Regulation No 2201/2003. 15 – See Borrás, A., ‘Protection of Minors and Child Abduction under the Hague Conventions and the Brussels II bis Regulation’, Japanese and European Private International Law in Comparative perspective, edited by Basedow, J., et al., Mohr Siebeck, Tübingen, 2008, p. 345. 16 – For example, as regards the three ways in which rights of custody can be attributed, in the convention they are preceded by the expression ‘in particular’, which suggests that the list which follows is merely for illustration, whereas in the wording of the regulation the same list appears to be exhaustive. 17 – See the report of Professor Lowe, N., ‘A study into the rights and legal status of children being brought up in various forms of marital or non-marital partnerships and cohabitation’, Council of Europe, Strasbourg, 25 September 2009, CJ‑FA(2008) 5, p. 32. The report covers some 30 countries, that is, almost all the Member States of the European Union and a certain number of other countries which are members of the Council of Europe. 18 – Professor Lowe raises the question in his report, op. cit., whether there should be a harmonisation of the approach towards married or unmarried couples in the future, but currently there has been no such harmonisation. 19 – For the 1980 Hague Convention, the precise use of the expression ‘in particular’ appears to have a degree of importance: ‘Likewise, the sources from which the custody rights which it is sought to protect derive are all those upon which a claim can be based within the context of the legal system concerned. In this regard, paragraph 2 of Article 3 takes into consideration some – no doubt the most important – of those sources, while emphasising that the list is not exhaustive … Now, as we shall see in the following paragraphs, these sources cover a vast juridical area; and the fact that they are not exhaustively set out must be understood as favouring a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.’ See Explanatory Report by Pérez‑Vera, E., Acts and Documents of the Fourteenth Session (1980), the Hague Conference on Private International Law, tome III , p. 446, paragraph 67 (the explanatory report can be accessed at: http://hcch.e‑vision.nl/upload/expl28.pdf). 20 – [This footnote concerns the translation of ‘inchoate rights’ and is not material to the English version.] 21 – See Article 6(1) TEU. 22 – See Article 51(1) of the Charter. 23 – See Article 6(3) TEU. 24 – I note moreover that the Treaty now provides for the accession of the European Union to the ECHR, in Article 6(2) TEU. Article 6(2) emphasises, as does Article 6(1), that such an accession is not to affect the competences of the European Union as defined in the Treaties. 25 – Zauneggerv.Germany, of 3 December 2009 (application No 22028/04). On that basis, the German Constitutional Court (BVerfG) recently ruled that the German legislation on this matter is contrary to the German Constitution (judgment of 21 July 2010, 1 BvR 420/09). 26 – Guichardv.France ECHR 2003-X 714, 2 September 2003 (application No 56838/00). 27 – I would point out that Mr McB.’s name does not appear on the birth certificates of two of the three children concerned. 28 – See Article 7(2) ECHR and, for example, A.W. Khanv.United Kingdom, 12 January 2010 (application No 47486/06).