Provisional text

delivered on 23 March 2023 (1)

Case C-87/22

TT

other party

AK

(Request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))

( Reference for a preliminary ruling – Regulation (EC) No 2201/2003 – Articles 10 and 15 – Jurisdiction in matters of parental responsibility – Request to a court of another Member State which is better placed to hear the case to assume jurisdiction – Conditions – Court of the Member State to which the child has been wrongfully removed – Hague Convention of 25 October 1980 )

1.The Borrás report (2) states that ‘one of the risks, and perhaps the major risk, to which the child of both spouses is exposed when a marriage breaks down is being taken out of the country by one of the parents, with all the stability and protection problems which that entails’. (3) That is exactly the situation confronting us in the present case.

2.By the two questions it has referred for a preliminary ruling, the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) asks the Court about the interpretation, inter alia, of Article 15 of Regulation (EC) No 2201/2003 in the context of a dispute between two Slovak nationals, TT, the applicant in the main proceedings (‘the father’), who is resident in Austria, and AK, the defendant in the main proceedings (‘the mother’), concerning custody of their children, who are currently in Slovakia with the mother.

3.The present case thus provides the Court with the opportunity, first, to clarify the scope of Article 15 of Regulation No 2201/2003, concerning transfer to a court better placed to hear the case, and second, to address, for the first time, the issue of the interaction between that provision and Article 10 of that regulation, which concerns jurisdiction in cases of child abduction.

II. The legal framework

4.Article 1(a) of the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980 (‘the 1980 Hague Convention’) states that the object of that convention is, inter alia, ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State’.

B. European Union law

5.In addition to Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 8, 10, 11, 15 and 20 of Regulation No 2201/2003 are relevant to the present case.

III. The facts giving rise to the dispute in the main proceedings, the questions referred and the procedure before the Court

6.The father and the mother were an unmarried couple when their children, V and M, were born in Slovakia in 2012. Under Slovak law, custody of the children is joint.

7.Both parents were working in Slovakia. (5) In 2014, the family moved to Austria and the children attended a crèche and later an educational establishment in that Member State, until 2017. Subsequently, in the same year, they were educated in Slovakia, travelling between their home in Austria and the educational establishment in Slovakia on a daily basis. The children communicate with their parents and grandparents in Slovak and know only a few words of German.

8.The parents separated at the beginning of 2020. Since July 2020, the children have been living with their mother in Slovakia, without the father’s consent.

9.The father made an application for return of the children under the 1980 Hague Convention which, pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of that convention, was brought before the Okresný súd Bratislava I (District Court, Bratislava I, Slovakia).

10.At the same time, the father brought an application before the Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha, Austria) seeking, inter alia, sole custody of the two children, in which he argues that the mother, by wrongfully removing the children from Austria to Slovakia, has compromised their wellbeing and prevented them from maintaining a relationship with him.

11.The mother opposed that application by disputing the jurisdiction of the Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha) on the ground that the children’s habitual residence had always been in Slovakia and that they were not socially integrated in the location of the family home in Austria. By decision of 4 January 2021, the mother’s argument that that Austrian court lacked jurisdiction was upheld at first instance.

12.The father appealed to the Landesgericht Korneuburg (Regional Court, Korneuburg), which, by decision of 23 February 2021, varied the decision made at first instance and rejected the mother’s objection based on lack of jurisdiction.

13.By order of 23 June 2021, the Oberster Gerichtshof (Supreme Court, Austria) affirmed the decision of the Landesgericht Korneuburg (Regional Court, Korneuburg).

14.On 23 September 2021, the mother made an application to the Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha) with a view to that court making a request to a Slovak court, pursuant to Article 15(1)(b) and (2)(a) of Regulation No 2201/2003, to assume jurisdiction under Article 15(5) of that regulation. In that regard, the mother argued, first, that, in addition to the return proceedings brought under the 1980 Hague Convention before the Okresný súd Bratislava I (District Court, Bratislava I), several sets of proceedings, some brought by the father and some by herself, were pending before the Okresný súd Bratislava V (District Court, Bratislava V, Slovakia) and, second, that those courts were better placed to determine the issue of parental responsibility for the two children, given the voluminous evidence they had gathered.

15.The father opposed that application, arguing that the jurisdiction of the courts of a Member State, as provided for by Article 15 of Regulation No 2201/2003, cannot be transferred where the courts of the other Member State which are asked to assume jurisdiction have before them an application for return under the 1980 Hague Convention.

16.The Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha) granted the mother’s application. That court considered that the Okresný súd Bratislava V (District Court, Bratislava V), which had already given several decisions concerning the father’s rights of access to the children, was best placed to determine the issue of parental responsibility and rights of access in relation to the two children, who have been living with the mother in Slovakia since July 2020 and were not socially integrated in Austria. Furthermore, proceedings before an Austrian court would be more complicated because of the need to provide a sworn interpreter for all the interviews and checks in the investigations of the Austrian bodies for assistance to children and young people, and for the appointed child psychologists.

17.The father brought an appeal against that decision before the Landesgericht Korneuburg (Regional Court, Korneuburg).

18.The referring court observes that the issue relating to the interaction between Article 15(1) of Regulation No 2201/2003 and Article 10 of that regulation has not yet been decided by the Court. In that regard, it asks whether, in the case where the Member State asked to assume jurisdiction, under Article 15(1)(b) of that regulation, is the same Member State which has, in the meantime, become the habitual residence of the child following wrongful removal, jurisdiction as regards custody of that child can be transferred to a court of that Member State. That court also wonders, in the event of the Court answering that question in the affirmative, whether the conditions set out in Article 15(1) of that regulation – which, where they are satisfied, permit jurisdiction to be transferred to a court of another Member State – are exhaustive, or whether other circumstances may be taken into consideration, having regard to the details of the wrongful removal.

