62015CP0215
VIEW OF ADVOCATE GENERAL
MENGOZZI
delivered on 10 September 2015 (
1
)
Case C‑215/15
Vasilka Ivanova Gogova
v
Ilia Dimitrov Iliev
‛Jurisdiction of the courts of a Member State in matters of parental responsibility — Regulation (EC) No 2201/2003 — Dispute between the parents concerning the possibility for the child of travelling abroad and the issuing to it of identity documents — Article 1(1) — Concept of ‘civil matters’ — Article 2(7) — Concept of parental responsibility — Article 12 — Non-appearance of the defendant — Jurisdiction not contested by the defendant’s legal representative appointed by the court’
1.
In this case, the Court is asked to rule on the substantive scope 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. (
2
) This case will enable the Court to clarify its case-law on the applicability of that regulation to measures which, from the point of view of the legal system of a Member State, fall under public law.
2.
Above all, this case will provide the Court with the opportunity of ruling on the prorogation of jurisdiction, in matters of parental responsibility, of the court of the Member State with which the child has a substantial connection, as provided for in Article 12(3) of Regulation No 2201/2003. The Court must determine here whether a party who does not enter an appearance can be regarded as having accepted the jurisdiction of the court within the meaning of that provision where that party is represented by a court-appointed representative and that representative does not challenge the court’s jurisdiction. That question has already been examined in connection with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (
3
) but not in connection with Regulation No 2201/2003.
I – Legal framework
A – EU law
3.
According to Article 1 of Regulation No 2201/2003:
‘1.   This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a)
…;
(b)
the attribution, exercise, delegation, restriction or termination of parental responsibility.
2.   The matters referred to in paragraph 1(b) may, in particular, deal with:
(a)
rights of custody and rights of access;
(b)
guardianship, curatorship and similar institutions;
(c)
the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
(d)
the placement of the child in a foster family or in institutional care;
(e)
measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.
3.   This Regulation shall not apply to:
(a)
the establishment or contesting of a parent-child relationship;
(b)
decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
(c)
the name and forenames of the child;
(d)
emancipation;
(e)
maintenance obligations;
(f)
trusts or succession;
(g)
measures taken as a result of criminal offences committed by children.’
4.
Article 2(7) of Regulation No 2201/2003 defines ‘parental responsibility’ as ‘all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access’.
5.
Article 2(10) of Regulation No 2201/2003 defines ‘rights of access’ as including, ‘in particular the right to take a child to a place other than his or her habitual residence for a limited period of time’.
6.
Article 8 of Regulation No 2201/2003 provides:
‘1.   The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
2.   Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.’
7.
Article 12(1) of Regulation No 2201/2003 provides that ‘the courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a)
at least one of the spouses has parental responsibility in relation to the child;
and
(b)
the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner 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.’
8.
Article 12(3) of Regulation No 2201/2003 provides that ‘the courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a)
the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;
and
(b)
the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.’
B – Bulgarian legislation
9.
According to Article 127a of the Family Code (Semeen kodeks, ‘the SK’):
‘1.   Questions concerning travel abroad by a child and the issue of the identity documents needed for that purpose are to be decided by common agreement of the parents.
2.   Where the parents do not reach agreement as provided for in paragraph 1, the dispute between them shall be resolved by the Rayonen sad [ (
4
)] for the child’s current place of residence.
3.   Proceedings before the court shall be commenced at the request of either parent. The other parent shall be heard, unless he fails to appear without good reason. The court may take evidence on its own initiative.
4.   The Court may order provisional enforcement of the judgment delivered.’
10.
Article 45(1) of the Law on Bulgarian identity documents (Zakon za balgarskite dokumenti za samolichnost/za balgarskite lichni dokumenti, ‘the ZBLD’) provides that applications for passports for minors are to be made by their parents in person.
11.
According to Article 78(1) read in conjunction with Article 76(9) of the ZBLD, the Minister for Justice or a person authorised by him may prohibit a child from leaving national territory unless written consent is produced in the form of a notarial act by which the parents authorise their child to travel.
12.
According to Article 47 of the Bulgarian Code of Civil Procedure (Grazhdanski protsesualen kodeks, ‘the GPK’):
‘1.   Where the defendant cannot be found at the address stated in the documents, and no person can be found who agrees to receive service, the server shall affix a notice to the door or letter box of the person concerned; if there is no access to these, the notice is to be posted on the entrance door of the building or in a visible place nearby. If he has access to the letter box, the server shall also place a notice in the letter box.
2.   The notice shall state that the documents have been deposited at the court registry if service is by a court employee or officer; that they have been deposited at the offices of the municipality if service is by a municipal employee; and that they may be collected there within two weeks from the date of affixing the notice.
3.   Where the defendant does not appear in order to collect a copy of the documents, the court shall require the applicant to provide information on the defendant’s registered address, except in the cases referred to in Articles 40(2) and 41(1), in which case the notice is to be added to the documents. If the address stated does not correspond to the permanent or current address of the party, the court shall order service at the permanent or current address in accordance with the procedure laid down in paragraphs 1 and 2.
4.   Where the server establishes that the defendant does not reside at the address stated, the court shall instruct the applicant to provide information on the defendant’s registered address notwithstanding the affixing of the notice mentioned in paragraph 1.
5.   Service is deemed to have taken place on expiry of the period prescribed for collecting it from the court registry or municipal offices.
6.   On establishing that service has taken place correctly, the court shall order the document served to be added to the documents in the case, and shall appoint a special representative at the applicant’s expense.’
II – Facts, main proceedings and questions referred for a preliminary ruling
13.
The appellant, who is a Bulgarian national, lives in Italy, where she lived for several years with Mr Ilia Dimitrov Iliev, who is also a Bulgarian national. They had a daughter, who was born on 2 November 2004.
14.
The appellant and Mr Iliev are separated. The appellant lives with her daughter in Milan, where she is permanently employed and where her daughter is in the fourth year of primary school. Mr Iliev also lives in Italy, where he is permanently employed. He sees his daughter every two or three weeks.
15.
The child is a Bulgarian national. A Bulgarian passport was issued to her, which was valid until 5 April 2012. However, Mr Iliev did not provide the assistance necessary for the renewal of his daughter’s passport.
16.
