UD v XB.
Date: 2018-10-17
25


In that regard, it should be stated, in the first place, that the present reference for a preliminary ruling concerns the interpretation of Regulation No 2201/2003, which was adopted in particular on the basis of Article 61(c) EC, now Article 67 TFEU which is in Title V of Part Three of the TFEU, relating to the area of freedom, security and justice, so that the reference falls within the scope of the urgent preliminary ruling procedure defined in Article 107 of the Rules of Procedure (judgments of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 34; of 9 January 2015, RG, C‑498/14 PPU, EU:C:2015:3, paragraph 36, and of 19 November 2015, P, C‑455/15 PPU, EU:C:2015:763, paragraph 31).
26


In the second place, as regards the criterion relating to urgency, it is clear from the order for reference that, in the event that the father’s coercion of the mother has been established, the child’s current welfare would be seriously compromised. In such a situation, any delay in taking judicial decisions relating to the child would prolong the current situation and would thereby risk causing serious, possibly irreparable, harm to that child’s development. In the event of a possible return to the United Kingdom, such a delay would also risk being detrimental to the child’s integration in her new family and social environment.
40


In particular, the uniform rules of jurisdiction contained in Regulation 2201/2003 are not intended to apply only to situations in which there is a real and sufficient link with the working of the internal market, by definition involving a number of Member States. In itself, the unification of the rules of jurisdiction introduced by that regulation certainly has the objective of eliminating obstacles to the functioning of the internal market which may derive from disparities between national legislations on the subject (see, by analogy, in relation to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters (OJ 1972 L 299, p. 32), as amended by successive conventions on the accession of new Member States to that convention, judgment of 1 March 2005, Owusu, C‑281/02, EU:C:2005:120, paragraph 34).
45


First of all, it must be observed that Regulation No 2201/2003 contains no definition of the concept of ‘habitual residence’. The use of the adjective ‘habitual’ merely indicates that the residence must have a certain stability or regularity (judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 44).
46


According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 45 and the case-law cited).
47


The concept of ‘habitual residence’ is used in articles of Regulation No 2201/2003 which do not contain any express reference to the law of the Member States. It is therefore necessary to define that concept, peculiar to EU law, in the light of the context of the regulation’s provisions and the objective pursued by it (see, to that effect, judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 46).
48


In that regard, it is apparent from recital 12 of Regulation No 2201/2003 that 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 considered that the court geographically close to the child’s habitual residence is the court best placed to assess the measures to be adopted in the interests of the child. 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 (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 51 and the case-law cited).
49


Article 8 of Regulation No 2201/2003 gives expression to that objective by establishing a general jurisdiction in relation to parental responsibility in favour of the courts of the Member State in which the child is habitually resident (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 52).
50


Moreover, as the court has explained on a number of occasions, in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent (judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 38; of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 49; of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 51; of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 60; of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraph 43, and of 28 June 2018, HR, C‑512/17, EU:C:2018:513, paragraph 41).
52


Thus, the Court has held that the recognition 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 (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 61).
56


Thus Article 8 of Regulation No 2201/2003 is supplemented by specific rules applicable, in particular, 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 an 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) (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 56).
61


It is true that, in the absence of that coercion, the child at issue in the main proceedings might have been born, according to the alleged intention of the mother, in the United Kingdom. The Court has already held that the intention of the person with parental responsibility to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or rental of accommodation in the host Member State, may constitute an indicator of the transfer of the habitual residence (judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 50 and the case-law cited).
62


However, in the absence of the child’s physical presence in the Member State concerned, it is not possible, when interpreting the concept of ‘habitual residence’, to give greater weight to circumstances such as the intention of the parent who, in practice, has custody of the child, or the possible habitual residence of one or other parent in that Member State, at the expense of objective geographical considerations without disregarding the EU legislature’s intention (see, by analogy, judgment of 28 June 2018, HR, C‑512/17, EU:C:2018:513, paragraph 60).
63


The interpretation that the fact that the child concerned is not physically present in the Member State concerned precludes considerations such as those set out in the preceding paragraph of the present judgment from being taken into account is more consistent with the criterion of proximity, prioritised by the EU legislature within Regulation No 2201/2003 precisely in order to ensure that the best interests of the child are taken into account (see, by analogy, judgment of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraph 67).