19.In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg), by decision of 4 January 2022, received at the Registry of the Court of Justice on 9 February 2022, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 15 of [Regulation No 2201/2003] be interpreted as meaning that a court of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?

(2) If Question 1 is answered in the affirmative:

Must Article 15 of [Regulation No 2201/2003] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under [Article 8 [first paragraph and third paragraph, point (f) of the 1980 Hague Convention]?’

20.Written observations were submitted by the parties to the main proceedings, the Slovak Government and the European Commission. Those same parties, with the exception of the Slovak Government, attended the hearing held on 12 January 2023.

21.In the situation at issue in the main proceedings, two children born in Slovakia in 2012, to unmarried Slovak parents, are currently in that Member State with their mother, without the consent of the father, who works in Austria, the Member State where the family lived in the period from 2014 until the removal of the children by their mother.

22.The circumstances of the present case call, in my view, for some clarification in the interests of a better understanding of their specific context. I would point out nonetheless that it is settled case-law that the national court alone has jurisdiction to find and assess the facts in the case before it. (6)

23.In the first place, it is apparent from the order for reference that several sets of proceedings relating, in particular, to rights of access and to maintenance have been brought by both the father and the mother before the Slovak courts. In that regard, in response to a question from the Court of Justice as to the current state of progress of those proceedings, their legal basis and the nature of the decisions, if any, given by those courts, the parties to the main proceedings confirmed that several sets of proceedings are currently pending before those courts. In so far as they may have an impact on the legal assessment of the situation at issue in the main proceedings, I will give details of those proceedings below, subject to verification by the referring court.

24.In relation rights of custody of the children, the father states that two applications were brought by the mother before the Okresný súd Bratislava V (District Court, Bratislava V) on 17 July 2020, when the custody proceedings he had brought on 15 July 2020 before the Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha) were already pending in Austria. Those proceedings related to an application for urgent provisional measures, made pursuant to Article 20 of Regulation No 2201/2003, and an application for a decision on the merits. The first application was dismissed by a decision made in interim proceedings of 14 August 2020, while the second was stayed, pursuant to Article 16 of the 1980 Hague Convention, pending a decision in the proceedings for return of the children brought by the father before the Okresný súd Bratislava I (District Court, Bratislava I). (7)

25.As regards rights of access, the father states that, by decision of 10 February 2021, the Okresný súd Bratislava V (District Court, Bratislava V) took urgent provisional measures, pursuant to Article 20 of Regulation No 2201/2003, fixing his contact with the children until conclusion of the custody proceedings (8) which had been brought before that court and subsequently stayed. (9) He stated at the hearing that, despite an injunction having been granted by way of enforcement of that order, his rights of access had not been respected by the mother, who was fined in January 2023.

26.As regards maintenance obligations, by decision of 12 February 2021, the Okresný súd Bratislava V (District Court, Bratislava V) took an urgent provisional measure pursuant to Article 14 of Regulation (EC) No 4/2009 (10) concerning the father’s obligation to pay maintenance for the benefit of the children, which applies until the conclusion of the custody proceedings brought before that court and subsequently stayed.

27.In the second place, the father observes that no Slovak court has declared itself to have jurisdiction to determine rights of access on the basis of Article 9(2) of Regulation No 2201/2003. (11) He states that all the decisions thus far taken by the Okresný súd Bratislava V (District Court, Bratislava V) have been of an urgent provisional nature and have been adopted on the basis of either Article 20 of that regulation or Article 14 of Regulation No 4/2009.

I will return to these circumstances in connection with the interpretation of Article 15 of Regulation No 2201/2003 and the interaction between that provision and Article 10 of that regulation. (12)

B. The first question referred

29.By its first question, the referring court asks, in essence, whether Article 15 of Regulation No 2201/2003 is to be interpreted as meaning that a court of a Member State which has jurisdiction to rule on the custody of a child pursuant to Article 10 of that regulation, as a court of the Member State where the child was habitually resident immediately before the wrongful removal, may, pursuant to Article 15(1)(b) of that regulation, request a court of the Member State to which that child was wrongfully removed by one of the parents, and in which that child is residing with that parent, to assume jurisdiction.

To answer that question, I will first consider whether the removal of the children at issue in the main proceedings is a wrongful removal within the meaning of Regulation No 2201/2003 (Section 1). Having regard to the fact that, proceeding on the basis of Article 20 of that regulation, the Slovak courts have taken provisional measures relating, in particular, to the father’s rights of access, I will then set out some considerations concerning the extent of the jurisdiction conferred by that provision (Section 2), before clarifying, finally, the scope of Article 15 of that regulation and the interaction between that provision and Article 10 of that regulation (Section 3).

1. Wrongful removal within the meaning of Article 2(11) of Regulation No 2201/2003

31.In order to determine whether the dispute arises out of a wrongful removal of the children, within the meaning of Regulation No 2201/2003, it is necessary to determine whether the conditions laid down in Article 2(11) of that regulation are satisfied.