The appellant therefore applied to the Rayonen sad, Petrich, on the basis of Article 127a of the SK, seeking to resolve the disagreement between the parents regarding their daughter’s ability to travel abroad and the issuing of the identity documents necessary for that purpose, thus remedying the father’s failure to give approval.
17.
Having established that the conditions laid down in Article 47(6) of the GPK had been met, the Rayonen sad appointed a special representative for the father after the applicant payed the fee of the latter, determined by the Rayonen sad. The special representative did not challenge the jurisdiction of the Bulgarian court to hear and determine the dispute.
18.
By order of 10 November 2014, the Rayonen sad, Petrich, dismissed the action as inadmissible. It declined jurisdiction and closed the proceedings. It found that, as the case concerned the exercise of parental responsibility and the child’s habitual place of residence was in Italy, only an Italian court had jurisdiction to hear and determine the case, pursuant to Article 8 of Regulation No 2201/2003.
19.
The appellant appealed against the order of the Rayonen sad, Petrich, of 10 November 2014.
20.
The Okrazhen sad, (
5
) Blagoevgrad, upheld the order of the Rayonen sad. It considered, like the Rayonen sad, that the dispute concerned parental responsibility and that, as the child’s habitual place of residence was in Italy, Article 8 of Regulation No 2201/2003 determined that an Italian court should have jurisdiction. It also stated that the prorogation of jurisdiction provided for in Article 12(1)(b) of that regulation was not applicable in that it was not the respondent, but a representative appointed by the court to represent him, who had appeared.
21.
The appellant appealed on a point of law against the order of the Okrazhen sad to the Varhoven kasatsionen sad (Supreme Court of Cassation). The latter is uncertain whether Regulation No 2201/2003 is applicable to the dispute: it asks whether authorisation for the child to travel abroad and the issuing of a passport falls within the scope of the exercise of parental responsibility within the meaning of Article 1(1)(b) of that regulation.
22.
The Varhoven kasatsionen sad states that it has itself issued two contradictory orders: one, dated 1 December 2010, in which it held that a dispute under Article 127а of the SK, which states that a disagreement between the parents regarding the child’s ability to travel abroad and the issuing of the identity documents required for that purpose may be brought before the court, is not covered by the concept of parental responsibility within the meaning of Article 1(1)(b) of Regulation No 2201/2003 and therefore does not fall within the scope of that regulation; the other, dated 9 January 2014, in which it held that such a dispute was covered by the concept of parental responsibility.
23.
The Varhoven kasatsionen sad is also uncertain whether the prorogation of jurisdiction provided for in Article 12(1)(b) of Regulation No 2201/2003 is applicable, as the respondent, although he has not contested the Bulgarian court’s jurisdiction, is represented by a court-appointed representative.
24.
The Varhoven kasatsionen sad therefore decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1)
Does the possibility, provided for by law, for civil courts to resolve a dispute between parents concerning their child’s ability to travel abroad and the issue of identity documents, where the applicable substantive law requires that those parental rights be exercised jointly with regard to the child, constitute a matter relating to “the attribution, exercise, delegation, restriction or termination of parental responsibility” within the meaning of Article 1(1)(b), in conjunction with Article 2(7) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility to which Article 8(1) of that regulation applies?
(2)
Do grounds establishing international jurisdiction apply in civil cases concerning parental responsibility where the decision replaces a legal act central to an administrative procedure concerning the child and the applicable law provides that this procedure must take place in a specific EU Member State?
(3)
Must it be assumed that there is a prorogation of jurisdiction within the meaning of Article 12(1)(b) of Regulation No 2201/2003 where the respondent’s representative has not challenged the jurisdiction of the court but where that representative has not been authorised by the respondent but rather appointed by the court owing to the difficulty in notifying the respondent in order that he might participate in the proceedings in person or through a representative instructed by him?’
25.
The referring court has asked the Court to apply the urgent preliminary ruling procedure provided for in Article 107 of the Court’s Rules of Procedure. On 20 May 2015, the Court decided not to accede to that request.
26.
By order of 3 July 2015, (
6
) the President of the Court decided to determine the present case pursuant to the expedited procedure provided for in Article 105(1) of the Court’s Rules of Procedure.
27.
Written observations on the questions referred for a preliminary ruling were submitted by the Spanish Government and the European Commission. The Spanish and Czech Governments and the Commission presented oral argument at the hearing of 9 September 2015.
III – Assessment
28.
By its first and second questions, which should be considered together, the referring court seeks guidance from the Court on the material scope of Regulation No 2201/2003. I shall therefore focus below on the applicability of that regulation to the present case. I shall then turn to examination of the third question referred for a preliminary ruling, which concerns one of the conditions for the prorogation of jurisdiction, in matters of parental responsibility, of the courts of the Member State with which the child has a substantial connection, as laid down in Article 12(3) of Regulation No 2201/2003.
A – The first and second questions
29.
By its first question, the referring court asks the Court whether giving authorisation for the child to travel outside national territory and requesting a passport for that purpose is covered by the concept of parental responsibility within the meaning of Article1(1)(b) and Article 2(7) of Regulation No 2201/2003. By its second question, the referring court asks the Court, in essence, whether an action by which one of the parents requests that the court remedy the failure of the other parent to give approval for the child to travel and for a passport application is covered by the concept of civil matters within the meaning of Article 1(1) of Regulation No 2201/2003, even where the court’s decision may be taken into account by the national authorities for the purpose of issuing the child with a passport.
30.
Article 1(1) of Regulation No 2201/2003 provides that the regulation is to ‘apply, whatever the nature of the court or tribunal seised, in civil matters relating to: ... (b) the attribution, exercise, delegation, restriction or termination of parental responsibility’. In order to follow the letter of that provision, which defines the scope of the regulation by reference, first, to civil matters and, secondly, to parental responsibility, I shall examine below whether authorising the child to travel outside national territory and requesting a passport for that purpose constitute ‘civil matters’ within the meaning of Article 1(1) of Regulation No 2201/2003, before ascertaining that they are covered by the concept of ‘parental responsibility’ as defined in Article 2(7) of that regulation.
1. The concept of ‘civil matters’ within the meaning of Article 1(1) of Regulation No 2201/2003
31.
