Case number and/or case name
C-256/09 Bianca Purrucker v Guillermo Vallés Pérez (Second Chamber) [2010] ECR I-07353
Referring court and Member State
Germany, Third Instance, Bundesgerichtshof
Summary
The case concerned twins born in Spain in 2006. The children’s mother was German and the father was Spanish. The children had to remain in hospital for a number of months.. The parents split up and in January 2007, they signed an agreement before a notary providing that both would have parental responsibility, with the mother and the children relocating to Germany and the father having unrestricted access to the children. However, the agreement was only enforceable if approved by a court, which was not done. In February 2007, the mother left for Germany with the boy, whilst his twin sister had to remain in hospital in Spain. The intention was for the girl to be brought to Germany once discharged from hospital. The agreement regarding parental responsibility broke down and both parents initiated proceedings, in Spain and in Germany respectively. The father obtained provisional measures giving him rights of custody and ordering the mother to return the boy to Spain. The Spanish court issued a certificate pursuant to Art 39(1) of Brussels IIa confirming that the judgment was enforceable. The father successfully initiated proceedings in Germany to enforce the Spanish orders and the mother appealed. The referring court asked the following question to the CJEU: Do the provisions of Art 21 et seq of Brussels IIa, in conjunction with Art 2(4), also apply to enforceable provisional measures, within the meaning of Art 20, concerning the right to child custody? (It is to be noted that the relevance of that question was challenged, first, on the ground that the provisional measures concerned in the main proceedings did not fall within the scope of Article 20 of the Regulation, since they were taken by a court which had jurisdiction as to the substance of the matter (it was not clear from the Spanish judgment on which ground the Spanish court had assumed jurisdiction), and, secondly, on the ground that even if those measures had been taken by a court which did not have jurisdiction as to the substance of the matter, they could not in any event fall within the scope of Art 20 in so far as they related to the boy who was not in Spain when the court delivered its judgment.) The CJEU ruled that the provisions laid down in Art 21 et seq of Brussels IIa on recognition and enforcement do not apply to provisional measures, relating to rights of custody, falling within the scope of Art 20. The Court accepted a suggestion of AG Sharpston that other international instruments or national legislation might be used to secure the recognition of such provisional measures. The Court noted that it was not clear from the Spanish court’s judgment how it had applied the jurisdictional rules of the Regulation to the particular facts of the case. The court of a Member State hearing an application concerning parental responsibility must determine whether it has jurisdiction having regard to Arts 8 to 14 of the Brussels IIa Regulation. It must be clearly evident from the judgment that the court concerned had intended to respect the directly applicable rules of jurisdiction, or that the court had made its ruling in accordance with those rules. Where this clarity is lacking, it may be inferred that the judgment was not adopted in accordance with the Regulation’s jurisdictional rules. Although the courts of other Member States must not review the assessment made by the first court of its jurisdiction (Art 24), this does not prevent an examination of the judgment determining whether it falls within the scope of Art 20. Indeed, to make such a determination is not to review the jurisdiction of the court of origin but merely to ascertain the basis on which that court considered itself competent. The Court held that the person affected by provisional measures must be given the opportunity to bring an appeal against the judgment without this being viewed as an acceptance of the substantive jurisdiction of the court that ordered the provisional measures.