VIEW OF ADVOCATE GENERAL
JÄÄSKINEN
delivered on 4 October 2010 (1)
Case C‑296/10
Bianca Purrucker
v
Guillermo Vallés Pérez
(Reference for a preliminary ruling from the Amtsgericht Stuttgart (Germany))
(Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility – Regulation (EC) No 2201/2003 – Lis pendens – Concept of ‘court first seised’ – Seising of a court in a Member State of substantive proceedings relating to rights of custody – Prior seising of a court in another Member State of an action for provisional measures concerning rights of custody in respect of the same child – Recognition and enforcement – Authority of res judicata)
I – Introduction
1. This reference for a preliminary ruling concerns the interpretation 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, (2) known as ‘Brussels II bis’.
2. The reference has been made in proceedings instituted in Germany by Ms Purrucker against Mr Vallés Pérez, concerning rights of custody in respect of their twin children M. and S. Vallés Purrucker, some elements of which are described in paragraphs 41 to 43 of the judgment in Case C-256/09 (3) (‘Purrucker I’).
3. In that judgment, in response to a question which had been referred for a preliminary ruling from the Bundesgerichtshof (Germany), the Court held that the provisions laid down in Article 21 et seq. of Regulation No 2201/2003, relating to recognition of judgments issued in another Member State, do not apply to enforceable provisional measures, relating to rights of custody, which fall within the scope of Article 20 of that regulation.
4. This case concerns the same parties and rights of custody in respect of the same children, but the Court is here requested by the Amtsgericht Stuttgart to rule on the criteria for determining the court first seised within the meaning of Article 19(2) and (3) of Regulation No 2201/2003. The importance of that determination is that it is the source of a kind of hierarchy of the courts which potentially have jurisdiction, precedence being given to the court first seised in preference to that second seised.
5. In its reference for a preliminary ruling, the referring court states that the parties to the main proceedings are in dispute as to whether the German court seised by Ms Purrucker on 21 September 2007 in order to obtain substantive measures in matters of rights of custody in respect of her son M. is the ‘court second seised’ within the meaning of Article 19(2) of Regulation No 2201/2003 in relation to the Spanish court seised, on 28 June 2007, of an action for interim relief by Mr Vallés Pérez to obtain provisional measures in matters of rights of custody, and before which substantive proceedings were subsequently brought in January 2008 on application by Mr Vallés Pérez.
6. This case demonstrates that even though the legal rules governing lis pendens as between the courts of various Member States are defined by Article 19 of Regulation No 2201/2003, that provision does not specify which types of procedural disputes fall within the scope of those provisions. The Court is, for the first time to my knowledge, called upon to rule on the concept of lis pendens, within the meaning of Article 19(2) of that regulation, where, in matters of parental responsibility, one court has been seised for the purposes of provisional measures and another court has been seised concurrently as to the substance of the matter. There is doubt, in particular, as to how the autonomous concepts contained in that regulation combine with national rules of procedure which draw a distinction between the various forms of actions seeking to obtain the granting of provisional measures and those seeking to obtain a decision as to the substance of the matter. Moreover, the referring court refers to the Court a question on the interaction between the provisions of Article 19 and those of Articles 20 and 21 of Regulation No 2201/2003.
II – Legal background
7. Before the entry into force of Regulation No 2201/2003, (4) the Council of the European Union had drawn up, by act of 28 May 1998, on the basis of Article K.3 of the Treaty on European Union, the Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters (5) (‘the Brussels II Convention’). That convention did not enter into force. Since its text was the inspiration for Regulation No 2201/2003, the explanatory report on that convention, (6) prepared by Dr A. Borrás (‘the Borrás Report’), has been called in aid to clarify the interpretation of that regulation.
8. Regulation No 2201/2003 was preceded by Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. (7) Regulation No 1347/2000 was repealed by Regulation No 2201/2003, the scope of which is broader.
9. Recitals 12 and 16 of the preamble to Regulation No 2201/2003 state:
‘(12) 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 a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.
…
(16) This Regulation should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, with regard to persons or property situated in that State.’
10. Article 1(1)(b) determines the scope of Regulation No 2201/2003 as regards parental responsibility by stating that it ‘shall apply, whatever the nature of the court or tribunal, in civil matters relating to … the attribution, exercise, delegation, restriction or termination of parental responsibility’. Paragraph 2 of that article states that those matters ‘may, in particular, deal with:
(a) rights of custody and rights of access;
(b) guardianship, curatorship and similar institutions;
(c) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
(d) the placement of the child in a foster family or in institutional care;
(e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.’