Regulation No 2201/2003 does not define civil matters, either in Articles 1 and 2 concerning, respectively, the scope of the regulation and the definition of the terms used, or in the preamble thereto. It merely lists, in Article 1(3), the matters to which it does not apply, namely the establishment or contesting of a parent-child relationship, decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption, the name and forenames of the child, emancipation, maintenance obligations, trusts or succession, and measures taken as a result of criminal offences committed by children. (
7
)
32.
Article 1(1) of Regulation No 2201/2003 draws on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed on 27 September 1968 (
8
) (‘the 1968 Brussels Convention’). The first paragraph of Article 1 of the 1968 Brussels Convention provides that it is to ‘apply in civil and commercial matters whatever the nature of the court or tribunal’. Like Regulation No 2201/2003, the 1968 Brussels Convention does not define civil and commercial matters, or does so only negatively, (
9
) by means of the exclusions listed in the second paragraph of Article 1 thereof. (
10
)
33.
There is no doubt that, as the Court held in its judgment in C, (
11
) the concept of civil matters within the meaning of Article 1(1) of Regulation No 2201/2003 must be interpreted autonomously, if only to ensure the uniform application of that regulation and, as the Czech Government stated at the hearing, to ensure equality for all children, (
12
) whether or not they are residing in the Member State of which they are nationals.
34.
In the present case, the action brought before the referring court seeks to obtain from that court a remedy for the father’s failure to give approval for the child to travel and for a passport request. However, the issuing of a passport is an administrative act. It is therefore necessary to examine whether the dispute in the main proceedings is covered by the concept of civil matters, in which case Regulation No 2201/2003 is applicable, or whether it is to be excluded from the scope of that regulation on the ground that it is an administrative matter.
35.
In my view, the dispute in the main proceedings is a civil matter within the meaning of Article 1(1) of Regulation No 2201/2003, for the reasons I shall set out below.
36.
First, I would point out that this dispute is not related to any of the matters which Article 1(3) of Regulation No 2201/2003 excludes from its scope. (
13
)
37.
Secondly, I note that, according to recital 10 of Regulation No 2201/2003, that regulation is not intended to apply ‘to public measures of a general nature in matters of education or health’. (
14
) I infer from this that it is intended to apply to public measures other than those of a general nature relating to education or health. (
15
)
38.
Thirdly, I would emphasise that Article 1(1) of Regulation No 44/2001 provides that ‘it shall not extend, in particular, to revenue, customs or administrative matters’. (
16
) That reservation was introduced in 1978, at the time of the accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland to the 1968 Brussels Convention, (
17
) in order to take account of the fact that in the United Kingdom and Ireland the distinction commonly made in the legal systems of the original Member States between private law and public law was hardly known, and that it was therefore necessary to clarify what matters were not regarded as civil. (
18
) Unlike in Regulation No 44/2001, Article 1 of Regulation No 2201/2003 does not provide that it is not to apply to administrative matters. The adoption of Regulation No 2201/2003, on 27 November 2003, came after the adoption of Regulation No 44/2001, on 22 December 2000, and a long time after the introduction, in 1978, of the reservation concerning administrative matters in the 1968 Brussels Convention. I consider, therefore, that, if the legislature had intended to exclude administrative matters from the scope of Regulation No 2201/2003, it would have expressly so provided.
39.
Fourthly, even assuming that Article 1(1) of Regulation No 2201/2003 were to be interpreted as excluding administrative matters from its scope, such an exclusion cannot, in my view, apply to all administrative matters, but concerns only acts carried out in the exercise of public powers.
40.
As regards Regulation No 44/2001, (
19
) the Court held that, in order to determine whether a dispute is a civil matter within the meaning of Regulation No 44/2001, the nature of the legal relationships between the parties to the dispute and the subject matter of the dispute must be examined. It inferred from this that, although certain actions between a public authority and a person governed by private law may be covered by that concept, it is otherwise where the public authority is acting in the exercise of its public powers . (
20
)
41.
In my view, the concept of civil matters within the meaning of Regulation No 2201/2003 cannot be interpreted more strictly than the concept of civil matters within the meaning of Regulation No 44/2001, in so far as Regulation No 2201/2003, unlike Regulation No 44/2001, does not expressly provide for the exclusion of administrative matters. Therefore, assuming that Article 1(1) of Regulation No 2201/2003 is to be interpreted as meaning that that regulation is not applicable to administrative matters, in order for a dispute to be excluded from the concept of civil matters, it is not sufficient for that dispute to be between a public authority and a person governed by private law: the public authority must also have exercised its public powers.
42.
As stated above, in order to determine whether a dispute is a civil matter within the meaning of Regulation No 44/2001, two criteria must be taken into account: first, the nature of the legal relationship between the parties to the dispute (if that relationship is governed entirely by private law, the dispute is a civil matter) and, secondly, the subject matter of the dispute (if the subject matter of the dispute is not an exercise of public powers, it is a civil matter).
43.
First, the Court assesses the nature of the legal relationship between the parties in the light of the status of the parties, public authorities or private persons and of the basis and the detailed rules governing the bringing of the action. (
21
)
44.
Thus, a dispute where the two parties are private individuals is necessarily a relationship governed purely by private law. In the judgment in Henkel, the Court held that an action by which a consumer organisation seeks to obtain an injunction prohibiting a trader from using unfair terms is a civil matter. It pointed out, in particular, that ‘a consumer protection organisation such as [the one in question is] a private body’. (
22
) Similarly, in the judgment in Frahuil, the Court held that an action by which an undertaking which had stood surety vis-à-vis the customs authorities for payment of customs duties by a forwarding agent sought reimbursement of the amounts paid to the importer was a civil matter: the dispute was between two persons governed by private law. (
23
) In the judgment in flyLAL-Lithuanian Airlines, the Court concluded that an action brought by a Lithuanian airline against the entity running a Latvian airport and a Latvian airline seeking compensation for damage resulting from an alleged infringement of competition law was a civil matter. It pointed out, inter alia, that, although the Latvian State was a majority or sole shareholder of the defendants, it was not a party to the dispute, and that the applicant was complaining about the excessively high amount of charges paid for the use of airport installations, that is to say, an act carried out by the defendants as economic operators which did not involve an exercise of public authority powers. (
24
)
45.
