Vasilka Ivanova Gogova v Ilia Dimitrov Iliev.
Date: 2015-10-21
26. As regards the material scope of Regulation No 2201/2003, it is apparent from Article 1(1)(b) of the regulation that it applies, whatever the nature of the court or tribunal, in civil matters relating inter alia to the attribution, exercise, delegation, 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 (see, to that effect, judgment in C , C‑435/06, EU:C:2007:714, paragraphs 46 to 51).
27. 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 in C , C‑435/06, EU:C:2007:714, paragraph 49, and C , C‑92/12 PPU, EU:C:2012:255, paragraph 59). Moreover, while Article 1(2) of that regulation contains a list of matters covered by the regulation as ‘parental responsibility’, the list is not exhaustive but is only to be used as a guide, as is shown by the use of the words ‘in particular’ (judgments in C , C‑435/06, EU:C:2007:714, paragraph 30, and C , C‑92/12 PPU, EU:C:2012:255, paragraph 63).
28. To determine whether an application falls within the scope of Regulation No 2201/2003, the focus must be on the object of the application (see, by analogy, relating to the ‘status or legal capacity of natural persons’ within the meaning of Article 1(2) of 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), judgment in Schneider , C‑386/12, EU:C:2013:633, paragraphs 29 and 30, and, relating to the concept of ‘social security’ within the meaning of that provision, judgment in Baten , C‑271/00, EU:C:2002:656, paragraphs 46 and 47).
38. On the other hand, Article 12(3) of Regulation No 2201/2003 establishes a prorogation of jurisdiction rule which allows the courts of a Member State other than that in which the child is habitually resident to hear applications in matters of parental responsibility concerning that child, even if no matrimonial proceedings are pending before those courts (see, to that effect, judgment in L , C‑656/13, EU:C:2014:2364, paragraphs 45 and 52).
40. In accordance with Article 12(3)(b) of Regulation No 2201/2003, read in the light of Article 16 of the regulation, the courts of a Member State may establish jurisdiction on the basis of the former provision on condition that the existence is shown of an agreement, express or at least unequivocal, on that jurisdiction between all the parties to the proceedings, at the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen (see, to that effect, judgment in L , C‑656/13, EU:C:2014:2364, paragraph 56).
41. In addition, recital 12 in the preamble to Regulation No 2201/2003 states that the head of jurisdiction provided for in Article 12(3) is an exception to the criterion of proximity, under which it is in the first place for the courts of the Member State of the child’s habitual residence to hear actions concerning parental responsibility for that child, and of which Article 8(1) of the regulation is an expression. As the Advocate General observes in point 64 of his view, that exception is intended to allow the parties a certain autonomy in matters of parental responsibility. The condition that the acceptance of the jurisdiction of the courts seised by all the parties to the proceedings is unequivocal must therefore be interpreted strictly.
42. On this point, it should be noted, first, that such acceptance presupposes at the very least that the defendant is aware of the proceedings taking place before those courts. While that awareness is not in itself acceptance of the jurisdiction of the courts seised, an absent defendant on whom the document instituting proceedings has not been served and who is unaware of the proceedings that have been commenced cannot in any event be regarded as accepting that jurisdiction (see, by analogy, with reference to Article 24 of Regulation No 44/2001, judgment in A , C‑112/13, EU:C:2014:2195, paragraph 54).
43. Secondly, the wishes of the defendant in the main proceedings cannot be deduced from the conduct of a legal representative appointed by those courts in the absence of the defendant. Since that representative has no contact with the defendant, he cannot obtain from him the information necessary to accept or contest the jurisdiction of those courts in full knowledge of the facts (see, to that effect, judgment in A , C‑112/13, EU:C:2014:2195, paragraph 55).