Referring court and Member State
Bulgaria, Third Instance, Varhoven kasatsionen sad
Summary
The case involved three Bulgarian nationals (father, mother and child) who all resided in Italy albeit that the mother and father lived apart. The mother wished to renew the child’s passport but the father did not grant the consent required by Bulgarian law. The mother then made an application to a Bulgarian court to resolve the matter. The document instituting the proceedings was not served on the father as it was not possible to locate him. The court appointed a legal representative to represent the father, in accordance with the Bulgarian Code of Civil Procedure, who did not challenge the jurisdiction of the Bulgarian court and stated that the dispute should be resolved in the best interests of the child. The court, however, held that it lacked jurisdiction to hear the case as it concerned parental responsibility for a child who was habitually resident in Italy and therefore only the Italian courts had jurisdiction under Article 8 of Brussels IIa. The mother unsuccessfully appealed. The appellate court added that there was no prorogation of jurisdiction pursuant to Art 12 of the Regulation as, although the father did not contest the jurisdiction of the Bulgarian courts, he had taken part in the proceedings only through the court-appointed legal representative. The mother then appealed to the Bulgarian Supreme Court which stayed the proceedings and made a reference for a preliminary ruling to the CJEU. The CJEU interpreted the first two questions as being “whether an action in which one parent asks the court to remedy the lack of agreement of the other parent to their child travelling outside his Member State of residence and a passport being issued in the child’s name is within the material scope of” Brussels IIa? The third question was whether the jurisdiction of the Bulgarian courts may be founded upon Art 12 solely because the court-appointed legal representative of the father did not contest the jurisdiction of those courts. In response to the first two questions the CJEU noted that the concept of parental responsibility was given a broad definition in Art 2(7) of the Regulation – “all rights and duties relating to the person or the property of a child which are given to a natural person by” law. The present action clearly fell within that definition. The CJEU said that the Regulation applies even to decisions which relate only to a “particular aspect of parental responsibility” but does not apply to a decision on the award of a passport. In relation to the third question, the CJEU correctly regarded it as being on the interpretation of Art 12(3)(b) of the Regulation. The Court noted that as the provision embodied an exception to the basic jurisdictional rule contained in Art 8(1), it had to be interpreted strictly. The acceptance of jurisdiction in terms of Art 12(3)(b) presupposed that the defendant was at least aware of the proceedings taking place. It was therefore unacceptable that the wishes of the defendant be deduced from the conduct of a legal representative appointed by the court in the absence of the defendant. Accordingly, Art 12(3)(b) had to be interpreted as meaning that the jurisdiction may not be regarded as having been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ solely because the legal representative of the defendant, appointed by those courts of their own motion in the defendant’s absence, has not pleaded the lack of jurisdiction of those courts. This is an uncontroversial decision giving an expansive interpretation to the concept of ‘parental responsibility’. This is to ensure that, through the application of the jurisdictional rules contained in the Regulation, the best interests of the child are protected in as varied situations as possible. Similarly, the second part of the ruling is very sensible as it effectively gives expression to the principle of party autonomy which requires real and not imposed consent by both parties.