32.Under Article 2(11)(a) of Regulation No 2201/2003, whether or not a child’s removal (or retention) is wrongful depends on the existence of ‘rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention’. (13) As regards the existence of rights of custody, that regulation does not determine which person must have such rights of custody as may render a child’s removal wrongful within the meaning of Article 2(11), but refers to the law of the Member State where the child was habitually resident immediately before his or her removal as regards the determination of the person who has those rights of custody. The Court has stated that whether a child’s removal is wrongful for the purposes of applying that regulation is entirely dependent on the existence of rights of custody, conferred by the relevant national law, in breach of which that removal has taken place. (14)

33.In the present case, it is apparent from the order for reference that, under the Slovak law applicable to the parents at the time the children were born, unmarried parents have joint custody of the children. In that regard, the parties to the main proceedings confirmed at the hearing, in response to a question from the Court on that point, that they had joint rights of custody under Slovak law.

34.The situation in the main proceedings is that the children were ‘removed’ by their mother from Austria to Slovakia without the father’s consent, and therefore in breach of the joint rights of custody conferred on the parents by Slovak law, as to which – as is apparent from the order for reference and the written and oral observations of the parties – no issue has been raised either by the referring court or by the Slovak courts. (15)

35.It follows that, in so far as the parents were clearly recognised as having joint rights of custody in the Member State where the children were habitually resident before their removal, namely Austria, the starting point is that the removal of the children by the mother, from that Member State to Slovakia, without the consent of the father is a ‘wrongful removal’ within the meaning of Article 2(11)(a) of Regulation No 2201/2003, which it is for the referring court to verify.

36.I would reiterate that the father stated at the hearing that the decisions taken thus far by the Okresný súd Bratislava V (District Court, Bratislava V) concerning, in particular, his rights of access, were of an urgent and provisional nature and were adopted on the basis of Article 20 of Regulation No 2201/2003. It is also said that, when that court dismissed the two applications for urgent provisional measures brought by the mother in the proceedings concerning rights of custody of the children, it based its jurisdiction on that provision.

37.Accordingly, the question arises of whether the fact that Okresný súd Bratislava V (District Court, Bratislava V) has adopted measures on the basis of Article 20 of Regulation No 2201/2003 means that that court has acknowledged itself to have jurisdiction under that regulation and, if so, whether that acknowledgment is capable of affecting its jurisdiction under Article 15 of that regulation.

38.The answer to that question is clear from the wording of Article 20(1) of Regulation No 2201/2003. Under that provision, ‘in urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter’.

The Court has already interpreted Article 20(1) of Regulation No 2201/2003 as meaning that the courts of a Member State in which the child is present are entitled, subject to the three cumulative conditions set out in that provision, to take such provisional, including protective, measures as may be available under the law of that Member State, even if that regulation confers jurisdiction as to the substance of the matter on a court of another Member State. (16) It has stated that, given that it is an exception to the system of jurisdiction laid down by the regulation, that provision must be interpreted strictly. (17) As Advocate General Bot has observed, that provision is not a criterion of general jurisdiction, but a permission to take action under the dual pressures of the child being in danger and the need for urgent action to take the child out of danger. Its effect is to enable the lex fori to be applied irrespective of any criterion of initial jurisdiction. (18) It follows that that provision is not a rule conferring jurisdiction and accordingly is not intended to confer jurisdiction as to the substance of the matter. (19) It suffices to point out, in that regard, that such measures cease to apply when the courts of the Member State having jurisdiction as to the substance of the matter, under that regulation, have taken the measures they consider appropriate. (20)

40.Consequently, in the present case, the fact that a Slovak court has taken urgent provisional measures concerning the father’s rights of access, on the basis of Article 20 of Regulation No 2201/2003, does not mean that that court has acknowledged jurisdiction as to the substance of the matter, and cannot therefore affect jurisdiction under Article 15 of that regulation.

(a) General considerations

41.I would point out, to begin with, that recital 12 of Regulation No 2201/2003 states that the grounds of jurisdiction established by that regulation in the matters of parental responsibility are shaped in the light of the best interests of the child, in particular on the criterion of proximity.

42.As regards the principle that the best interests of the child are paramount, (21) recital 33 of Regulation No 2201/2003 states that that regulation seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter. In particular, Article 24(3) of the Charter provides that every child has ‘the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests’. (22)

43.As regards the principle of proximity, it is the courts of the place where the child is habitually resident at the time the court is seised that, by reason of their geographical proximity, are generally best placed to assess the measures to be taken in the interests of the child, as provided by Article 8 of Regulation No 2201/2003. (23) However, a derogation from that jurisdictional rule is provided for by rules of special jurisdiction, in particular those contained in Articles 10 and 15 of that regulation, which I will consider below. (24)

(b) On the ground of jurisdiction in cases of child abduction, provided for in Article 10 of Regulation No 2201/2003

44.In the present case, having regard to the information given in the order for reference, the court having jurisdiction to rule on the custody of the children, pursuant to Article 10 of Regulation No 2201/2003, was the Bezirksgericht Bruck an der Leitha (District Court, Bruck an der Leitha), the court of the place where the children were habitually resident before their wrongful removal.