If one of the parties to the dispute is a public authority, this alone does not preclude the application to it of Regulation No 44/2001: it precludes it only if the public authority exercises public authority powers within the context of the dispute. Thus, in the judgment in Sunico and Others, the Court held that the action to recover a tax claim brought by the British tax authorities was a civil matter because, although the applicant was a public authority, it was acting solely on the basis of United Kingdom law on civil liability. (
25
) Similarly, in the judgment in Sapir and Others, the Court held that the action seeking compensation for victims of the Nazi regime brought against the Land Berlin was a civil matter. The action was directed against the Land Berlin as the owner of property subject to restitutionary rights and it had the same obligation to pay compensation as a private owner. (
26
)
46.
As regards, secondly, the subject matter of the dispute, the dispute is not a civil matter if it concerns the exercise of public powers, that is to say, if the claim arises directly from an act carried out in the exercise of public powers. (
27
)
47.
Thus, in the judgment in Lechouritou and Others, the Court held that an action by which Greek nationals claimed compensation from the German State for the loss or damage caused by the massacre of civilians by soldiers of the German armed forces in 1943 concerns the exercise of public powers. (
28
) On the other hand, in the judgment in Apostolides, it held that an action by which a private individual, who was the owner of land in Cyprus which he had to abandon when the Turkish army invaded the island in 1974, claims that the individual who acquired the land should immediately deliver to him free possession of that land did not concern an exercise of public powers. (
29
) Although the Court adopted contrasting approaches in the two judgments, this is, in my view, because, in the judgment in Lechouritou and Others, the claim sought compensation for the damage directly caused by an exercise of public powers (the massacre of civilians), whereas, in the judgment in Apostilides, the claim sought possession of land acquired as a result of an exercise of public powers (the invasion by the armed forces), that is to say, the link between the application and the exercise of public powers was only indirect.
48.
The case-law on the concept of civil matters within the meaning of Article 1(1) of Regulation No 44/2001 can, as we have seen, (
30
) be applied to the concept of civil matters within the meaning of Article 1(1) of Regulation No 2201/2003.
49.
In the present case, the dispute before the referring court is between two private individuals, the parents of the child. The mother obviously cannot exercise against the father any rights or powers derogating from the generally applicable rules of law. The legal relationship between the parties is therefore purely governed by private law.
50.
I would also point out that the action brought by the mother seeks to obtain from the court a remedy for the father’s failure to give consent for a passport to be issued to the child. The dispute does not concern an exercise of public powers, since the court is not being requested to issue the passport but to remedy the father’s failure to give consent. It concerns a disagreement between the parents, as the mother wants the child to visit her family in Bulgaria and the father is opposed to it or, at least, is not taking the necessary steps for that purpose. The subject matter of the dispute is therefore strictly governed by private law.
2. The concept of ‘parental responsibility’ within the meaning of Article 2(7) of Regulation No 2201/2003
51.
Article 1(2)(a) of Regulation No 2201/2003 provides that civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility to which that regulation is applicable may, in particular, deal with rights of access. Rights of access are defined in Article 2(10) of Regulation No 2201/2003 as including, in particular, the right to take a child to a place other than his or her habitual residence for a limited period of time.
52.
Taking the child on holiday to visit her family, including in another Member State (as Article 2(10) speaks only of ‘a place other than his or her habitual residence’) and applying for a passport for that purpose seem to me to fit the definition of rights of access perfectly.
53.
The answer to the referring court must therefore be that an action by which one of the parents requests that the court remedy the failure of the other parent to give approval for the child to travel and for a passport application is a civil matter relating to parental responsibility within the meaning of Article 1(1)(b) and Article 2(7) and (10) of Regulation No 2201/2003.
B – The third question
54.
By its third question, the referring court asks, in essence, whether a party who does not enter an appearance can be regarded as having accepted the jurisdiction of the court within the meaning of Article 12(1)(b) of Regulation No 2201/2003 where that party is represented by a court-appointed representative and that representative does not challenge the court’s jurisdiction.
55.
Before examining the third question, I should like to clarify a number of points concerning the allocation of jurisdiction in matters of parental responsibility provided for in Regulation No 2201/2003.
56.
Article 8(1) of Regulation No 2201/2003 confers jurisdiction, in matters of parental responsibility, on the courts of the Member State in which the child is habitually resident at the time the court is seised. However, Article 8(2) of that regulation provides that ‘paragraph 1 shall apply subject’, in particular, to Article 12. Article 12(1) provides that the courts of the Member State exercising jurisdiction by virtue of Article 3 (
31
) on an application for divorce, legal separation or marriage annulment (
32
) are to have jurisdiction in matters of parental responsibility, whereas Article 12(3) provides that the courts of the Member State with which the child has a substantial connection, in particular by virtue of the fact that the child is a national of that Member State, are to have jurisdiction in relation to parental responsibility.
57.
The jurisdiction of the courts of the Member State exercising jurisdiction on an application for divorce or the jurisdiction of the courts of the Member State with which the child has a substantial connection, provided for in Article 12(1) and (3) of Regulation No 2201/2003, are therefore jurisdictions concurrent with the jurisdiction of the courts of the Member State where the child is habitually resident. (
33
)
58.
I consider that, in order to provide the national court with a useful answer, the third question must be reformulated (
34
) so that it can be examined in the light of Article 12(3) of Regulation No 2201/2003 and not Article 12(1). I shall explain below why such a reformulation is necessary before examining the question itself, namely whether a party who fails to appear but is represented by a court-appointed representative who does not challenge the court’s jurisdiction can be regarded as having accepted the jurisdiction of that court within the meaning, therefore, of Article 12(3) of Regulation No 2201/2003.
1. The applicability of Article 12(3) of Regulation No 2201/2003
59.
Article 12(1) of Regulation No 2201/2003 cannot, in my view, be applied to the present case. That provision provides, as we have seen, that the court of the Member State having jurisdiction pursuant to Article 3 on an application for divorce is to have jurisdiction in matters of parental responsibility. However, the request for a preliminary ruling simply states that Ms Gogova and Mr Iliev lived together, which suggests that they were never married. Therefore, that provision is not applicable to the dispute in the main proceedings.
60.
On the other hand, the jurisdiction of the Bulgarian courts must be examined in the light of Article 12(3) of Regulation No 2201/2003, which, moreover, lays down the same condition as Article 12(1), namely, acceptance of the jurisdiction of the court seised. That provision provides that the courts of a Member State are to have ‘jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1’ where, first, the child has a substantial connection with that Member State, ‘in particular by virtue of the fact ... that the child is a national of that Member State’, and, secondly, the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the dispute and is in the best interests of the child. (
35
) It is clear from the documents in the file that the child has Bulgarian nationality: the first condition for the prorogation of jurisdiction provided for in Article 12(3) of Regulation No 2201/2003 has been fulfilled.
