ORDER OF THE PRESIDENT OF THE COURT
29 January 2014 (*)
(Expedited procedure)
In Case C‑436/13,
REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom), made by decision of 2 August 2013, received at the Court on 2 August 2013, in the proceedings
E.
v
B.
THE PRESIDENT OF THE COURT,
having regard to the proposal of A. Arabadjiev, Judge-Rapporteur,
after hearing the Advocate General, N. Wahl,
makes the following
Order
1        This request for a preliminary ruling concerns the interpretation of Articles 8, 12 and 15 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 (OJ 2003 L 338, p. 1).
2        The request has been made in proceedings between Mr E. (‘the father’) and Ms B. (‘the mother’) concerning determination of the place of residence of their child, S. (‘the child’), and the father’s rights of access as well as the jurisdiction of the courts of the United Kingdom to hear the dispute in the main proceedings.
3        The facts in the main proceedings, as they appear, first, from the request for a preliminary ruling, next, from the chronology of the facts and proceedings set out in the order annexed to that request and, finally, from the note concerning the father’s rights of access, received at the Registry of the Court of Justice on 7 August 2013, may be summarised as follows.
4        The father, who is a Spanish national, and the mother, who is a British national, met in Spain at the end of 1999. The child was born of that relationship on 27 May 2005 in Spain.
5        In November 2009, the father and mother separated and on 6 February 2010, the mother settled with the child in the United Kingdom. Following that move, the parties to the main proceedings attempted to reach an agreement on sharing their rights over the child, which gave rise to repeated court proceedings in Spain and in the United Kingdom.
6        On 21 July 2010, the parties to the main proceedings reached an agreement (‘the agreement of 21 July 2010’) on the rights of custody which were attributed to the mother, and the rights of access, given to the father, which they signed in the presence of a clerk of the Juzgado de Primera Instancia de Torrox (‘Court of First Instance, Torrox’) (Spain). That agreement was submitted for approval to that court which, on 20 October 2010, adopted a decision confirming its terms.
7        On 17 December 2010, the mother lodged an application, pursuant to Article 8 of the Children Act 1989, with the Principal Registry of the High Court of Justice of England and Wales (Family Division) (United Kingdom). She sought, inter alia, a residence order and a variation of the terms of the rights of access under the agreement of 21 July 2010 and the decision issued by the Court of First Instance, Torrox (‘a contact order’). It is apparent from paragraphs 4 and 6 of the note on the father’s rights of access that the mother seeks, in particular, to reduce the child’s period of residence with the father during school holidays.
8        On 31 January 2011, the father submitted an application before the High Court seeking the enforcement, pursuant to Articles 41 and 47 of Regulation No 2201/2003, of the decision of the Court of First Instance, Torrox, of 20 October 2010.
9        At the hearing of 16 December 2011 before the High Court of Justice of England and Wales (Family Division), the mother acknowledged that, having regard to the agreement of 21 July 2010 and to that decision, she had accepted the jurisdiction of the Spanish courts and tribunals under Article 12(3) of Regulation No 2201/2003. She therefore stated that she would not challenge enforcement of the decision of the Court of First Instance, Torrox, of 20 October 2010, which was therefore duly enforced, in accordance with the terms of the agreement of 21 July 2010.
10      However, on 20 December 2011, the mother submitted an application to the Court of First Instance, Torrox, under Article 15 of Regulation No 2201/2003, requesting that jurisdiction to hear the actions concerning rights of custody over and rights of access to the child be transferred to the courts of England and Wales. The Court of First Instance, Torrox, did not grant that request.
11      On 30 June 2012, the mother asked the High Court of Justice of England and Wales (Family Division) to declare that the courts of the United Kingdom had jurisdiction, under Article 8 of Regulation No 2201/2003, to hear those actions from then on, on the ground that the child had his habitual residence in the United Kingdom. By decision of 25 March 2013, that court granted the mother’s application.
12      The father brought an appeal against that decision before the referring court. The date for the hearing before that court was set for the month of October 2013.
13      It is apparent from the note concerning the father’s rights of access that, pending a ruling on the substance of the appeal before it, the Court of Appeal (England and Wales) (Civil Division) does not consider itself to be in a position to rule on the disputed rights of access. Not knowing whether it has jurisdiction on the substance or only jurisdiction to enforce the agreement of 21 July 2010, the referring court has not taken any decision on the rights of access for the period since 6 January 2013, the date until which the parties to the main proceedings had agreed on rights of access. Since then, the child’s contact with the father has been on an ad hoc basis and not in accordance with either the agreement of 21 July 2010 or the mother’s wishes.
