Jasna Detiček v Maurizio Sgueglia.
Date: 2009-12-23
30. The referring court justified its request by stating that there is an enforceable judicial decision adopting protective measures, taken by the Italian court and giving custody of the child to the father, and a contrary judicial decision adopting protective measures, taken by the Slovenian court and giving custody of the child to the mother. The court also states that there is need to act quickly, since a delayed decision would be contrary to the interests of the child, and could lead to an irreparable change for the worse in the relationship between the child and her father. It states, finally, that the provisional nature of the measure adopted in the proceedings for protective measures concerning the custody of the child of itself demands urgent action by the Court, in order not to prolong the state of legal uncertainty.
33. According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording and context but also the objectives pursued by the rules of which it forms part (see, to that effect, inter alia, Case C‑301/98 KVS International  [2000] ECR I‑3583, paragraph 21; Case C‑300/05 ZVK  [2006] ECR I‑11169, paragraph 15; and Case C‑301/08 Bogiatzki, married name Ventouras  [2009] ECR I‑0000, paragraph 39).
34. It also follows from settled case-law that the Member States must not only interpret their national law in a manner consistent with Community law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of Community law (see, to that effect, Case C‑101/01 Lindqvist  [2003] ECR I‑12971, paragraph 87, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others  [2007] ECR I‑5305, paragraph 28).
36. Under Article 8 of Regulation No 2201/2003, jurisdiction in matters of parental responsibility is conferred, primarily, on the courts of the Member State in which the child is habitually resident at the time the court is seised. Because of their geographical proximity, those courts are generally the best placed to assess the measures to be taken in the interests of the child.
38. However, Article 20(1) of Regulation No 2201/2003 provides that the courts of a Member State in which the child is present are entitled, under certain conditions, to take such provisional, including protective, measures as may be available under the law of that State, even if that regulation confers jurisdiction as to the substance of the matter on a court of another Member State. In that it is an exception to the system of jurisdiction laid down by the regulation, that provision must be interpreted strictly.
39. As appears from the very wording of Article 20(1) of Regulation No 2201/2003, the courts referred to in that provision are entitled to take such provisional or protective measures only on condition that three cumulative conditions are satisfied, namely that the measures concerned must be urgent, must be taken in respect of persons or assets in the Member State where those courts are situated, and must be provisional (see, to that effect, Case C‑523/07 A  [2009] ECR I‑0000, paragraph 47).
42. Since Article 20(1) of Regulation No 2201/2003 authorises a court which does not have jurisdiction as to the substance to take, exceptionally, a provisional measure concerning parental responsibility, it must be considered that the concept of urgency in that provision relates 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.
45. First, to acknowledge that there is a situation of urgency in a case such as the present one would run counter to the principle of mutual recognition of judgments given in the Member States established by Regulation No 2201/2003, a principle which is itself based, as follows from recital 21 in the preamble to that regulation, on the principle of mutual trust between Member States.
49. The recognition of a situation of urgency in a case such as the present one would run counter to the aim of Regulation No 2201/2003 to deter the wrongful removal or retention of children between Member States (see, to that effect, Case C‑195/08 PPU Rinau  [2008] ECR I‑5271, paragraph 52). To accept that a measure involving a change of parental responsibility could be taken under Article 20(1) of Regulation No 2201/2003 would amount, by consolidating a factual situation deriving from wrongful conduct, to strengthening the position of the parent responsible for the wrongful removal.
53. Finally, the above considerations are supported by the requirements which follow from recital 33 in the preamble to Regulation No 2201/2003, which states that the regulation recognises the fundamental rights and observes the principles of the Charter, seeking in particular to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter.
54. One of those fundamental rights of the child is the right, set out in Article 24(3) of the Charter, to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child.
55. Article 20 of Regulation No 2201/2003 cannot be interpreted in such a way that it disregards that fundamental right.
56. In this respect, it is clear that the wrongful removal of a child, following a decision taken unilaterally by one of the parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent.