delivered on 6 December 2017 (1)

Case C‑565/16

(Request for a preliminary ruling from the Eirinodikeio Lerou (Small Claims Court of Leros, Greece))

(Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Brussels IIbis Regulation — ‘Acceptance’ of jurisdiction under Article 12(3) — International jurisdiction in matters of parental responsibility — Jurisdiction of a court of a Member State before which a request for a judicial authorisation of a renunciation of inheritance on behalf of a minor child was brought — Prorogation of jurisdiction — Article 1(2)(b) of Regulation (EU) No 650/2012)

1.This request for a preliminary ruling by the Eirinodikeío Lerou (Small Claims Court of Leros, Greece, ‘the referring court’) concerns international jurisdiction in a matter of family law.

2.In the case at hand, a child is the heir to her deceased grandfather’s burdened estate. Her parents are the applicants in the main proceedings and are seeking a leave for a renunciation of the inheritance on their daughter’s behalf. To that end, they have brought the matter before a court in Greece where the child’s grandfather had been living and where his property is located. As the parents and their daughter had their habitual residence in Italy, the Greek court queries whether it has international jurisdiction and therefore requests an interpretation of Article 12(3) of Regulation (EC) No 2201/2003 (2) (‘Brussels IIbis’) providing for prorogation of international jurisdiction.

Article 12(3) of Brussels IIbis is headed ‘Prorogation of jurisdiction’ and states:

‘The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a)the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and

(b)the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.’

4.According to the order for reference, for some non-contentious proceedings, the Greek Code of Civil Procedure in Articles 748(2) and 750 read in conjunction, provides that a copy of the petition with notification of the fixing of a hearing date must be sent to the prosecutor before the first instance courts of the area (‘prosecutor’), who has the right to appear before the local court and also participate in the hearing. According to the established interpretation of those provisions, the prosecutor legally is a party to the non-contentious proceedings and has the right to undertake any procedural steps, for example to submit an appeal, irrespective of whether or not the prosecutor was summoned to the hearing and irrespective of whether he has appeared at the hearing. The prosecutor acts as a representative of the State in the general interest. In the case of a renunciation of inheritance on behalf of a minor child the general interest is equivalent to the child’s interest; this is due to the principle of protection of the best interests of the child enshrined in Article 21(1) of the Greek Constitution. (3)

II. Facts in the main proceedings and the question referred for a preliminary ruling

5.The applicants, Mr Alessandro Saponaro and Mrs Kalliopi-Chloi Xylina, have parental responsibility over their minor child Clio Margot Saponaro. All three are habitually resident in Rome, Italy. The child is a Greek national. (4)

6.The child’s maternal grandfather Michaïl Xylina had been living in Greece, where he died intestate on 10 May 2015. Since his wife and children have renounced the inheritance, the estate falls to Clio Margot as his grandchild.

7.Michaïl Xylina’s estate essentially comprises two assets, a car and a boat, which are located in Greece and which are worth EUR 900 in total. In April 2015, after he had been convicted by a criminal court for serious attempted fraud, the victim of the offence declared that he would be bringing civil proceedings claiming damages. Given that Michaïl Xylina died intestate, liability for any damages awarded falls on his heirs.

8.The applicants therefore initiated proceedings to seek leave to renounce the inheritance on behalf of their daughter, and they have brought the matter before the referring court.

9.That court wonders whether it has international jurisdiction.

10.In this regard, the referring court raises the following considerations: Regulation (ΕU) No 650/2012 (5) is not applicable to the main proceedings ratione temporis. It is rather Brussels IIbis that is applicable. Article 8(1) of the latter regulation provides that the courts of the country of the child’s habitual residence (which is Italy and not Greece) are to have jurisdiction. Accordingly, jurisdiction of a Greek court could only be based on Article 12(3), since that provision allows prorogation of jurisdiction, in other words, allows a court of a Member State other than that where the child is habitually resident to assume jurisdiction.

