W and V v X.
Date: 2017-02-15
35


According to settled case-law, the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (judgment of 15 September 2011, Accor, C‑310/09, EU:C:2011:581, paragraph 19 and the case-law cited). On the other hand, neither the Statute of the Court of Justice of the European Union nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (judgment of 16 December 2010, Stichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 28 and the case-law cited).
41


In that regard, in proceedings of the kind referred to in Article 267 TFEU, the Court of Justice is indeed empowered to rule only on the interpretation or validity of EU law provisions (judgment of 10 November 2011, X and X BV, C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 29). It is for the referring court to give a ruling in the dispute before it, taking into account the Court’s reply (judgment of 4 February 2010, Genc, C‑14/09, EU:C:2010:57, paragraph 31).
45


In that regard, the fact that a national court has, formally speaking, worded its request for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court of Justice from providing the national court with all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions (see, inter alia, judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43).
50


Regulation No 2201/2003 is based on judicial cooperation and mutual trust (judgment of 9 November 2010, Purrucker, C‑296/10, EU:C:2010:665, paragraph 81), which lead to mutual recognition of judicial decisions, the cornerstone for the creation of a genuine judicial area (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 70).
51


As is apparent from recital 12 of Regulation No 2201/2003, that regulation was drawn up with the objective of meeting the best interests of the child and, to that end, it favours the criterion of proximity. The EU legislature, in effect, considered that the court geographically close to the child’s habitual residence is the court best placed to assess the measures to be taken in the interests of the child (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 91). According to that recital, jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except in certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.
52


Article 8 of Regulation No 2201/2003 gives expression to that objective by establishing a general jurisdiction in favour of the courts of the Member State in which the child is habitually resident.
53


According to Article 8(1), the jurisdiction of a court must be established ‘at the time the court is seised’, that is to say, at the time when the document instituting the proceedings is lodged with the court, in accordance with Article 16 of that regulation (see, to that effect, judgment of 1 October 2014, E., C‑436/13, EU:C:2014:2246, paragraph 38).
54


Furthermore, as the Advocate General noted at point 45 of his Opinion, referring to paragraph 40 of the judgment of 1 October 2014, E. (C‑436/13, EU:C:2014:2246), that jurisdiction must be determined and established in each specific case, where a court is seised of proceedings, which implies that it does not continue after proceedings have been brought to a close.
56


Furthermore, Regulation No 2201/2003 lays down specific rules applicable in cases of child abduction or wrongful retention of a child (Articles 10 and 11), where the habitual residence of the child, present in a Member State, cannot be established and where jurisdiction cannot be determined on the basis of Article 12 of that regulation (Article 13), where no court of a Member State has jurisdiction pursuant to Articles 8 to 13 (Article 14) and, by way of exception and in certain circumstances, where the court having jurisdiction transfers the case to the court of another Member State which it considers better placed to hear the case (Article 15).
60


In its judgment of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraph 46), confirmed by settled case-law, (see, inter alia, judgment of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 50), the Court held that the meaning and scope of the concept of ‘habitual residence’ must be determined in the light of the best interests of the child and, in particular, of the criterion of proximity. That concept corresponds to the place that reflects some degree of integration of the child in a social and family environment. That place must be established by the national court, taking account of the circumstances of fact specific to each individual case. The conditions and reasons for the child’s stay on the territory of a Member State and the child’s nationality are of particular relevance. In addition to the physical presence of the child in a Member State, which must be taken into consideration, other factors must also make it clear that that presence is not in any way temporary or intermittent (see, to that effect, judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 47 to 49).
61


Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.