61.
I note that, in the judgment in L, the Court held that the prorogation of jurisdiction provided for in Article 12(3) of Regulation No 2201/2003 in matters of parental responsibility may be applied without it being necessary for those proceedings to be related to other proceedings already pending before the court in whose favour the prorogation of jurisdiction is sought. (
36
) It is therefore of little importance that no application for divorce is pending before the Bulgarian courts: such a circumstance does not preclude the applicability of Article 12(3) of Regulation No 2201/2003. (
37
)
62.
The third question therefore retains its relevance. Article 12(1) and (3) of Regulation No 2201/2003 make the prorogation of jurisdiction subject to the same condition: that that jurisdiction has been accepted expressly or otherwise in an unequivocal manner by ‘the spouses and by the holders of parental authority’ (paragraph 1) or by ‘all the parties to the proceedings’ (paragraph 3). It is sufficient, in order to provide the national court with a useful answer, to examine in the light of paragraph 3, and not paragraph 1, whether a party who fails to appear and is represented by a court-appointed representative who does not challenge that court’s jurisdiction must be regarded as having accepted its jurisdiction.
2. The express or unequivocal acceptance of jurisdiction
63.
A defendant who fails to appear cannot, in my view, be regarded as having accepted the jurisdiction of the court seised for the purposes of Article 12(3)(b) of Regulation No 2201/2003 solely on the ground that that court, which did not succeed in serving him with the document which instituted the proceedings, appointed of its own motion a representative to represent him and that the representative submitted a defence on the merits of the case without challenging the court’s jurisdiction.
a) The parties’ freedom of choice, the basis for the prorogation of jurisdiction
64.
I note that the intention of the EU legislature was to enable the parties to choose the Member State whose courts would have jurisdiction to rule on parental responsibility. Article 12(3) of Regulation No 2201/2003 enables them to derogate from the jurisdiction of the courts of the Member State in which the child is habitually resident in favour of the courts of the Member State with which the child has a substantial connection. The intention of the EU legislature was therefore to lay emphasis on the autonomy of the parties by offering them a choice, admittedly subject to the condition that the child has a substantial connection with the Member State whose courts are chosen, (
38
) but still a choice. This is clear from the explanatory memorandum for the proposal for a regulation submitted by the Commission, which states that Article 12(3) of Regulation No 2201/2003 ‘aims at promoting agreement, even if only on the court that should hear the case, also giving some flexibility to the holders of parental responsibility’. (
39
)
65.
As the jurisdiction of the court seised is based on the will of the parties, it is important to ensure that both parties have indeed accepted its jurisdiction. (
40
) The legislature’s intention, that is to lay emphasis on the autonomy of the parties, supports a strict interpretation of the ‘express … or otherwise … unequivocal’ acceptance of the jurisdiction of the court seised. (
41
)
66.
I would point out that Article 12(3)(b) of Regulation No 2201/2003 provides that the jurisdiction of the courts of the Member State chosen by the parties must be ‘in the best interests of the child’. I consider that that statement must be understood, in view of the key role of the best interests of the child in the jurisdictional system established by Regulation No 2201/2003, (
42
) as an actual obligation, on the part of the court seised, to ensure that the parties have not exercised their autonomy against the best interests of the child. (
43
) Such an obligation confirms the need for a strict interpretation of acceptance of the jurisdiction of the courts seised on the basis of Article 12(3).
67.
It seems to me that to take the view that the respondent has accepted the jurisdiction of the Bulgarian courts when the document which instituted the proceedings could not be served on him, on the ground that the representative appointed by the court did not challenge its jurisdiction, does not meet the need for a strict interpretation of the condition for acceptance laid down in Article 12(3)(b) of Regulation No 2201/2003.
68.
I am surprised that the Bulgarian court resorted to appointing a representative to represent the respondent when it is clear from the order for reference that the father sees his daughter every two to three weeks. I note that, according to Article 47(4) of the GPK, (
44
) where the court seised establishes that the defendant does not reside at the address stated, it ‘shall instruct the applicant to provide information’ on that matter. It seems at least strange that the mother entrusts the child to her father regularly but does not know his address. I note that Article 18(1) of Regulation No 2201/2003 provides that the court must stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or that ‘all necessary steps have been taken to this end’. (
45
)
69.
I find it barely conceivable that a respondent can be regarded as having accepted the jurisdiction of the courts of a Member State if he is unaware even of the existence of the proceedings brought against him. (
46
) I also doubt that a representative appointed by the court seised can validly accept its jurisdiction, as he has no contact with the respondent and does not therefore have the information which would enable him to determine whether the court seised has jurisdiction. (
47
)
b) A fair balance between the rights of the defence and the right of the applicant to an effective legal remedy
70.
I note that, ruling on the interpretation of the first sentence of Article 24 of Regulation No 44/2001, which provides that, ‘apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction’, the Court held, in the recent judgment in A, that the appearance entered by a representative appointed, in the absence of the defendant, by an Austrian court did not amount to an appearance being entered by the defendant for the purposes of Article 24 of that regulation, that is to say, did not constitute a basis for the jurisdiction of the court seised. (
48
)
71.
Article 12(3) of Regulation No 2201/2003 should, in my view, be interpreted in the same way as the first sentence of Article 24 of Regulation No 44/2001.
72.
First, the first sentence of Article 24 of Regulation No 44/2001 provides, like Article 12(3) of Regulation No 2201/2003, for jurisdiction based on a deliberate choice made by the parties. (
49
)
73.
Secondly, in the judgment in A, the Court struck a balance between the rights of the defence and the applicant’s right to an effective legal remedy, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. (
50
) Although it stated that the defendant’s place of domicile was not known, making it impossible for the applicants to determine the court with jurisdiction and preventing them from exercising their right to an effective remedy, it continued with its line of reasoning in order to emphasise that, if the appearance entered by the representative were to be regarded as amounting to an appearance being entered by the defendant for the purposes of the first sentence of Article 24 of Regulation No 44/2001, the defendant would no longer be regarded as being in default of appearance. He would no longer be regarded as being in default of appearance for the purposes of Article 24 of that regulation, but also within the meaning of Article 34(2) thereof, which provides that a judgment is not to be recognised if the defendant was not served with the document which instituted the proceedings. Therefore, the defendant could not rely on Article 34(2) to oppose recognition of the judgment. The Court concluded that such an interpretation of Article 24 of Regulation No 44/2001 could not be regarded as striking a fair balance between the applicant’s right to an effective legal remedy and the rights of the defence. (
51
)
74.