11.Therefore the referring court asks the Court to provide an interpretation of Article 12(3) and focuses its questions on the second paragraph of that provision, i.e. Article 12(3)(b).

12.It is in that context that the referring court has sent the following question to the Court for a preliminary ruling:

‘If a petition for leave to renounce an inheritance is brought before a Greek court by the parents of a minor child who is habitually resident in Italy, are the conditions for a valid prorogation of jurisdiction under Article 12(3)(b) of Regulation No 2201/2003 met, namely:

(a)the unequivocal agreement to the prorogation by the parents, demonstrated by merely the lodging of the application before the Greek court,

(b)the agreement to the prorogation at the time of the lodging of the application if the prosecutor before the first instance courts is one of the parties, given that under Greek law he is legally a party to the relevant proceedings,

(c)that the prorogation of jurisdiction is in the best interests of the child, given that the child and the applicants, who are the child’s parents, are habitually resident in Italy, while the place of residence of the person from whom property is inherited at the time of his death was Greece and the property inherited is in Greece.’

13.Written observations have been submitted to the Court by the Hellenic Republic and the European Commission. Upon a request for clarification by the Court, the referring court provided additional information on the role of the prosecutor in the procedure in the main proceedings. No hearing was requested and none was held.

III. Assessment

The referring court has raised the question of whether the conditions for prorogation of jurisdiction under Article 12(3)(b) of Regulation No 2201/2003 are met in the context of a petition for leave to renounce an inheritance brought before it by the parents of a minor child who is habitually resident in Italy. The court seeks clarification on whether the unequivocal agreement to the prorogation by the parents can be demonstrated by the mere lodging of the application before the Greek court, and whether the agreement to the prorogation is valid if the prosecutor is a party to the proceedings.

I have come to the conclusion that the national referring court has international jurisdiction pursuant to Article 12(3) of Brussels IIbis. In particular, the preconditions for the application of Article 12(3)(b) are met because all participants to the proceedings have accepted the jurisdiction of the courts of Greece, which is a Member State with which the child has a substantial connection.

Preliminary remarks

Brussels IIbis concerns international jurisdiction in matters of parental responsibility and applies to the attribution, exercise, delegation, restriction or termination of parental responsibility (6) including measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. (7) By renouncing inheritance of the burdened estate, the applicants exercise their jointly held parental responsibility with respect to Clio Margot, given that they are protecting their child from acquiring property that may carry liabilities.

I acknowledge that matters of succession are excluded from the scope of Brussels IIbis. (8) However, under the established case law of the Court, a mere application for a renunciation of an inheritance is not a matter of succession within the meaning of Article 1(3)(f) of Brussels IIbis.

In Matoušková, the Court has held that the fact that a request for approval of an agreement had been made in succession proceedings could not be regarded as decisive as to whether that measure should be classified as falling within the law on succession. Instead, the Court viewed the need to obtain approval from the court dealing with guardianship matters as a direct consequence of the status and capacity of the minor children. The request for approval constituted a protective measure for the child relating to the administration, conservation or disposal of the child’s property as part of the exercise of parental responsibility, within the meaning of Article 1(1)(b) and 2(e) of Brussels IIbis. (9)

The jurisdiction of the referring court is thus to be determined under Brussels IIbis, and under Brussels IIbis alone.

As the referring court has correctly stated, the Succession Regulation is not applicable here, ratione temporis. Michaïl Xylina died on 10 May 2015, whereas Article 83(1) of the Succession Regulation limits its scope to the succession of persons who die on or after 17 August 2015. I would, however, like to add that, ratione materiae, the Succession Regulation will also not apply to future cases of the present kind because questions of legal capacity of natural persons are excluded from the scope of the Succession Regulation by Article 1(2)(b) thereof. As the Court has stated in Matoušková, a request for approval to act on behalf of a child concerns the child’s capacity. (10)

Having thus confirmed that jurisdiction in our case is dependent on Brussels IIbis, I would now like to give a brief overview of the different grounds of jurisdiction that that regulation provides in matters of parental responsibility.