14      In those circumstances, the Court of Appeal (England and Wales) (Civil Division) decided to stay the proceedings and to request a preliminary ruling from the Court of Justice.
15      The referring court asks, in essence, whether a prorogation of jurisdiction in accordance with Article 12(3) of Regulation No 2201/2003 ends with the final judicial decision concluding the proceedings at issue or whether it continues after such a decision. Furthermore, it asks whether Article 15 of Regulation No 2201/2003 allows a court of a Member State to transfer jurisdiction, in circumstances where no proceedings relating to the child concerned are pending, to a court in another Member State with which the child has a particular link.
16      The referring court also asked the Court of Justice to apply the urgent preliminary ruling procedure, pursuant to Article 107 of the Rules of Procedure of the Court. That request was rejected by decision of 8 August 2013.
17      By letter of 20 September 2013, which was received at the Registry of the Court of Justice on 23 September 2013, the referring court requested the Court of Justice to apply an expedited procedure to the present case, under Article 105(1) of the Rules of Procedure.
18      That provision states that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of the Rules of Procedure.
19      In support of its application, the referring court states that the child has been the subject of judicial proceedings between the parties to the main proceedings for a very considerable time. As the jurisdiction of both the courts of the United Kingdom and those of Spain to hear the dispute in the main proceedings is at issue, no court can take enforceable judgments concerning rights of custody over and rights of access to the child, before a ruling is made by the Court of Justice. That situation is highly prejudicial to the welfare of the child, who is of a young age and at a particularly sensitive stage of development.
20      The referring court also states that, by an order of 4 July 2013, the Spanish courts imposed a penalty of EUR 16 000 for the mother’s failure to comply with the agreement of 21 July 2010 and raised the possibility of giving the father custody of the child. Consequently, any delay to the case in the main proceedings could lead to financial hardship for the mother and could affect the emotional state of the child.
21      In the present case, although the referring court has highlighted the importance of the dispute in the main proceedings, it has not, however, established that the nature of the case requires that it be dealt with within a short time.
22      In that regard, first of all, it must be borne in mind that, in accordance with the agreement of 21 July 2010, the mother has rights of custody over the child and the father has rights of access. It is apparent, furthermore, from the summary of the facts in the main proceedings that the child lives with the mother and is not denied contact with the father, even if that contact does not always take place in accordance with that agreement.
23      Finally, there is nothing in the file before the Court to suggest that contact between the child and the father, in accordance with the agreement of 21 July 2010, as ordered by the Court of First Instance, Torrox, would harm the interests of the child.
24      Finally, it may be inferred from the account of the facts by the referring court that, currently, no other question which significantly affects the child’s welfare is in dispute between the parties to the main proceedings. In particular, the file before the Court does not contain anything to suggest that an urgent application for a provisional measure has been brought before the courts of the United Kingdom, pursuant to Article 20 of Regulation No 2201/2003 (see, to that effect, Case C‑403/09 PPU Detiček [2009] ECR I‑12193, paragraphs 38 and 42).
25      Accordingly, the legal uncertainty affecting the child is not capable of constituting an exceptional circumstance that could justify the application of an expedited procedure (see, to that effect, the orders of the President of the Court of 8 September 2011 in Joined Cases C‑356/11 and C‑357/11 O and Others, paragraph 14; of 7 February 2012 in Case C‑648/11 MA and Others, paragraph 12; and of 5 October 2012 in Case C‑394/12 Abdullahi, paragraph 14).
26      That finding is borne out by the fact that it is apparent, from the detailed chronology of the facts and proceedings annexed to the order for reference, that the treatment of that case before the United Kingdom courts has, several times, been the subject of adjournments following agreements reached between the mother and father.
27      In addition, it must be borne in mind that neither the risk of economic loss (see, inter alia, order of the President of the Court of 21 September 2009 in Case C‑241/09 Fluxys, paragraph 11 and the case-law cited) nor the economic sensitivity of the case in the main proceedings (see, inter alia, order of the President of the Court of 3 July 2008 in Case C‑201/08 Plantanol, paragraph 9 and the case-law cited) are such as to establish the existence of urgency within the meaning of Article 105(1) of the Rules of Procedure.
28      Consequently, the request of the referring court to have an expedited procedure applied to the present case cannot be granted.
On those grounds, the President of the Court hereby orders:
The request by the Court of Appeal (England and Wales) (Civil Division) (United Kingdom) that the expedited procedure under Article 105(1) of the Rules of Procedure of the Court of Justice be applied to Case C‑436/13 is rejected.
[Signatures]
* Language of the case: English.