45.The Court has already held that the special ground of jurisdiction provided for in Article 10 of Regulation No 2201/2003 defeats what would otherwise be the effect of the application of the general ground of jurisdiction, laid down in Article 8(1) of that regulation, in a case of child abduction, namely the transfer of jurisdiction to the Member State where the child may have acquired a new habitual residence, following his or her abduction. Since that transfer of jurisdiction might secure a procedural advantage for the perpetrator of the wrongful act, Article 10 of that regulation provides that the courts of the Member State where the child was habitually resident before the wrongful removal or retention are, nonetheless, to retain their jurisdiction unless certain conditions are met. (25) The neutralising effect of that provision entails that, in the case of a wrongful removal, the only courts which have jurisdiction are the courts of the Member State where the child was habitually resident before his or her removal. Those courts retain jurisdiction even if, at a later time, the child is in a transitional or temporary situation, in which the former habitual residence has been lost, but the new habitual residence has not yet been acquired. (26)

46.The Court has also held that the abduction of a child should not, in principle, have the effect of transferring jurisdiction from the courts of the Member State where the child was habitually resident immediately before his or her wrongful removal to the courts of the Member State to which the child has been taken, even if, following the abduction, the child has acquired a habitual residence in the latter Member State. (27) It is only where the child has acquired a habitual residence in another Member State and, in addition, one of the alternative conditions set out in Article 10(b) of Regulation No 2201/2003 is also satisfied (28) that there is provision for jurisdiction to be transferred. (29)

47.In the present case, while it would seem that the children have acquired a new habitual residence in Slovakia, which it is for the referring court to verify, it is not apparent from the case file that any of the alternative conditions laid down in that provision is satisfied. (30)

48.In that context, the question arises of whether there is a hierarchical relationship between Articles 10 and 15 of Regulation No 2201/2003, such that the court which normally has jurisdiction ‘as to the substance of the matter’ may not refer it to a court ‘better placed’ if that court is a court of the Member State to which the children have been wrongfully removed by one of the parents.

(c) The scope of Article 15 of Regulation No 2201/2003

49.I would point out that Regulation No 2201/2003 draws on the 1996 Hague Convention (31) in incorporating one of its great innovations, which was to establish a ‘mechanism for dialogue between the judges [of the Member States], based on an assessment of their jurisdiction according to considerations of appropriateness’ in relation to the principle of the primacy of the best interests of the child. (32)

50.Article 15(1)(b) of Regulation No 2201/2003 thus provides that, by way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child, ‘request a court of another Member State to assume jurisdiction in accordance with paragraph 5’. (33)

51.That provision contains a rule of jurisdiction which supplements those in Articles 8 to 14 of Regulation No 2201/2003. (34) That groundbreaking rule establishes a means of cooperation under which the court of a Member State having jurisdiction ‘as to the substance of the matter’ under one of those jurisdictional rules may, by way of exception, refer the case to a court of another Member State which is better placed to hear it. (35) The provision allows for a certain amount of flexibility within the system established by that regulation where it appears that ‘the child’s best interest is that his or her protection be ensured by authorities other than those of the State of the habitual residence’. (36)

52.But which courts have jurisdiction ‘as to the substance of the matter’ under Regulation No 2201/2003?

53.

Given that Article 15(1) of Regulation No 2201/2003 refers, <i>without distinction</i>, to the courts of a Member State having jurisdiction ‘as to the substance of the matter’, pursuant to the jurisdictional rules of that regulation, those courts may be either those of the habitual residence of the child, before which the matter has been brought on the basis of Article 8 of that regulation, or one of the courts having jurisdiction under Articles 9, 10 or 12 thereof, or indeed a court before which the matter is brought pursuant to Article 13 of that regulation.

54.In that regard, I would point out that the Court has already held that Article 15 of Regulation No 2201/2003 <i>supplements the rules of jurisdiction in Articles 8 to 14 </i>of that regulation<i> by introducing a means of cooperation</i> by which a court of a Member State <i>which has jurisdiction to hear the case under one of those rules</i> may, by way of exception, transfer it to a court of another Member State which is better placed to hear the case.

55.Thus, as some commentators have rightly pointed out, ‘<i>irrespective of the basis of the jurisdiction of the court before which the matter is brought </i>pursuant to Regulation [No 2201/2003], and in spite of the efforts made in that regulation to refine and adjust the connecting factors, the regulation accepts, through Article 15, that the forum thus designated is not necessarily the best placed to rule on the substance of the matter’.

56.The Court has held, however, in the judgment in <i>IQ</i>, that the transfer mechanism in Article 15 of Regulation No 2201/2003 is not applicable between two courts which both have jurisdiction as to the substance of the matter pursuant, respectively, to Articles 8 and 12 of that regulation. Nonetheless, that interpretation relates to a different situation from that under consideration in the present case, and accordingly that judgment does not preclude the application of Article 15 of that regulation in the present case.

In any event, Article 15 of Regulation No 2201/2003 enables the court having jurisdiction ‘as to the substance of the matter’, under the jurisdictional rules of that regulation, not only to transfer the case to another court having jurisdiction as to the substance of the matter, but also to transfer it to any court of a Member State, including a court which is not regarded as having jurisdiction by any of those rules, as in the case of a transfer to the court of the Member State to which the child has been wrongfully removed, under Article 10 of that regulation.

(d) <i><b>The interaction between Article 15 of Regulation No 2201/2003 and Article 10 of that regulation</b></i>

58.In the first place, as the Commission argued in its written observations, the fact that Articles 10 and 15 of Regulation No 2201/2003 both appear in Chapter II – entitled ‘Jurisdiction’ – of Section 2 – entitled ‘Parental responsibility – of that regulation tends to indicate that Article 15 of that regulation applies even where jurisdiction is based on Article 10 thereof.

