Hampshire County Council v C.E. and N.E.
Date: 2018-09-19
47


In the first place, it must be stated that, although that regulation aims, as is apparent from its preamble, to create a judicial area based on the principle of mutual recognition of judicial decisions by setting out rules on jurisdiction, recognition and enforcement of judgments in matters of parental responsibility, whereas the object of the 1980 Hague Convention is, according to Article 1(a) thereof, to secure the prompt return of children wrongfully removed to or retained in any Contracting State, there is a close link between the two instruments which, in essence, have the common objective of deterring child abductions between States and, in cases of abduction, obtaining the child’s prompt return to the State of the child’s habitual residence (see, to that effect, judgment of 11 July 2008, Rinau, C‑195/08 PPU, EU:C:2008:406, paragraphs 48 and 52).
52


That interpretation is borne out by Article 60 of Regulation No 2201/2003, from which it is apparent that that regulation is to take precedence over the 1980 Hague Convention (judgment of 11 July 2008, Rinau, C‑195/08 PPU, EU:C:2008:406, paragraph 54).
55


It is clear from Article 1(1)(b) of Regulation No 2201/2003 that that regulation is to apply, whatever the nature of the court or tribunal, in civil matters relating, inter alia, to the attribution, exercise, delegation and restriction or termination of parental responsibility. In this connection, the expression ‘civil matters’ must not be understood restrictively but as an autonomous concept of EU law, covering in particular all applications, measures or decisions in matters of ‘parental responsibility’ within the meaning of that regulation, in accordance with the objective stated in recital 5 in its preamble (judgment of 21 October 2015, Gogova, C‑215/15, EU:C:2015:710, paragraph 26).
57


The concept of ‘parental responsibility’ is given a broad definition in Article 2(7) of Regulation No 2201/2003, in that it includes 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 (judgments of 27 November 2007, C, C‑435/06, EU:C:2007:714, paragraph 49, and of 26 April 2012, Health Service Executive, C‑92/12 PPU, EU:C:2012:255, paragraph 59).
65


The Court has ruled that, in order to ensure that the requirement under Article 31 of Regulation No 2201/2003 that there be no delay cannot be undermined by the suspensive effect of an appeal brought against a decision on a declaration of enforceability, a placement order is to become enforceable at the point in time when the court of the requested Member State declares, in accordance with Article 31, that that order is enforceable (judgment of 26 April 2012, Health Service Executive, C‑92/12 PPU, EU:C:2012:255, paragraph 125). The Court thus ruled that, in order not to deprive Regulation No 2201/2003 of its effectiveness, the decision of the court of the requested Member State on an application for a declaration of enforceability must be taken with particular expedition, and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect (judgment of 26 April 2012, Health Service Executive, C‑92/12 PPU, EU:C:2012:255, paragraph 129).
69


It must be noted in that regard that the requirement that the decision authorising enforcement be served has a dual function: on the one hand, it serves to protect the rights of the party against whom enforcement is sought and, on the other, it allows, in terms of evidence, the strict and mandatory time limit for appealing provided for in Article 33 of Regulation No 2201/2003 to be calculated precisely (see, by analogy, judgment of 16 February 2006, Verdoliva, C‑3/05, EU:C:2006:113, paragraph 34).
70


That requirement of service, with the associated transmission of information about an appeal, ensures that the party against whom enforcement is sought has a right to an effective remedy. Thus, in order to justify the conclusion that it was possible for the party concerned to commence proceedings to challenge a decision authorising enforcement, as provided for in Article 33 of Regulation No 2201/2003, that party must have been aware of the contents of that decision, which presupposes that it was served on that party (see, by analogy, judgment of 14 December 2006, ASML, C‑283/05, EU:C:2006:787, paragraph 40).
77


In that regard, it should be borne in mind that, according to settled case-law, in general, limitation periods fulfil the function of ensuring legal certainty (judgment of 7 July 2016, Lebek, C‑70/15, EU:C:2016:524, paragraph 55 and the case-law cited). In addition, it is also consistent with a child’s best interests for decisions concerning that child to be open to challenge only for a limited period.
84


It must be recalled that Article 20 of Regulation No 2201/2003 enables the courts referred to therein to grant provisional, including protective, measures, provided that those courts do not base their jurisdiction, in relation to parental responsibility, on one of the articles in Section 2 of Chapter II of the regulation (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 63).
85


The authority of those courts to adopt provisional, including protective, measures is subject to three cumulative conditions, namely:





–


the measures concerned must be urgent;








–


they must be taken in respect of persons or assets in the Member State where those courts are situated; and








–


they must be provisional (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 77 and the case-law cited).
86


It follows that any judgment in which it is not clear that it has been adopted by a court which has or claims to have substantive jurisdiction does not necessarily fall within the scope of Article 20 of Regulation No 2201/2003, but falls within the scope of that provision solely where it satisfies the conditions laid down in Article 20 (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 78).
90


The Court held in those judgments that an anti-suit injunction, that is to say, an injunction intended to prohibit a person from commencing or continuing proceedings before the courts of another Member State, was incompatible with the Convention concluded on 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), and also 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 (OJ 2001 L 12, p. 1), since such an injunction does not observe the principle that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it. Such an interference with the jurisdiction of a court of another Member State is also incompatible with the system of mutual trust which forms the basis for the establishment of a mandatory system of jurisdiction which all courts falling within the scope of those legal instruments are required to respect (judgments of 27 April 2004, Turner, C‑159/02, EU:C:2004:228, paragraphs 24 and 25; of 10 February 2009, Allianz and Generali Assicurazioni Generali, C‑185/07, EU:C:2009:69, paragraphs 29 and 30; and of 13 May 2015, Gazprom, C‑536/13, EU:C:2015:316, paragraphs 33 and 34).