Bianca Purrucker v Guillermo Vallés Pérez.
Date: 2010-07-15
61. It is evident from the position of Article 20 in the structure of Regulation No 2201/2003 that it cannot be regarded as a provision which determines substantive jurisdiction for the purposes of that regulation.
63. It follows that Article 20 of Regulation No 2201/2003 can cover only measures adopted by courts which do not base their jurisdiction, in relation to parental responsibility, on one of the articles in Section 2 of Chapter II of the regulation.
70. As is evident from Recital 2 in the preamble to Regulation No 2201/2003, the principle of mutual recognition of judicial decisions is the cornerstone for the creation of a genuine judicial area.
71. As stated in Recital 21 of the regulation, that recognition should be based on the principle of mutual trust.
72. It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of Regulation No 2201/2003 are required to respect, and as a corollary the waiver by Member States of the right to apply their internal rules on recognition and enforcement of foreign judgments in favour of a simplified mechanism for the recognition and enforcement of decisions handed down in matters of parental responsibility (see, by analogy, in relation to insolvency proceedings, Case C‑341/04 Eurofood IFSC  [2006] ECR I‑3813, paragraph 40).
73. That principle of mutual trust implies that the court of a Member State hearing an application relating to parental responsibility must determine whether it has jurisdiction having regard to Articles 8 to 14 of Regulation No 2201/2003 (see, by analogy, Eurofood IFSC , paragraph 41) and that it must be clearly evident from the judgment delivered by that court that the court concerned has intended to respect the directly applicable rules of jurisdiction, laid down by that regulation, or that the court has made its ruling in accordance with those rules.
77. Article 20 of Regulation No 2201/2003 provides that a number of conditions must be satisfied. As the Court has made clear, the authority of the courts covered by Article 20(1) of that regulation 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 ( A , paragraph 47, and Case C‑403/09 PPU Detiček  [2009] ECR I‑0000, paragraph 39).
78. 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.
81. It follows from the fact that Regulation No 2201/2003 is binding and directly applicable and from the wording of Article 20 thereof that a measure falling within the scope of that provision may, in the Member State of the court which has adopted the judgment, prevail over an earlier judgment adopted by a court of another Member State which has substantive jurisdiction. On the other hand, a judgment which does not fall within the scope of Article 20 of the regulation because it does not comply with the conditions laid down in that provision cannot take precedence over such an earlier judgment (see the situation referred to in Detiček , in particular paragraph 49).
91. As stated by the United Kingdom Government at the hearing, to accept the recognition and en forcement of measures within the scope of Article 20 of Regulation No 2201/2003 in all other Member States, including the State which has substantive jurisdiction, would, in addition, create a risk of circumvention of the rules of jurisdiction laid down by that regulation and of forum shopping, which would be contrary to the objectives pursued by that regulation and, in particular, to the objective of making sure that the best interests of the child are taken into consideration by ensuring that decisions concerning the child are taken by the court geographically close to his habitual residence, that court being regarded by the European Union legislature as the court best placed to assess the measures to be taken in the interests of the child.
94. In paragraph 42 of Detiček , the Court defined the concept of urgency, as used in Article 20 of Regulation No 2201/2003, as relating both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance.
95. In that regard, it should be borne in mind that, although the specific detailed rules concerning the defendant’s right to be heard may vary according to the urgency for a ruling to be given, any restriction on the exercise of that right must be duly justified and surrounded by procedural guarantees ensuring that persons concerned by such proceedings actually have the opportunity to challenge the measures adopted in urgency (see, by analogy, in relation to insolvency proceedings, Eurofood IFSC , paragraph 66).
97. In view of the importance of the provisional measures – whether they are adopted by a court which has substantive jurisdiction or not – which may be ordered in matters of parental responsibility and, in particular, in view of their possible consequences for young children (see, to that effect, Case C‑195/08 PPU Rinau  [2008] ECR I‑5271, paragraph 81), especially in relation to separated twins, and given the fact that, as it happens, the court which adopted the measures issued a certificate pursuant to Article 39 of Regulation No 2201/2003, when the force of the provisional measures covered by that certificate was subject to the condition that substantive proceedings be brought within 30 days, it is vital that a person affected by such a procedure, even if that person has been heard by the court which adopted the provisional measures, be able to take steps to bring an appeal against the judgment ordering those measures in order – before a court which is different from the court which adopted the measures and which is capable of ruling promptly – inter alia, to challenge the substantive jurisdiction which that court attributed to itself, or, if it is not evident from the judgment that that court had, or had attributed to itself, substantive jurisdiction on the basis of that regulation, to dispute that the conditions set out in Article 20 of Regulation No 2201/2003, as restated in paragraph 77 of this judgment, were satisfied.
99. It is for the national court to apply, in principle, national law while taking care to ensure the full effectiveness of European Union law, a task which may lead it to refrain from applying, if need be, a national rule preventing that or to interpret a national rule which has been drawn up with only a purely domestic situation in mind in order to apply it to the cross-border situation at issue (see, in particular, to that effect, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 16; Case C‑213/89 Factortame and Others  [1990] ECR I‑2433, paragraph 19; Case C‑453/99 Courage and Crehan  [2001] ECR I‑6297, paragraph 25; Case C‑253/00 Muñoz and Superior Fruiticola  [2002] ECR I‑7289, paragraph 28; and Case C‑443/03 Leffler  [2005] ECR I‑9611, paragraph 51).