59.It is not apparent either from the wording or from the general scheme of Section 2 of Chapter II of Regulation No 2201/2003 that the possibility offered by Article 15 of that regulation is excluded where the court’s jurisdiction is based on Article 10 thereof. On the contrary, Article 15(4) and (5) of that regulation provide that, if the time limit within which the court of the other Member State is to be seised, or is to accept jurisdiction, is not complied with, the court first seised is to ‘continue to exercise jurisdiction <i>in accordance with Articles 8 to 14</i>’ of Regulation No 2201/2003 (emphasis added), which implies that the EU legislature intended that possibility to be available to a court of a Member State where the jurisdiction of that court was initially based on Article 10 of that regulation and, in default of a transfer, continues to be exercised in accordance with that article.

60.That analysis is supported by the fact that, under Article 15 of that regulation, the court having jurisdiction may decide of its own motion to make use of the transfer mechanism, albeit that, by virtue of the final part of Article 15(2) of that regulation, that initiative must be accepted by at least one of the parties.

61.In the second place, I would observe that Article 15 of Regulation No 2201/2003 confers a certain margin of discretion on the courts having jurisdiction, but only within the limits of the mechanism established by that article, which is based, as I have explained, on a spirit of cooperation between courts which does not compromise legal certainty.

62.In the third place, I would point out that the objective of Regulation No 2201/2003 of seeking to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter implies that, in accordance with Article 24(2) of the Charter, the child’s best interests must be a <i>primary </i>consideration in all actions relating to him or her, including actions taken by public authorities. Consequently, it is clear that in interpreting that regulation, those interests must be taken into account <i>first and foremost</i>. Against that background, I consider that where, as in the present case, jurisdiction as to the substance of the case is based on Article 10 of that regulation, there is no doubt that Article 15 is applicable. As the Commission has rightly observed, the object of making that provision applicable, even in a case of wrongful removal of a child, is to derogate from the general rule that the courts of the Member State where the child was habitually resident before he or she was abducted have jurisdiction, precisely so that the best interests of the child can be taken into account.

63.That having been said, in my view, the objective of seeking to ensure respect for the fundamental rights of the child, as is guaranteed by Regulation No 2201/2003 and as set out in Article 24 of the Charter, is capable of justifying two different approaches. The view could be taken, on the first approach, that, in a specific case, a transfer of the case under Article 15 of Regulation No 2201/2003 to the court of the Member State where the child has become habitually resident following a wrongful removal (or retention) is not in the best interests of the child or, on the second approach, that, <i>exceptionally, in the specific circumstances of the case</i>, a transfer to the court of the Member State where the child has become habitually resident following a wrongful removal is permissible.

64.On the other hand, in my view, respect for those interests is not compatible with the court having jurisdiction in matters of parental responsibility, under Article 10 of Regulation No 2201/2003, systematically or absolutely renouncing the use of the possibility offered by the transfer mechanism in Article 15 of that regulation, where the court ‘best placed’, by virtue of the principle of the best interests of the child, would be that of the Member State in which the child has become habitually resident following a wrongful removal. Article 15 of that regulation offers the <i>necessary flexibility </i>to enable the courts of the Member States to assume jurisdiction in specific cases, by way of derogation from Article 10 of that regulation, <i>where the transfer of jurisdiction is in the best interests of the child</i>.

65.In that regard, I would observe that the Court has held that the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, <i>having regard to the specific circumstances of the case</i>, that the envisaged transfer of that case to a court of another Member State is not liable to be detrimental to the situation of the child concerned. It has stated that, to that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation.

66.In the fourth and last place, I must say that in circumstances such as those of the present case, I share Advocate General Sharpston’s reluctance to apply baldly the principle that exceptions or derogations to a rule must be interpreted restrictively. In the case of Article 10 of Regulation No 2201/2003, while the rule that the court of the former habitual residence retains jurisdiction reflects one fundamental principle of that regulation, namely that the wrongful act of the abducting parent is not to have any legal effect, the exception reflects another fundamental principle, in that it is a jurisdictional rule shaped in the light of the best interests of the child in accordance with Article 24 of the Charter, in particular on the criterion of proximity.

67.Consequently, having regard to the wording, the general scheme and the objectives of Regulation No 2201/2003, it should be held that the possibility of transferring a case is, exceptionally, available even where the envisaged transfer is to a court of the Member State to which the child in question has been unlawfully removed, provided that the court having jurisdiction has duly satisfied itself, in the light of the specific circumstances of the case, that that transfer meets the three cumulative conditions laid down in Article 15(1) of that regulation, the primary condition being that that transfer is in the best interests in the child concerned.

Those conditions are the subject of the second question referred.

68.By its second question, the referring court asks whether the conditions set out in Article 15(1) of Regulation No 2201/2003 are exhaustive and, if so, by reference to which condition(s) an application for return of a child which has been made under the first paragraph and point (f) of the third paragraph of Article 8 of the 1980 Hague Convention, and in respect of which no definitive decision has yet been taken, ought to be considered.

69.Before analysing those conditions in order to determine whether return proceedings under that provision may be taken into account by the courts having jurisdiction in examining the application of Article 15 of Regulation No 2201/2003 (Section 2), I will set out some considerations pertaining to the rules established by that regulation and by the 1980 Hague Convention as a whole, as well as the factual background to the present application for return of children, as it appears from the order for reference and the answers to the questions posed by the Court at the hearing (Section 1).