Under Article 8(1) of Brussels IIbis, jurisdiction is generally available in the Member State of the child’s habitual residence, which is Italy in the case at hand. Besides some exceptions to this general rule for special situations, (11) and a forum non conveniens provision, (12) Brussels IIbis contains also a more general exception (13) to Article 8(1), namely Article 12(3). Pursuant to Article 12(3), whenever the child has a substantial connection with a Member State, prorogation of the jurisdiction of the courts of that Member State is allowed.

The present request for a preliminary ruling seeks an interpretation of this particular ground of jurisdiction. It has two preconditions: the substantial connection and the fact of prorogation. The referring court’s question is however limited to the second precondition, i.e. the prorogation. Before discussing this, I will nevertheless briefly address the first precondition, i.e. the substantial connection. The reason for this extension of the discussion is that both preconditions of Article 12(3) of Brussels IIbis work together and that one cannot interpret the latter independently of the former.

After (in part B) retracing the substantial connection of the child to the forum Member State under Article 12(3)(a) of Brussels IIbis, I will consider Article 12(3)(b) of Brussels IIbis with its three requirements for prorogation as mentioned by the requesting court, namely whether the jurisdiction of the seised court has been accepted in an unequivocal manner by Clio Margot’s parents (in part C) and by the prosecutor (in part D) and whether this was in the best interests of the child (in part E).

In essence the referring court wants to know whether these three conditions are fulfilled, and in my opinion they are.

Child’s nationality of the forum Member State

According to Article 12(3)(a) Brussels IIbis, the first element for prorogation of the jurisdiction of a court of a Member State is ‘a substantial connection’ between the child and ‘that Member State, in particular by virtue of the fact that … the child is a national of that Member State.’

Since Clio Margot holds Greek nationality, the requirement of a substantial connection of the child with the forum Member State according to Article 12(3)(a) Brussels IIbis is clearly fulfilled.

In its order for reference, the referring court has not mentioned whether Greek nationality is Clio Margot’s only nationality or whether she is a dual national holding also Italian nationality through her father. As dual nationality may be probable in the present case, (14) I would like to include some remarks on the consequences, should that be the case. In such circumstances, the question would arise whether each of her nationalities could be considered a connecting factor in this context or whether a choice would have to be made, as to which nationality should prevail.

As her habitual residence is in Italy, Clio Margot’s effective nationality would then probably be the Italian, representing a much stronger connection than the Greek. Nevertheless, in the wording of Article 12(3)(a) of Brussels IIbis, nationality has been expressly mentioned, without any qualification, as a connecting factor sufficient to establish a ‘substantial connection’. Thus, this factor can stand on its own, and additional ties to the forum Member State are not required. As the legislature complemented the concept of a ‘substantial connection’ with the example of a fixed factor such as nationality, a court may not investigate whether in a specific case the connection is sufficiently strong. (15)

The Court has held in Hadadi that under Brussels IIbis all nationalities of Member States are to be treated equally and thus the national court cannot overlook the factor of nationality of the forum Member State. (16)

Acceptance of jurisdiction by the parents’ lodging of an application

In the first part of its question, the referring court is asking whether the mere lodging of an application with a court of a Member State demonstrates the unequivocal acceptance of the jurisdiction of the courts of that Member State according to Article 12(3)(b) of Brussels IIbis.

The present request for a preliminary ruling seeks an interpretation of this particular ground of jurisdiction. It has two preconditions: the substantial connection and the fact of prorogation. The referring court’s question is however limited to the second precondition, i.e. the prorogation. Before discussing this, I will nevertheless briefly address the first precondition, i.e. the substantial connection. The reason for this extension of the discussion is that both preconditions of Article 12(3) of Brussels IIbis work together and that one cannot interpret the latter independently of the former.

The Greek Government and the Commission have provided an affirmative answer. For the following reasons I agree.