However, in the present case, I note that the jurisdiction of the courts of the Member State with which the child has a substantial connection, provided for in Article 12(3) of Regulation No 2201/2003, is a jurisdiction concurrent with that of the courts of the Member State in which the child is habitually resident, provided for in Article 8(1) of that regulation. Therefore, in the present case, if the Bulgarian courts considered that they did not have jurisdiction on the ground that the father did not accept their jurisdiction, the mother could bring the matter before the Italian courts: there would be no denial of justice.
75.
I would also point out that, if the Bulgarian courts considered that they had jurisdiction on the basis of Article 12(3) of Regulation No 2201/2003, the father would be unable to bring an action.
76.
Article 41(1) of Regulation No 2201/2003 provides that a judgment given in a Member State, if it has been certified in the Member State of origin, is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Article 41(2)(a) makes serving the respondent with the document which instituted the proceedings a condition for the issue of the certificate. However, if the respondent is regarded as having accepted the jurisdiction of the Bulgarian courts for the purposes of Article 12(3)(b) of Regulation No 2201/2003, this means that he is not regarded as defaulting: he cannot therefore be regarded as defaulting within the meaning of Article 41(2)(a) of that regulation. Consequently, if the Bulgarian courts were to be regarded as having jurisdiction on the basis of Article 12(3), they would issue the certificate enabling the judgment to be recognised and enforced in Italy.
77.
If that were the case, the father could not oppose the enforcement of the judgment of the Bulgarian courts. First, Article 43(2) of Regulation No 2201/2003 provides that no appeal is to lie against the issuing of a certificate. Secondly, Article 41(1) of that regulation provides that there is to be no possibility of opposing the recognition of a judgment certified in the Member State of origin. (
52
)
78.
Therefore, if the father were to be regarded as having accepted the jurisdiction of the Bulgarian courts for the purposes of Article 12(3)(b) of Regulation No 2201/2003, the impairment of the rights of the defence would be, in my view, disproportionate.
79.
No argument contrary to that finding can be based on the judgment in Hypoteční banka, in which the Court held that Regulation No 44/2001 does not preclude a national provision which enables proceedings to be brought against a defendant whose domicile is unknown through the appointment of a guardian by the court seised. (
53
) As the Court expressly points out in the judgment in A, although, in the judgment in Hypoteční banka, the defendant could oppose recognition of the judgment on the basis of Article 34(2) of that regulation, in the judgment in A, there is no such possibility. In fact, the possibility of relying on Article 34(2) of that regulation ‘presupposes … that the defendant failed to enter an appearance and that the procedural steps taken by the guardian ad litem or the court-appointed representative in absentia do not amount to an appearance having been entered by the defendant for the purposes of ... Regulation [No 44/2001]’. (
54
) However, if the court seised has jurisdiction on the basis of Article 24 of that regulation, the defendant is not regarded as being in default of appearance.
IV – Conclusion
80.
In the light of all the foregoing considerations, I propose that the Court give the following answers to the questions referred by the Varhoven kasatsionen sad:
(1)
An action by which one of the parents requests that the court remedy the failure of the other parent to give approval for the child to travel abroad and for a passport application for that purpose is a civil matter relating to the exercise of parental responsibility within the meaning of Article 1(1)(b) and Article 2(7) and (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.
(2)
A defendant who fails to appear cannot be regarded as having unequivocally accepted the jurisdiction of the court seised for the purposes of Article 12(3)(b) of Regulation No 2201/2003 solely on the ground that that court, which did not succeed in serving him with the document which instituted the proceedings, appointed of its own motion a representative and that the representative submitted a defence on the merits of the case without challenging the court’s jurisdiction.
(
1
)   Original language: French.
(
2
)   OJ 2003 L 338, p. 1.
(
3
)   OJ 2001 L 12, p. 1.
(
4
)   The Rayonen sad is the court of first instance.
(
5
)   The Okrazhen sad is a regional court.
(
6
)   Order in Ivanova Gogova (C‑215/15, EU:C:2015:466).
(
7
)   I note, in that regard, that the definition of the material scope by reference to civil matters was introduced, in respect of the rules on parental responsibility, by Regulation No 2201/2003. The concept of civil matters is not contained in 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), repealed by Regulation No 2201/2003. Nor is it contained in the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters of 28 May 1998 (OJ 1998 C 221, p. 2, ‘the Brussels II Convention’), replaced between the Member States by Regulation No 1347/2000. Both Regulation No 1347/2000 and the Brussels II Convention provide that they are applicable to ‘civil proceedings’ relating, inter alia, to parental responsibility and state that non-judicial proceedings officially recognised in a Member State are to be regarded as equivalent to civil proceedings (see Article 1(1) and (2) and recital 9 of Regulation No 1347/2000 and Article 1 of the Brussels II Convention).
(
8
)   OJ 1972 L 299, p. 32.
(
9
)   In that regard, the Report by Mr P. Jenard on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels on 27 September 1968 (OJ 1979 C 59, p. 1, ‘the Jenard Report’) states that the committee of experts who drew up the convention ‘did not specify what is meant by “civil and commercial matters”, nor did it point to a solution of the problem of classification by determining the law according to which that expression should be interpreted. In this respect it followed the practice of existing conventions’ (p. 9).
(
10
)   The second paragraph of Article 1 of the 1968 Brussels Convention excludes from its scope, first, the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession, secondly, bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings, thirdly, social security, fourthly, arbitration.
(
11
)   C‑435/06, EU:C:2007:714, paragraph 46.
(
12
)   See recital 5 of Regulation No 2201/2003.
(
13
)   See point 3 of this View.