1. <i><b>The application for return of children under the 1980 Hague Convention and Article 11 of Regulation No 2201/2003</b></i>

70.In the first place, I note that the 1980 Hague Convention contains, in Articles 8 to 11, 13 and 20, a specific procedure designed to ‘ensure [the] prompt return [of children] to the State of their habitual residence’. When, as in the dispute in the main proceedings, a wrongful removal of children takes place within the European Union, Regulation No 2201/2003 ‘complements and clarifies, in particular in Article 11, those rules of the Convention’. Because of the overlap and the close connection between the provisions of Regulation No 2201/2003 and those of the convention, the provisions of the convention may have an effect on the meaning, scope and effectiveness of the rules laid down in the regulation.

71.In the second place, I would point out that the Court has already interpreted the interaction between Article 60 and Article 62(2) of Regulation No 2201/2003, holding that ‘<i>abductions of children</i> from one Member State to another are now subject to [that body of rules], though the [rules of Regulation No 2201/2003] <i>take precedence on matters within the scope of that regulation</i>’.

72.That having been set out, it is apparent from the order for reference and the parties’ answers to the questions from the Court that, at least up to the date of the hearing, no final decision had been taken by the Okresný súd Bratislava I (District Court, Bratislava I) on the application for return of children brought before that court by the father on 3 August 2020. In that regard, the father explained that the failure of that court to make a decision within a reasonable time was due, in particular, to the suspension of the judge to whom the return application had initially been allocated, following criminal charges of malpractice, and to the fact that the return proceedings had had to be reallocated to another judge.

73.The question therefore arises of whether it is possible to have regard to those circumstances in making the concrete assessment of each of the conditions laid down in Article 15 of Regulation No 2201/2003. I will answer that question below.

74.It is clear from the wording of Article 15(1) of Regulation No 2201/2003 that the conditions laid down in that provision are listed exhaustively.

75.In that regard, the Court has already held that the transfer to a court of another Member State under Article 15 of Regulation No 2201/2003 may take place only if three conditions are satisfied, that is to say, that there is a connection between the child and another Member State within the meaning of Article 15(3)(a) to (e) of that regulation, that the court having jurisdiction as to the substance of the case considers that a court of that other Member State is better placed to hear the case and that the transfer is in the best interests of the child, in so far as it is not liable to be detrimental to the situation of the child concerned. Thus, the court of a Member State that normally has jurisdiction to deal with a given case must, if it is to be able to request a transfer to a court of another Member State, be capable of rebutting the strong presumption in favour of maintaining its own jurisdiction, on the basis of that regulation.

For the purposes of rebutting that presumption, that court cannot have regard to conditions other than those set out in Article 15 of the same regulation, which are interpreted strictly by the Court.

76.The Commission stated, in its written observations, that, in its view, the existence of an application for return under the 1980 Hague Convention, on which no final decision has been taken in the Member State to which the child has been wrongfully removed, does not, in itself, have any automatic impact on whether the conditions set out in Article 15 of Regulation No 2201/2003 are fulfilled. It stated, in response to a question posed by the Court at the hearing, that such a situation cannot be taken into account by the court having jurisdiction in assessing the first condition, relating to whether there is a particular connection between the child and another Member State. In relation to that condition, the Court has already held that cases where the factors listed, exhaustively, in Article 15(3)(a) to (e) of that regulation are lacking are immediately excluded from the transfer mechanism. In other words, such a ‘particular connection’ exists only where, as in the present case, one or more of the criteria set out in that provision are met. Accordingly, the existence of return proceedings under the 1980 Hague Convention cannot affect the assessment of those criteria.

77.The Commission added, however, that, from a factual point of view, the existence of an application for return can be taken into account by the court having jurisdiction in assessing the second and third conditions, or in other words in assessing whether there is another court which is ‘better placed’ to hear the case or part of it and whether it would be in the best interests of the child for the case to be transferred to a court of another Member State with which the child has a particular connection.

78.I agree with that approach where it concerns the taking into account of a factual matter, namely the existence of an application for return on which no final decision has yet been made.

79.As regards the condition relating to the existence of another court which is better placed to hear the case, the Court has already held that where the court having jurisdiction is minded to release the case, it must satisfy itself that the transfer is such as to provide ‘genuine and specific added value’, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before that court.

80.In the present case, it was clarified at the hearing that, if Article 15 of Regulation No 2201/2003 were to be applied, the jurisdiction of the Austrian court would be transferred not to the Okresný súd Bratislava I (District Court, Bratislava I), but to the Okresný súd Bratislava V (District Court, Bratislava V), which has already given several decisions on urgent provisional measures relating to the father’s rights of access and the children’s right to maintenance on the basis of Article 20 of that regulation and Article 14 of Regulation No 4/2009. That is therefore a relevant factor capable of supporting the view that that second court would be better placed to hear the case.

81.On the other hand, the delay of over two years in the return proceedings before the Okresný súd Bratislava I (District Court, Bratislava I) is a factor capable of supporting the view that that court is not better placed, within the meaning of Article 15(1) of Regulation No 2201/2003. In making the assessment of whether a court is better placed to hear the case, the fact that the court of the Member State to which the court having jurisdiction is minded to release the case has not yet taken a decision on the application for return of children is a factor pointing against that conclusion given that, on a temporary basis, under Article 16 of the 1980 Hague Convention, neither that court nor other courts of that Member State has taken a decision on the merits.

82.As regards the condition relating to the best interests of the child, a transfer of the case to a court which has not ensured the immediate return of the child to the State of his or her habitual residence, allowing a considerable delay to accumulate, would be contrary to those interests, as would a transfer to a court which is unable to give a judgment on the merits as to rights of custody – because Article 16 of the 1980 Hague Convention prevents it, temporarily, from taking a decision.