When the applicants in the main proceedings instituted proceedings before the referring court, they did so with a view to that court resolving the matter. Thus, the mere act of lodging an application informs the court and the other parties to the proceedings that the applicants want the seised court to decide the case. A court, however, cannot adjudicate unless it has jurisdiction.

Therefore, although the mere wish to obtain a decision on a matter brought before a court of a Member State certainly does not constitute an express acceptance of that court’s jurisdiction, it unequivocally implies such an acceptance.

Doubts may however rise from the fact that the heading of Article 12 Brussels IIbis, which is the provision to be interpreted here, does not use the term ‘acceptance’ but rather employs the term ‘prorogation’.

Prorogation commonly means that jurisdiction is conferred by the parties upon a court by way of those parties’ agreement. (17) A core element of a prorogation is thus a consensus on the part of the persons concerned. (18) Such an understanding may suggest that a real choice needs to take place, i.e. that more than one option is available from which the actors can choose and moreover that those who choose are aware of the choices they have.

In the present case, as has been mentioned above, Italian courts have jurisdiction under Article 8(1) of Brussels IIbis. Thus Clio Margot’s parents in fact did have a choice. The question however is, whether they were aware of this, but the case file does not contain any information on this issue. If a prorogation under Article 12 of Brussels IIbis were to presuppose a real choice, it might be questionable whether the requisite mental element was present in the case at hand.

Instead of repeating the term ‘prorogation’ used in the heading, when it comes to the details specified in the particular paragraphs of Article 12 of Brussels IIbis, the legislature uses the term ‘acceptance’. Acceptance, however, has a more passive character. It does not require an intention to influence jurisdiction and create new jurisdiction, i.e. to confer jurisdiction on the courts of a Member State that would otherwise not have had jurisdiction.

If acceptance suffices and a prorogation in a narrow sense involving an intention to shape jurisdiction is not required, the threshold is low. This is so because acceptance is not the only element necessary to create that jurisdiction; at the same time, a substantive connection of the child to the forum Member State is required, which is an objective element guaranteeing that there is some objective link between the proceedings and that State: Only the courts of Member States to which the child has a substantial connection, as required under Article 12(3)(a) of Brussels IIbis, qualify for acceptance under Article 12(3)(b) of Brussels IIbis, which thus can only relate to a limited number of Member States, namely those to which a close connection exists in any event.

On the basis of the foregoing I suggest that where a holder of parental responsibility lodges an application with a court of such a Member State, the mere act of lodging an application demonstrates that party’s unequivocal acceptance of the jurisdiction of the courts of that country within the meaning of Article 12(3)(b) of Brussels IIbis.

The acceptance has, however, to be made in the proceedings at issue. As the Court has held in L, it is not sufficient if one of the parties to the proceedings brings one proceeding before a court and the other brings another proceeding before that same court, if in the first proceedings he pleads lack of jurisdiction. (19) The Court explained that a prorogation under Article 12(3) Brussels IIbis is valid only for one specific proceeding (20), which means that the acceptance has to be ascertained for every proceedings individually.

As both parents of Clio Margot jointly lodged the application with the referring court in one single proceedings, this is to be considered an unequivocal acceptance of jurisdiction.

Acceptance of jurisdiction by the prosecutor’s acquiescence

The second part of the referring court’s question concerns the prosecutor. If he is considered one of the parties to the proceedings within the meaning of Article 12(3)(b) of Brussels IIbis, for a prorogation to be effective, he must accept the jurisdiction of the Greek court and this ‘at the time the court is seised’.

This question has three elements.

Party

Is the prosecutor one of the ‘parties to the proceedings’ within the meaning of Article 12(3) of Brussels IIbis? The Commission takes the view that this is not the case because the prosecutor does not have any interest of his own and acts in the general interest.

As the Greek Government correctly suggests, the question who is a party to the proceedings needs to be left to the national law of the forum Member State. Brussels IIbis unifies international jurisdiction in matters of parental responsibility. It does not regulate issues that are preliminary to those matters, but refrains from interfering with the Member State’s procedural law in general.

