Judgment of the Court (Second Chamber) of 9 November 2010 (reference for a preliminary ruling from the Amtsgericht Stuttgart — Germany) — Bianca Purrucker v Guillermo Vallés Pérez

(Case C-296/10) (1)

(Judicial cooperation in civil matters - Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility - Regulation (EC) No 2201/2003 - Lis pendens - Substantive proceedings relating to rights of custody in respect of a child and application for provisional measures relating to rights of custody in respect of the same child)

2011/C 13/25

Language of the case: German

Referring court

Amtsgericht Stuttgart

Parties to the main proceedings

Applicant: Bianca Purrucker

Defendant: Guillermo Vallés Pérez

Re:

Reference for a preliminary ruling — Amtsgericht Stuttgart — Interpretation of Article 19(2) 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 (OJ 2003 L 388, p. 1) — Jurisdiction of a court of a Member State to rule on the substance of an action relating to parental custody of a child who is habitually resident in that State, in a case where a court in another Member State has previously been seised, in a dispute between the same parties concerning parental custody of the same child, of an application for interim measures — Meaning of ‘court first seised’

Operative part of the judgment

The provisions of Article 19(2) 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, are not applicable where a court of a Member State first seised for the purpose of obtaining measures in matters of parental responsibility is seised only for the purpose of its granting provisional measures within the meaning of Article 20 of that regulation and where a court of another Member State which has jurisdiction as to the substance of the matter within the meaning of the same regulation is seised second of an action directed at obtaining the same measures, whether on a provisional basis or as final measures.

The fact that a court of a Member State is seised in the context of proceedings to obtain interim relief or that a judgment is handed down in the context of such proceedings and there is nothing in the action brought or the judgment handed down which indicates that the court seised for the interim measures has jurisdiction within the meaning of Regulation No 2201/2003 does not necessarily preclude the possibility that, as may be provided for by the national law of that Member State, there may be an action as to the substance of the matter which is linked to the action to obtain interim measures and in which there is evidence to demonstrate that the court seised has jurisdiction within the meaning of that regulation.

Where, notwithstanding efforts made by the court second seised to obtain information by enquiry of the party claiming lis pendens, the court first seised and the central authority, the court second seised lacks any evidence which enables it to determine the cause of action of proceedings brought before another court and which serves, in particular, to demonstrate the jurisdiction of that court in accordance with Regulation No 2201/2003, and where, because of specific circumstances, the interest of the child requires the handing down of a judgment which may be recognised in Member States other than that of the court second seised, it is the duty of that court, after the expiry of a reasonable period in which answers to the enquiries made are awaited, to proceed with consideration of the action brought before it. The duration of that reasonable period must take into account the best interests of the child in the specific circumstances of the proceedings concerned.

(1)  OJ C 221, 14.08.2010.