83.That having been said, it does not seem to me that the possibility of such a transfer can be completely excluded. The fact that the transfer that the court having jurisdiction envisages making to a court of another Member State, pursuant to Article 15 of Regulation No 2201/2003, must be in the best interests of the child means that the court having jurisdiction must satisfy itself, in the light of the specific circumstances of the case, that that transfer respects the fundamental rights of the child. Of course, Article 11(8) of that regulation does provide that ‘notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable … in order to secure the return of the child’. That means that the judgment of non-return leads to ‘conditional acceptance’ by the court having jurisdiction, which, in such a case, has the last word on the return of the child. However, even in those circumstances, the fact that the removal of the child was wrongful cannot lead to the courts having jurisdiction automatically making ‘notwithstanding’ return orders, as referred to in Article 11(8) of that regulation, without giving consideration to any circumstances which may point in favour of the child remaining in the Member State to which he or she has been wrongfully removed.

84.The court having jurisdiction must therefore make a detailed assessment of the best interests of the child, which can be seen to be essential if the child’s interests are to be taken into account and his or her fundamental rights respected. In that context, first, I would note that the principles of mutual recognition and mutual confidence which underlie Regulation No 2201/2003 imply an adequate level of cooperation and communication between the courts of the Member State where the child concerned has been wrongfully removed and those of the Member State where the child was habitually resident immediately before the removal. Second, I would emphasise that Article 15 of that regulation allows for a certain amount of flexibility within the system established by that regulation where it appears that the child’s best interest is that his or her protection be ensured by courts other than those of the State of the habitual residence.

85.Having regard to the considerations set out above, I suggest that the Court of Justice should answer the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows:

(1)Article 15 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, is to be interpreted as meaning that a court of a Member State which has jurisdiction to rule on the custody of a child pursuant to Article 10 of that regulation, as a court of the Member State where that child was habitually resident immediately before the wrongful removal, may, exceptionally, request a court of the Member State to which that child was wrongfully removed by one of the parents, and in which that child is residing with that parent, to assume jurisdiction, pursuant to Article 15(1)(b) of that regulation, provided that the court having jurisdiction has duly satisfied itself, in the light of the specific circumstances of the case, that that transfer meets the three cumulative conditions laid down in Article 15(1) of that regulation, the primary condition being that that transfer is in the best interests of the child concerned.

(2)Article 15(1) of Regulation No 2201/2003 is to be interpreted as meaning that first, the conditions laid down in that provision are exhaustive and, second, the existence of an application for return of a child under the first paragraph and point (f) of the third paragraph of Article 8 of the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980, on which no final decision has yet been taken, does not preclude the application of Article 15 of that regulation. Nonetheless, the existence of such an application is a factual matter that can be taken into account by the court having jurisdiction in assessing the conditions requiring an assessment of whether there is another court which is better placed to hear the case and whether it would be in the best interests of the child for the case to be transferred to a court of another Member State with which the child has a particular connection, as laid down in Article 15(1) of that regulation.

Original language: French.

Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, known as the ‘Brussels II’ convention, prepared by Dr Alegría Borrás (OJ 1998 C 221, p. 27; ‘the Borrás report’).

Borrás report, paragraph 40.

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).

At the hearing, the father indicated that, contrary to what is stated in the order for reference, he is working in Austria on a self-employed basis.

See, in particular, judgment of 28 October 2021, X-Beteiligungsgesellschaft (VAT – Successive payments) (C‑324/20, EU:C:2021:880, paragraph 31 and the case-law cited).

(C‑403/09 PPU, EU:C:2009:810), the Court held that that provision does not apply where one of the persons to which the provisional measures relate, for example one of the parents, is not present in the Member State in question. In contrast, Advocate General Sharpston expressed the view, in her Opinion in <i>Purrucker</i> (C‑256/09, EU:C:2010:296, point 147), that ‘it is the presence of the child alone which determines whether urgent provisional measures may be taken with respect to him or her’. Academic commentators have also regarded that interpretation of the Court as restrictive. See, in particular, Pertegás Sender, M. and Mariottini, C.M., footnote 39, op. cit., p. 279, paragraph 34. I would point out, in that regard, that Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ 2019 L 178, p. 1), which replaced Regulation No 2201/2003, did not codify that case-law. See Article 15(1)(a) and Article 27(5) of Regulation 2019/1111.

19See also the Practice Guide for the application of the Brussels II a Regulation (drawn up by the Commission in consultation with the European Judicial Network), 2015, p. 23.

20See Article 20(2) of Regulation No 2201/2003.

21See Article 3(1) of the United Nations Convention on the Rights of the Child, concluded at New York on 20 November 1989 (<i>United Nations Treaty Series</i>, Vol. 1577, p. 3): ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ All the Member States have ratified that convention.

22Article 24 of the Charter sets out two other fundamental principles of the rights of the child: that children have the right to express their views freely, in accordance with their age and maturity (paragraph 1) and that their best interests must be a <i>primary </i>consideration in all actions concerning them (paragraph 2).

23See in particular, judgments of 23 December 2009, <i>Detiček</i> (C‑403/09 PPU, EU:C:2009:810, paragraph 36), and of 14 July 2022, <i>CC (Transfer of a child’s habitual residence to a third country)</i> (C‑572/21, EU:C:2022:562, paragraph 7).