This is confirmed by a juxtaposition of Articles 12(3) and 12(1) of Brussels IIbis. Article 12(1) of Brussels IIbis, which allows prorogation of the jurisdiction of the courts of a Member State where divorce proceedings are brought, contains a precise description of those who have to accept the jurisdiction for prorogation to become effective, namely ‘the spouses and … holders of parental responsibility’. Article 12(3) of Brussels IIbis, in contrast, refers to ‘all the parties to the proceedings’, thereby using a reference to the particular procedure. The procedure however is organised according to the national law of the court seised.

According to the referring court, under Greek national law, the prosecutor is considered a party to the relevant proceedings.

In the main proceedings, the prosecutor has been passive and has refrained from taking any of the steps open to him to oppose the prorogation of jurisdiction as a result of the lodging of an application by the child’s parents. In other words, the prosecutor has acquiesced in, that is, has tacitly accepted, the prorogation of jurisdiction. The Greek Government’s opinion is that this is sufficient for an acceptance, on his part, of the jurisdiction.

Indeed the prosecutor in the main proceedings, seeking leave for a renunciation of an inheritance on behalf of a child, has the role of a silent guardian. According to the information that the referring court has provided, a copy of the petition with notification of the fixing of a hearing date must be sent to the prosecutor, who is a party to the non-contentious proceedings and has the right to appear before the local court, to participate in the hearing, and to undertake any procedural steps, for example, to submit an appeal, irrespective of whether or not the prosecutor was summoned to the hearing and irrespective of whether he has appeared at the hearing.

The status of the prosecutor in non-contentious proceedings of the present kind, as described by the referring court, can thus be characterised as being a passive observer, with the right to be informed and with the capacity, at any stage of the proceedings, to exercise the procedural rights of a party.

Based on the nature of his role, the prosecutor’s acquiescence is to be deemed sufficient for an unequivocal acceptance of jurisdiction as long as he has effectively received the initial notification of the parents’ application. As under Greek law the prosecutor has to receive a copy of the petition with notification of the fixing of a hearing at which he can participate, he is in a position to respond if he wishes and to oppose the parents’ seisure of the Greek courts.

52.Coming to the conclusion that the prosecutor is a party and therefore that prorogation cannot take place without his acceptance of jurisdiction, the question arises at what time this has to occur.

53.Jurisdiction is an issue that needs to be determined at an early stage of proceedings. A court’s jurisdiction to hear a case cannot remain unclear longer than necessary.

54.That is why Article 12(3)(b) of Brussels IIbis requires the acceptance of the jurisdiction to be made ‘at the time the court is seised’. According to Article 16 of Brussels IIbis ‘a court shall be deemed to be seised at the time when the document instituting the proceedings … is lodged with the court’.

55.Applying this definition of Article 16 of Brussels IIbis in a strict sense would mean that only the acceptance of the applicants would be relevant to prorogation. All other parties will be aware of the proceedings only at a later stage, as their being informed presupposes a notification of the document instituting the proceedings.

56.On the one hand, Article 16 of Brussels IIbis is to be found in Section 3 of the chapter on jurisdiction, which contains, according to the heading of the section, ‘Common provisions’, and thus, for purposes of systematic interpretation, the definition that Article 16 of Brussels IIbis provides should apply to the present case.

57.On the other hand, a strict application of this definition would make Article 12(3) of Brussels IIbis otiose. If only the applicants can meet the strict requirements of Article 16 of Brussels IIbis, that would mean that prorogation would be dependent on the applicants alone and not include ‘all parties to the proceedings’ in the acceptance of prorogation. That would remove the effet utile of Article 12(3) of Brussels IIbis. If prorogation was intended to be dependent entirely on the applicants, the legislature could have chosen other terms than ‘all parties to the proceedings’, as it did, for example, in Article 12(1) of Brussels IIbis, under which the acceptance must be made ‘by the spouses and by the holders of parental responsibility’.