(
14
)   I note that recital 10 of Regulation No 2201/2003 is identical to Article 4(h) of the Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children concluded on 19 October 1996 (OJ 2008 L 151, p. 39, ‘the 1996 Hague Convention’). Article 4(h) of the 1996 Hague Convention states that it does not apply to ‘public measures of a general nature in matters of education or health’. In that regard, the Explanatory Report by Paul Lagarde on the 1996 Hague Convention (available on the website of the Hague Conference on Private International Law at the following address: http://www.hcch.net/index_en.php) states that this provision refers to measures such as those ‘which require school attendance or vaccination’.
(
15
)   See judgments in C (C‑435/06, EU:C:2007:714, paragraph 52) and A (C‑523/07, EU:C:2009:225, paragraph 28).
(
16
)   Emphasis added. I would point out that Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ 2012 L 351, p. 1), which repeals Regulation No 44/2001, provides, in the second sentence of Article 1(1), that it ‘shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’. Regulation No 1215/2012 reproduces here case-law to which I shall return below.
(
17
)   Convention on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed on 9 October 1978 (OJ 1978 L 304, p. 1). See Article 3 of that convention.
(
18
)   In that regard, the Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed on 9 October 1978, prepared by Professor P. Schlosser (OJ 1979 C 59, p. 71), states that ‘the distinction between civil and commercial matters on the one hand and matters of public law on the other is well recognised in the legal systems of the original Member States and is, in spite of some important differences, on the whole arrived at on the basis of similar criteria … For that reason the draftsmen of the original text of the 1968 Convention, and the Jenard report, did not include a definition of civil and commercial matters … But … in the United Kingdom and Ireland the distinction commonly made in the original EEC States between private law and public law is hardly known. This meant that the problems of adjustment could not be solved simply by a reference to these classifications. In view of the judgment [in LTU, 29/76, EU:C:1976:137, paragraph 3] which was delivered during the final stages of the discussions and which decided in favour of an interpretation which made no reference to the “applicable” national law, the Working Party restricted itself to declaring, in Article 1, paragraph 1, that revenue, customs or administrative matters are not civil or commercial matters within the meaning of the Convention’ (paragraph 23).
(
19
)   The Court has rarely had to adjudicate upon the concept of civil matters within the meaning of Article 1(1) of Regulation No 2201/2003. In the judgments in C (C‑435/06, EU:C:2007:714, paragraph 51), A (C‑523/07, EU:C:2009:225, paragraph 27) and C. (C‑92/12 PPU, EU:C:2012:255, paragraph 60), it held that the concept of civil matters within the meaning of Article 1(1) of Regulation No 2201/2003 must be interpreted as capable of extending to measures which, from the point of view of the legal system of a Member State, fall under public law. However, all three of those judgments concerned a decision to take a child into care, whether in the form of a decision by the social welfare services of a municipality to place a child in a foster family (judgments in C, C‑435/06, EU:C:2007:714, and A, C‑523/07, EU:C:2009:225) or a decision by a court to place a child in a secure institution providing therapeutic and educational care (judgment in C., C‑92/12 PPU, EU:C:2012:255). However, Article 1(2)(d) of Regulation No 2201/2003 expressly provides that that regulation applies to the ‘placement of the child in a foster family or in institutional care’. It cannot, therefore, be inferred from those three judgments that Regulation No 2201/2003 applies to all administrative measures, whatever they may be. It is therefore useful, in my view, to examine the case-law on the concept of civil matters within the meaning of Regulation No 44/2001.
(
20
)   Judgments in LTU (29/76, EU:C:1976:137, paragraph 4); Rüffer (814/79, EU:C:1980:291, paragraphs 8 and 14); Rich (C‑190/89, EU:C:1991:319, paragraph 26); Sonntag (C‑172/91, EU:C:1993:144, paragraph 20); Henkel (C‑167/00, EU:C:2002:555, paragraph 26); Baten (C‑271/00, EU:C:2002:656, paragraphs 29 and 30); Préservatrice foncière TIARD (C‑266/01, EU:C:2003:282, paragraphs 21 and 22); Frahuil (C‑265/02, EU:C:2004:77, paragraph 20); Lechouritouand Others (C‑292/05, EU:C:2007:102, paragraphs 30 and 31); Apostolides (C‑420/07, EU:C:2009:271, paragraphs 42 to 44); Realchemie Nederland (C‑406/09, EU:C:2011:668, paragraph 39); Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 32 and 33); Sunico and Others (C‑49/12, EU:C:2013:545, paragraphs 33 and 34); and flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraphs 26 and 30).
(
21
)   Judgments in Baten (C‑271/00, EU:C:2002:656, paragraph 31); Préservatrice foncière TIARD (C‑266/01, EU:C:2003:282, paragraph 23); Frahuil (C‑265/02, EU:C:2004:77, paragraph 20); Sapir and Others (C‑645/11, EU:C:2013:228, paragraph 34); Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 35); and Opinion of Advocate General Kokott in Sunico and Others (C‑49/12, EU:C:2013:231, point 41).
(
22
)   C‑167/00, EU:C:2002:555, paragraph 30.
(
23
)   C‑265/02, EU:C:2004:77, paragraph 21.
(
24
)   C‑302/13, EU:C:2014:2319, paragraphs 28, 29 and 37.
(
25
)   C‑49/12, EU:C:2013:545, paragraphs 37 to 40.
(
26
)   C‑645/11, EU:C:2013:228, paragraphs 35 and 36. See also judgments in Sonntag (C‑172/91, EU:C:1993:144, paragraph 22); Baten (C‑271/00, EU:C:2002:656, paragraphs 31 to 37); and Préservatrice foncière TIARD (C‑266/01, EU:C:2003:282, paragraphs 30 to 36).
(
27
)   See Opinion of Advocate General Kokott in Sunico and Others (C‑49/12, EU:C:2013:231, point 46): ‘only if the claim being enforced stems from the exercise of public powers is it not a civil and commercial matter. However, not every connection with the exercise of public powers is sufficient. Rather, as is clear from the case-law of the Court, the crucial factor is that the claim in question arises from an act in the exercise of public powers’.
(
28
)   C‑292/05, EU:C:2007:102, paragraphs 37 and 38. See, also, judgment in LTU (29/76, EU:C:1976:137, paragraph 4).
(
29
)   C‑420/07, EU:C:2009:271, paragraph 45.
(
30
)   See point 41 of this Opinion.
(
31
)   Article 3 of Regulation No 2201/2003 concerns general jurisdiction in matters relating to divorce, legal separation and marriage annulment.