24Article 8(2) of Regulation No 2201/2003 provides that ‘paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12’.

25See, to that effect, judgment of 24 March 2021, <i>MCP</i> (C‑603/20 PPU, EU:C:2021:231, paragraph 45). See also, judgment of 1 July 2010, <i>Povse</i> (C‑211/10 PPU, EU:C:2010:400, paragraph 41).

26I would point out that, in such a transitional situation, Article 10 of Regulation No 2201/2003 also precludes the application of the subsidiary ground of jurisdiction in Article 13 of that regulation, which is based on the simple fact of the child’s presence. See, to that effect, Pataut, É. and Gallant, E., ‘Article 10’, <i>Brussels II bis Regulation</i>, <i>European Commentaries on Private International Law</i>, op. cit., p. 125, paragraph 10.

27See, to that effect, judgment of 1 July 2010, <i>Povse</i> (C‑211/10 PPU, EU:C:2010:400, paragraph 44), and order of 10 April 2018, <i>CV</i> (C‑85/18 PPU, EU:C:2018:220, paragraph 51).

28In particular, the referring court does not indicate whether the decision of the Landesgericht Korneuburg (Regional Court, Korneuburg) on exclusive rights of custody, which was affirmed on 23 June 2021 by the Oberster Gerichtshof (Supreme Court), ‘does not entail the return of the child’, within the meaning of Article 10(b)(iv) of Regulation No 2201/2003. In any event, having regard to the fact that the wrongful removal of the children took place on 8 July 2020, the condition laid down in that provision, namely that the children have been resident in Slovakia ‘for a period of at least one year’ after the father had knowledge of their removal to that country, does not appear to be satisfied, which it is for the referring court to verify. In that case, the Slovak courts would not acquire jurisdiction under that provision. See, in that regard, judgment of 1 July 2010, <i>Povse</i> (C‑211/10 PPU, EU:C:2010:400, paragraph 46).

31Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (‘the 1996 Hague Convention’). See Articles 8 and 9 (transfer of jurisdiction to an appropriate forum or requested by such a forum) of that convention.

32Gallant, E., ‘Le <i>forum non conveniens</i> de l’article 15 du règlement Bruxelles II <i>bis</i>’, <i>Revue critique de droit international privé</i>, No 3, 2017, pp. 464 to 471, especially p. 465. See also, Pataut, É. and Gallant, E., op. cit., pp. 172 to 185, especially, pp. 173 and 174, paragraphs 1 to 5.

33Article 15(5) of Regulation No 2201/2003 provides that ‘the courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.’ See also recital 13 of that regulation.

34Judgment of 19 November 2015, <i>P</i> (C‑455/15 PPU, EU:C:2015:763, paragraph 44).

35It should not be forgotten that that mechanism takes its inspiration from the doctrine of <i>forum non conveniens</i>. Nonetheless, there are differences between the two instruments. The mechanism established by Article 15 of Regulation No 2201/2003 contains, in Article 15(3), ‘a precise enumeration of the alternative jurisdictional possibilities which tends to reduce the uncertainty said to be inherent in the doctrine of <i>forum non conveniens</i>’. Those limits make it possible to ‘channel that mechanism’. See, to that effect, Ancel, B. and Muir Watt, H., ‘L’intérêt supérieur de l’enfant dans le concert des juridictions: le règlement Bruxelles II bis’, <i>Revue critique de droit international privé</i>, No 94(4), 2005, pp. 569 to 605, especially p. 595, paragraph 28.

36See the explanatory report on the 1996 Hague Convention by Paul Lagarde (‘the Lagarde report’). Proceedings of the Eighteenth Session of the Hague Convention of Private International Law (1996), Vol. II, p. 558, point 52 et seq.

37See, in particular, Ancel, B. and Muir Watt, H., op. cit., p. 595, paragraph 28. Emphasis added. See also, to that effect, Corneloup, S., ‘Les règles de compétence relatives à la responsabilité parentale’, <i>Le nouveau droit communautaire du divorce et de la responsabilité parentale</i>, actes du colloque organisé les 7 et 8 avril 2005 par le centre de droit de la famille de l’université Lyon III, Dalloz, 2005, pp. 69 to 84, especially p. 81, paragraph 16, footnote 46.

38Judgment of 19 November 2015, <i>P</i> (C‑455/15 PPU, EU:C:2015:763, paragraph 44). That interpretation is shared by the Commission, which envisages that the case may be transferred ‘when a court in a Member State … has been seised of a case … pursuant to Articles 8 to 14 of [Regulation No 2201/2003]’, see Practice Guide for the Application of the Brussels IIa Regulation, op. cit., p. 37, paragraph 3.3.4.4.

39See Ancel, B. and Muir Watt, H., op. cit., p. 595, paragraph 28. It will be recalled that Article 15(2)(b) of Regulation No 2201/2003 provides that ‘paragraph 1 shall apply of the court’s own motion’. In that regard, the final part of that paragraph provides that ‘a transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties’.

40See point 49 et seq. of and footnote 35 to the present Opinion.

48‘Where [the transfer] is in the best interests of the child’ (Article 15(1)).

49As regards Article 8 of the 1996 Hague Convention, see the Lagarde report, paragraph 53. Furthermore, that convention excludes the application of the ‘<i>perpetuatio fori</i> rule’ between the contracting parties (see paragraph 42 of the report).

50Judgment of 27 October 2016, <i>D.</i> (C‑428/15, EU:C:2016:819, paragraph 59).