58.Therefore, as the strict definition provided in Article 16 of Brussels IIbis is not compatible with Article 12(3) of Brussels IIbis, the interpretation has to be nuanced, so as to maintain, on the one hand, that a phase of jurisdictional uncertainty has to be kept short, and, on the other, that the acceptance of all parties is necessary.

59.That said, the acceptance has to be clarified during the initial phase of the proceedings, i.e. as soon as the parties on whom a copy of the document instituting the proceedings is served have either taken the first steps open to them or can be considered to have failed to do so on the expiry of the period within which they are required to take such steps.

60.This is supported, as the Greek Government has pointed out, by argument a contrario, by the judgment in L, where the Court held that Article 12(3)(b) of Brussels IIbis must be interpreted as meaning that jurisdiction has not been accepted where the defendant, on taking the first step required of him in the proceedings concerned, pleads the lack of jurisdiction of the court prorogation of whose jurisdiction is at issue. The Court in that case did not restrict its assessment to the time the court is seised as defined by Article 16 of Brussels IIbis, namely, the ‘time when the document instituting the proceedings … [was] lodged with the court’ but also discussed the other party’s conduct that took place three and five days later.

61.If the prosecutor in the present case has failed to act after having been duly informed of the application that represents the parents’ unequivocal acceptance of the jurisdiction of the Greek courts, he has thereby accepted implicitly in an unequivocal manner the jurisdiction of the Greek courts. If he has refrained from taking the first step open to him to intervene in these proceedings, the prosecutor cannot use his right to submit an appeal to reverse this acceptance at a later stage of the procedure.

62.In the third part of its question, the referring court asks whether the prorogation of jurisdiction is in the best interests of the child, given that Clio Margot and her parents are habitually resident in Italy, while the place of residence of the person from whom property is inherited at the time of his death was Greece and the property inherited is in Greece.

63.The wording of Article 12(3)(b) of Brussels IIbis requiring that ‘the jurisdiction … is in the best interests of the child’ may give the impression that this constitutes an additional factor that is necessary for prorogation to become effective.

64.My view is that the ‘best interests of the child’ in this context is not an autonomous factor but rather a memento as to the underlying ratio of all grounds of jurisdiction under Brussels IIbis.

65.This ratio is to be found in recital 12 of Brussels IIbis, which states: ‘The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of … an agreement between the holders of parental responsibility.’

66.That means that, as a general rule, the particular grounds of jurisdiction, such as Article 12(3) of Brussels IIbis, embody the best interests of the child. Further factors, beyond the connecting factors specified in the statutory text, are therefore not required.

67.As mentioned above, here the criterion of proximity is represented in the element of nationality. If, in addition to this, the parties to proceedings seeking leave to renounce an inheritance on behalf of a child, which is conceived to protect the child’s best interests, usually her parents, and also the prosecutor, unequivocally accept the forum Member State’s jurisdiction, then in a typical case the interests of the child not to be subject to proceedings in a State to which the child has no connection are protected.

68.That is why, as opposed to Article 15 of Brussels IIbis, Article 12(3) of Brussels IIbis does not require a comparative assessment of whether the courts of the forum Member State were better placed to hear the case than those in the Member State of the child’s habitual residence. The connecting factors provided for in Article 15 of Brussels IIbis are of a more flexible nature and less standardized so that the extent of an examination of the best interest of the child will be greater there than in the present context of Article 12(3) of Brussels IIbis. Article 15 of Brussels IIbis by its clear wording understands itself as an ‘exception’ and requires the court to take steps to transfer the jurisdiction from one court to another, which is not the case for Article 12(3) of Brussels IIbis, where jurisdiction lies ex lege without any further act on the side of the court when the preconditions of Article 12(3)(a) and (b) of Brussels IIbis are met.

Therefore, in Article 12(3)(b) of Brussels IIbis, the recurrence of the reference to the child’s best interests serves as a mere reminder to the adjudicating court not to overlook the pre-eminent criterion that underpins all the provisions of that regulation (29) and to monitor that criterion ex officio and actively, establishing all the circumstances of the specific case, (30) in order to doublecheck, in view of the overall situation, whether exceptional circumstances of that case urge the judge to exceptionally ignore the prorogation provided for in Article 12(3) of Brussels IIbis.

