Judges J-C Bonichot, S Rodin
Advocate General M Szpunar
The general rule of jurisdiction in cases concerning jurisdiction in matters of parental responsibility, under article 8(1) of Council Regulation (EC) No 2201/2003, was in favour of the courts of the member state in which the child was habitually resident at the time the court was seised. However, where a child lawfully moved from one member state to another and acquired a new habitual residence there, the general rule was subject to article 9 of the Regulation, under which the courts of the member state of the child’s former habitual residence retained jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that member state before the child had moved, under certain conditions. Article 15(1) provided that, by way of exception, the courts of a member state having jurisdiction as to the substance of a case could, within certain time limits, request the transfer of that case, or a specific part thereof, to a court of another member state with which the child had a particular connection, if that court was better placed to hear the case and the transfer was in the best interests of the child.
The parties to the present case were the father and mother of two children. The family resided in Luxembourg before the mother and children moved to France on 30 August 2020. By judgment of 12 June 2020, a Luxembourg court fixed the legal domicile and habitual residence of the children with their mother, in France, with effect deferred to 31 August 2020, in order to allow the children to finish their school year in Luxembourg. By that judgment, the father, who was still resident in Luxembourg, was granted rights of access and accommodation with respect to the children, also with effect from 31 August 2020. In October 2020 the father applied to the Luxembourg court for an amendment to the terms of his rights of access and accommodation. Since the mother had already lodged a similar application of her own before a French court six days before the father’s application, the Luxembourg court stayed the proceedings pursuant to Regulation No 2201/2003 until the French court had ruled on its international jurisdiction. The French court declared that it did not have jurisdiction to rule on the mother’s application, on the ground that, in accordance with article 9 of the Regulation, the father, first, had lodged his application before the Luxembourg court within the three-month period following the children’s move and, second, had not accepted the jurisdiction of the French courts. The Luxembourg court, hearing the father’s application, questioned whether it had jurisdiction under article 9, since, although the application was submitted less than three months after the actual move, it was submitted more than four months after delivery of the judgment of 12 June 2020, which determined that move and which, having become final, had the force of res judicata. If that date were accepted, that court would therefore be required to decline jurisdiction to hear the father’s application. The Luxembourg court also raised the issue of the interplay between article 9 and article 15 of the Regulation, since while it considered that two of the conditions for the application of article 15 were satisfied, it was unsure as to whether it could decline jurisdiction in respect of that dispute in favour of the French courts. In those circumstances the Luxembourg court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the questions, in essence, whether: (i) the three-month period under article 9(1) of Regulation No 2201/2003 began on the day following that on which the child actually moved, or the day following that of the judgment which fixed the date of the change of habitual residence of the child; and (ii) the court of the member state of the child’s former habitual residence, which had jurisdiction to rule on the substance of the matter under article 9, could exercise the option of transferral, provided for in article 15, to the court of the member state of that child’s new habitual residence.
On the reference—
Held, (1) having regard to its wording, article 9 of Regulation No 2201/2003 made the continuing jurisdiction, in relation to rights of access, of the courts of the member state of the child’s former habitual residence (“the first member state”) subject to five cumulative conditions: the child must have moved “lawfully” and to have acquired a new habitual residence in the member state to which he or she moved (“the second member state”); the courts of the first member state had to have delivered a judgment on rights of access to the child, before the child had moved; the holder of those rights had to continue to habitually reside in the first member state; the courts of the first member state had to have been seised of an application to modify the former judgment concerning rights of access which they issued, during a period of three months “following the move” of the child; and the holder of access rights could not have accepted the jurisdiction of the courts of the second member state. None of the provisions of Regulation No 2201/2003 permitted the inference that the three-month period under article 9(1) could begin to run from an event prior to the actual moving of the child, such as the judicial decision which determined the date of that child’s change of habitual residence. Consequently, the fact that the judgment which initially fixed the rights of access had become final on the date of the application for modification of that judgment, was irrelevant. Such a request for modification was justified by the change in circumstances relating to the moving of the child and the transfer of habitual residence to another member state, irrespective of the date of that judgment. A national court therefore could not rely, against the holder of the rights of access, on any “force of res judicata” of the judgment which had initially fixed those rights and the arrangements for them, in order to find that an application to modify those rights was inadmissible, as otherwise the three-month period referred to in article 9(1) of the Regulation, during which the courts of the first member state retained jurisdiction to rule on such an application by way of derogation from article 8, would be rendered ineffective. Accordingly, the three-month period during under article 9(1) of Regulation No 2201/2003 began on the day following that on which that child actually moved to the member state of new habitual residence (judgment, paras 26, 27, 29–33, operative part, para 1).
(2) There was no provision in the Regulation that permitted the inference that the option, under article 15(1) of Regulation No 2201/2003, to transfer jurisdiction to a court of the member state of the child’s new habitual residence could not be exercised. In the present case, the court in the second member state, France, had declared that it did not have jurisdiction to hear an action brought by the mother on the ground, inter alia, that the father had applied for modification of his rights of access and accommodation before a court in the first member state, Luxembourg, within the three-month period following the moving of the children. Further, it did not appear that the French courts had jurisdiction to hear such an application. Accordingly, the court of the member state of the child’s former habitual residence, which had jurisdiction as to the substance of the matter under article 9 of Regulation No 2201/2003, could exercise the option of transferral, set out in article 15, to the court of the member state of that child’s new habitual residence provided that the conditions laid down in article 15 were satisfied (judgment, paras 38–44, operative part, para 2).
S Noë and W Wils, agents, for the European Commission, by written submissions.