(
32
)   To simplify matters, reference will be made below to an application for divorce or to divorce proceedings, it being understood that those expressions are to include an application for divorce, legal separation or marriage annulment, or proceedings for divorce, legal separation or marriage annulment.
(
33
)   In that regard, see Gallant, E., ‘Règlement Bruxelles II bis (matières matrimoniales et responsabilité parentale)’, paragraph 138, in Répertoire Dalloz de droit international; Corneloup, S., ‘Les règles de compétence relatives à la responsabilité parentale’, paragraphs 8 and 11, in Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, 2005, and Joubert, N., ‘Autorité parentale — Conflits de juridictions’, paragraph 31, Jurisclasseur Droit international, fascicule 549-20.
(
34
)   Judgment in Abcur (C‑544/13 and C‑545/13, EU:C:2015:481, paragraph 33).
(
35
)   I would point out that the option for the parties of bringing the matter before the courts of the Member State with which the child has a substantial connection did not exist either in Regulation No 1347/2000 or in the 1996 Hague Convention: it was introduced by Regulation No 2201/2003.
(
36
)   C‑656/13, EU:C:2014:2364, paragraph 45.
(
37
)   Before the Court ruled on that point in the judgment in L, cited in the preceding footnote, the question whether the prorogation of jurisdiction provided for in Article 12(3) of Regulation No 2201/2003 is applicable in the absence of proceedings pending before the court in question caused some debate. See, in that regard, Gallant, E., Responsabilité parentale et protection des enfants en droit international privé, Defrénois, 2004, paragraph 226. See also Corneloup, S., ‘Les règles de compétence relatives à la responsabilité parentale’, note 39, in Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, 2005.
(
38
)   See, on that subject, Gallant, E., Responsabilité parentale et protection des enfants en droit international privé, Defrénois, 2004, paragraph 227.
(
39
)   Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation No 1347/2000 and amending Regulation No 44/2001 in matters relating to maintenance, Explanatory Memorandum, (COM(2002) 222 final/2).
(
40
)   Especially since a mechanism based on the will of the parties is rare in private international family law. See, on that subject, Pataut, E., ‘Article 12’, paragraph 45, in European Commentaries on Private International Law — Brussels II Regulation, edited by Magnus, U., and Mankowski, P., Sellier European Law Publishers, 2012.
(
41
)   See, in favour of a strict interpretation, judgment in E. (C‑436/13, EU:C:2014:2246, paragraph 48): ‘since Article 12(3) seeks to allow the holders of parental responsibility, by mutual agreement and subject to certain other conditions, to bring proceedings before a court in relation to matters pertaining to parental responsibility for the assessment of which that court does not, in principle, have jurisdiction, it cannot be assumed that that agreement will continue, in all cases, after those proceedings have been brought to a close or in relation to other matters which may come to light subsequently’.
(
42
)   See recital 12 of Regulation No 2201/2003, which states that ‘the grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity’. See, also, Article 15(1) of Regulation No 2201/2003, which provides for the possibility, for the courts of a Member State with jurisdiction under that regulation, to decline their jurisdiction in favour of a court of a Member State with which the child has a ‘particular connection’, ‘and where this is in the best interests of the child’. See, finally, judgment in L (C‑656/13, EU:C:2014:2364, paragraph 49), and Opinion of Advocate General Bot in A (C‑184/14, EU:C:2015:244, footnote 13).
(
43
)   See judgment in E. (C‑436/13, EU:C:2014:2246, paragraph 47): ‘where a court is seised of proceedings in accordance with Article 12(3) of Regulation No 2201/2003, the best interests of the child can be safeguarded only by a review, in each specific case, of the question whether the prorogation of jurisdiction which is sought is consistent with those best interests’.
(
44
)   See point 12 of this Opinion.
(
45
)   See, by analogy, judgment in G (C‑292/10, EU:C:2012:142, paragraphs 53 to 55).
(
46
)   See, in that regard, judgment in Hendrikman and Feyen (C‑78/95, EU:C:1996:380, paragraph 18): ‘where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person is quite powerless to defend himself’.
(
47
)   See judgment in A (C‑112/13, EU:C:2014:2195), to which I shall return below, in particular paragraph 55 thereof: ‘an absent defendant who is unaware of the action brought against him or of the appointment of a representative to act on his behalf cannot provide that representative with all the information necessary, for the purposes of determining whether the court seised has international jurisdiction, which would enable him effectively to contest that jurisdiction or to accept it in full knowledge of the facts’.
(
48
)   C‑112/13, EU:C:2014:2195, paragraph 61.
(
49
)   Ibid., paragraph 54, where the Court states that ‘the tacit prorogation of jurisdiction by virtue of the first sentence of Article 24 of Regulation No 44/2001 is based on a deliberate choice made by the parties to the dispute regarding jurisdiction’. It is true that the jurisdiction provided for in Article 24 of Regulation No 44/2001 is based on the choice of the parties alone, whereas the jurisdiction provided for in Article 12(3) of Regulation No 2201/2003 is based not only on the choice of the parties, but also on the substantial connection of the child with the Member State whose courts are chosen.
(
50
)   Ibid. (paragraph 58).
(
51
)   Judgment in A (C‑112/13, EU:C:2014:2195, paragraph 60): ‘that remedy on the basis of Article 34(2) of Regulation No 44/2001 presupposes, however ... that the defendant failed to enter an appearance and that the procedural steps taken by the guardian ad litem or the court-appointed representative in absentia do not amount to an appearance having been entered by the defendant for the purposes of that regulation. In the present case, on the other hand, the procedural steps taken by the court-appointed representative under [national law] have the effect that A must be regarded as having entered an appearance before the court seised’. See, also, Opinion of Advocate General Bot in A (C‑112/13, EU:C:2014:207, point 50): ‘the defendant here — namely, A — can no longer challenge the jurisdiction of the Austrian courts if the representative in absentia for the defendant is deemed to have entered an appearance for the purposes of Article 24 of Regulation No 44/2001’.
(
52
)   See judgment in Aguirre Zarraga (C‑491/10 PPU, EU:C:2010:828, paragraph 56).
(
53
)   C‑327/10, EU:C:2011:745, paragraphs 48 to 55.
(
54
)   C‑112/13, EU:C:2014:2195, paragraph 60.