In an atypical case the reference to ‘the best interests of the child’ gives the judge the power and duty to correct the result of a rigid application of the relevant provision. (31)

Finally, I would also like to note that, in the context of jurisdiction, the child’s best interest does not refer to the merits of the case but only to the child’s jurisdictional interest, i.e. her interest in which country the courts are well placed to hear the case concerning the child. (32)

In the case at hand I share the Commission’s view that none of the circumstances that the referring court has mentioned require a correction but rather confirm the overall impression that the child’s best interests have been served. The fact that habitual residence may be trumped by prorogation as a result of an agreement between the holders of parental responsibility is even mentioned in recital 12 of Brussels IIbis. Moreover, in this case the jurisdiction is (tacitly) accepted by a prosecutor, who is bound by Article 21(1) of the Greek Constitution to protect the interests of children. Also, the fact that the child’s property in question in the proceedings is located in Greece is a factor that typically reinforces the child’s particular connection to that Member State. (33) Finally, in case succession proceedings concerning Michaïl Xylina take place in Greece, this would constitute an additional attachment to that Members State’s courts, which would then be in a good position to evaluate the context of the renunciation of inheritance on behalf of Clio Margot.

Taking into account these considerations, it seems to me that a correction in casu is not necessary. The overall assessment of the best interests of Clio Margot, however, is in the province of the referring court.

In the light of the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the referring court to the following effect:

Article 12(3)(b) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (‘Brussels IIbis’) is to be interpreted as meaning

(a) that the mere lodging of an application with a court of a Member State, to which the child has a substantial connection under Article 12(3)(a) of Brussels IIbis, demonstrates unequivocal acceptance by the applicants of the jurisdiction of that court,

(b) that an acceptance needs to be given also by a prosecutor who is a party to the proceedings according to the national law of the forum Member State, and that he can accept the jurisdiction of the court with which the application is lodged by acquiescence upon service of that application, and

(c) that the criterion of the ‘best interests of the child’ is not an independent element, but gives the judge the power and duty to correct the application of Article 12(3)(b) in atypical cases.

* * *

(1) Original language: English.

(2) Council Regulation of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).

(3) The referring court has explained this upon a request for clarification by the Court.

(4) The referring court has not specified whether the child has other nationalities besides the Greek one.

(5) Regulation of the European Parliament and of the Council of 4 July 2012, on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and of the creation of a European Certificate of Succession law (OJ 2012 L 201, p. 107; ‘the Succession Regulation’).

(6) Article 1(1)(b) of Brussels IIbis.

(7) Article 1(2)(e) of Brussels IIbis.

(8) Article 1(3)(f) of Brussels IIbis.

(9) See judgment of 6 October 2015, Matoušková, C‑404/14, EU:C:2015:653, paragraph 31. In paragraph 34 of that judgment, the Court held that any overlap between Brussels IIbis and the Succession Regulation and any legal vacuum should be avoided.

(10) Judgment of 6 October 2015, Matoušková, C‑404/14, EU:C:2015:653, paragraph 29.

(11) Articles 9 through 11 of Brussels IIbis provide for situations in which habitual residence has changed, Article 13 of Brussels IIbis for situations in which habitual residence cannot be established. When divorce proceedings of the child’s parents are pending Article 12(1) of Brussels IIbis allows a prorogation of that country’s jurisdiction.

(12) See Article 15 of Brussels IIbis.

(13) See Article 8(2) of Brussels IIbis.

(14) Italian law on citizenship follows the ius sanguinis principle, see Article 1(1) of the statute ‘Nuove norme sulla cittadinanza’ of 5 February 1992, point 91, published in Gazetta Ufficiale (Official Journal) no. 38 on 15 February 1992. The Court’s file does not contain any indication as to whether Clio Margot has only one nationality or whether she is a bi- or multinational. It also does not provide exact information on her parents’ nationalities.

