EUPillar C-296/10 Bianca Purrucker v Guillermo Vallés Pérez (Second Chamber) [2010] ECR I-11163

Summary

This decision concerned the same parties as C-256/09 (Purrucker v Vallés Pérez (No 1)) (see relevant database entry for the facts of the case). In the present proceedings, the German court was faced with the issue whether a court seised solely for the purpose of making provisional measures (in this case, a Spanish court) should be regarded as the court ‘first seised’ for the purposes of Art 19(2). Another problem the German court encountered was that no information was forthcoming from the Spanish court as to whether it considered itself to be seised also of substantive custody proceedings. Hence, the following questions were submitted to the CJEU for a preliminary ruling: “1) Is Art 19(2) applicable if a court of a MS first seised by one party to resolve matters of parental responsibility is called upon to grant only provisional measures and a court of another MS subsequently seised by the other party of an action with the same object is called upon to rule on the substance of the matter? 2) Is [Art 19(2) also applicable if a ruling in the isolated proceedings for provisional measures in one MS is not capable of recognition in another MS within the meaning of Art 21? [Note: see C-256/09]) 3) Is the seising of a court in a MS for isolated proceedings for provisional measures to be equated to seising as to the substance of the matter within the meaning of Art 19(2) if under the national rules of procedure of that State a subsequent action to rule on the substance of the matter must be brought before that court within a specified period in order to avoid adverse procedural consequences?” The CJEU ruled as follows: First, the provisions of Art 19(2), are not applicable where a court of a MS first seised, is seised only for the purpose of making provisional measures within the meaning of Art 20. Second, the fact that a court of a MS is seised in the context of proceedings to obtain interim relief does not necessarily preclude the possibility that, subject to the national law of that MS, there may be an action as to the substance of the matter which is linked to the action to obtain interim measures and in which there is evidence to demonstrate that the court seised has jurisdiction. Third, where the court second seised has made unsuccessful efforts to obtain relevant information, and is therefore unable to determine the cause of action of proceedings brought before the court first seised, and where the interest of the child requires the handing down of a judgment which may be recognised in MSs other than that of the court second seised, it is the duty of that court, after the expiry of a reasonable period in which answers to the enquiries made are awaited, to proceed with consideration of the action brought before it. Provisional measures made under Art 20, since they are not capable of recognition in another MS within the meaning of Art 21, cannot give rise to lis pendens within the meaning of Art 19(2). However, proceedings pending before a court whose jurisdiction is based on Arts 8 to 14, and which is first seised of an action relating to parental responsibility over a child, irrespective of the characterisation of the proceedings according to the national law of that MS and irrespective of whether the measure is sought on a provisional basis, or whether it is sought for a definite or indefinite period, prevent a court in another MS from ruling on the same cause of action until the court first seised has established that it has jurisdiction. Nevertheless, the best interests of the child principle requires that there is a limit as to how long the court second seised should be expected to wait for the information from which it can determine whether it can assume jurisdiction. Although this approach enables the court second seised to end the stalemate in the proceedings, there is a risk that, eventually, conflicting judgments emerge from the proceedings.