(15) See Pfeiffer, T., Internationale Zuständigkeit und prozessuale Gerechtigkeit, 1995 p. 614 et seq.; Spellenberg, U., in: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen.

Neubearbeitung 2015, Art. 3 Brüssel IIa-VO, point 16.

16See judgment of 16 July 2009, Hadadi, C‑168/08, EU:C:2009:474, paragraphs 37 to 43.

17See e.g. Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1; ‘the Brussels Ibis Regulation’) and its predecessors - Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’) and Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36; ‘the Brussels Convention’) -, which expressly provide for an agreement. Also the Court in its judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 56, with regard to Article 12(3) of Brussels IIbis mentions that ‘an agreement, express or at least unequivocal, on the prorogation of jurisdiction’ is necessary.

18See e.g. judgments of 20 February 1997, MSG, C-106/95, EU:1997:70, paragraph 17, and of 16 March 1999, Castelletti, C-159/97, EU:1999:142, paragraph 19, both pointing out that the aim of Article 17 of the Brussels Convention allowing an agreement conferring jurisdiction was ‘to ensure that there was a real consent on the part of the persons concerned’.

19Judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 57.

20Judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 58. See also judgment of 1 October 2014, E., C‑436/13, EU:C:2014:2246, paragraph 40, holding that ‘the jurisdiction of a court in matters of parental responsibility must be verified and established in each specific case, where a court is seised of proceedings’.

21As interpreted in the order of 16 July 2015, C‑507/14, not published, EU:C:2015:512, that is, provided the applicant duly effects notification or service of the application.

22See also Salomon, D., ‚„Brüssel IIa” – Die neuen europäischen Regeln zum internationalen Verfahrensrecht in Fragen der elterlichen Verantwortung‘, Zeitschrift für das gesamte Familienrecht (FamRZ), 2004, p. 1409 et seq., at p. 1413.

23Parties becoming part of the procedure after the expiry of any period for response to service of the document instituting proceedings will however have to be excluded from the scope of ‘the parties to the proceedings’ by whom acceptance needs to be given under Article 12(3) Brussels IIbis.

24Judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 57.

25Whereas the application was made by the father of the children, on 26 October 2012, the mother made an application with the same court on 29 October 2012 and, on 31 October 2012, in the proceedings instituted by the father, she clearly stated that she did not accept the international jurisdiction (Judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraphs 19, 21, 28).

26See point 25 et seq.

27A national court that shares this view is e.g. Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany), in its order of 8 December 2009, DE:OLGD:1208.3UF198.09.0A.

28See the interpretation of Article 15 of Brussels IIbis given by the Court in its judgment of 27 October 2016, CAFA v. D., C-428/15, EU:C:2016:819, paragraph 54, cited by the Commission in the present proceedings.

29The regulation proceeds from the idea that the best interests of the child must prevail (see judgment of 11 July 2008, Rinau C‑195/08 PPU, EU:C:2008:406, paragraph 51) and come first (see judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 48).

30See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

31Pataut É./Gallant E., in: Magnus, U./Mankowski, P. (editors), European Commentaries on Private International Law, Brussels IIbis Regulation, 2017, Article 12, Point 53, qualify Article 12(3)(b) of Brussels IIbis in view of this additional examination of the child’s best interest as a forum non conveniens clause.

32See Article 15(3)(e) of Brussels IIbis where the place where the property of the child is located is mentioned as one of the factors to be considered when evaluating a particular connection of that child to a Member State in a case that concerns measures for the protection of the child relating to the administration, conservation and disposal of that property.

33See also judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

34See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

35See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

36See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

37See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

38See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

39See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

40See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

41See e.g. judgment of 12 November 2014, L, C‑656/13, EU:2014:2364, paragraph 49: ‘recourse to that prorogation cannot in any case be contrary to those best interests.’

Costs

42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

ECLI:EU:C:2025:140

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