11. Under Article 2 of Regulation No 2201/2003, headed ‘Definitions’:
‘For the purposes of this Regulation:
(1) the term “court” shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1;
…
(4) the term “judgment” shall mean … a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision;
…
(7) the term “parental responsibility” shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access;
…
(9) the term “rights of custody” shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence;
…’
12. Article 8(1) of that regulation, which relates to ‘General jurisdiction’ in matters of parental responsibility, provides:
‘The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.’
13. Article 9(1) of that regulation provides for ‘Continuing jurisdiction of the child’s former habitual residence’ on the following terms:
‘(1) Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child’s former habitual residence.’
14. Article 10 of that regulation, relating to ‘Jurisdiction in cases of child abduction’, provides: ‘In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State …’
15. Article 12 of Regulation No 2201/2003 lays down the grounds for prorogation of jurisdiction, providing the opportunity, subject to acceptance by the parties, to seise a court in a Member State in which the child is not habitually resident, either because the matter is linked to ongoing proceedings seeking the dissolution of matrimonial ties or because the child has a substantial connection with that Member State.
16. Article 13 of that regulation, which relates to ‘Jurisdiction based on the child’s presence’, states:
‘(1) Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.
(2) Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.’
17. Article 14 of Regulation No 2201/2003, headed ‘Residual jurisdiction’, provides that ‘If no court has jurisdiction pursuant to Articles 8 to 13, the court may found its jurisdiction on the basis of its own national rules on private international law. Such decisions are to be recognised and declared enforceable in other Member States pursuant to the rules of the Regulation’.
18. Article 15 of that regulation states that, in certain circumstances, it is possible to make an exception to the rules of jurisdiction laid down therein where a court of a Member State with which a child has a particular connection would be better placed to hear the case.
19. Article 16 of Regulation No 2201/2003, headed ‘Seising of a Court’, provides:
‘(1) A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;
or
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’
20. Article 19(2) and (3) of Regulation No 2201/2003, which is headed ‘Lis pendens and dependent actions’, provides:
‘(2) Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
(3) Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.’
21. Article 20 of the same regulation, relating to ‘Provisional, including protective, measures’, provides:
‘(1) 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.
(2) The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.’
22. Under Article 21(1) of Regulation No 2201/2003: ‘A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
23. Article 24 of that regulation states: ‘The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14’.
III – The dispute in the main proceedings
A – Facts
24. It is clear from the order for reference, from the account of the facts in Purrucker I, and from the procedural file sent to the Court by the referring court, that in mid-2005 Ms Purrucker, who is of German nationality, went to live in Spain with Mr Vallés Pérez, who is of Spanish nationality though born in Germany. Their relationship resulted in the birth of twins who were born prematurely on 31 May 2006, M., a boy, and S., a girl. Mr Vallés Pérez acknowledged paternity. As the parents were cohabiting, they have, under Spanish law, joint rights of custody. The children have dual German and Spanish nationality.
25. The relationship of Ms Purrucker and Mr Vallés Pérez deteriorated. Mrs Purrucker wanted to return to Germany with her children, while Mr Vallés Pérez was, initially, opposed to this. On 30 January 2007 the parties signed an agreement before a Spanish notary, which had to be approved by a court in order to be enforceable, according to which Ms Purrucker was to move to Germany with the children. (8)
26. Because of health problems, S. could not leave hospital on the planned day of departure. Ms Purrucker left for Germany on 2 February 2007 with only her son M.
27. There are three sets of proceedings under way involving Ms Purrucker and Mr Vallés Pérez:
– the first, brought in Spain by Mr Vallés Pérez, concerns the granting of provisional measures. It appears that, under certain conditions, these proceedings could be regarded as substantive proceedings concerned with the award of rights of custody in respect of M. and S.;
– the second, brought in Germany by Mr Vallés Pérez, concerns the enforcement of the judgment of the Juzgado de Primera Instancia No 4 of San Lorenzo de El Escorial (Spain) (‘the Juzgado de Primera Instancia’) granting provisional measures; these are the proceedings which resulted in the judgment in Purrucker I; and
– the third, brought by Ms Purrucker in Germany, is concerned with the award of rights of custody in respect of the abovementioned children; these are the proceedings which have given rise to this reference for a preliminary ruling.
B – The three pending proceedings
1. The proceedings commenced in Spain by Mr Vallés Pérez to obtain the grant of provisional measures in relation to custody (and possibly to obtain a judgment on the substance of the matter)
28. In June 2007 Mr Vallés Pérez brought proceedings before the Juzgado de Primera Instancia to obtain the grant of provisional measures and, in particular, rights of custody in respect of M. and S.
29. By judgment of 8 November 2007 the Juzgado de Primera Instancia held that it had jurisdiction (9) and adopted urgent and provisional measures, (10) which included rights of custody in respect of the children. That judgment was the subject of a correcting decision dated 28 November 2007, paragraph 1 of the operative part being amended so as to award to the father ‘rights of custody’ and no longer ‘joint rights of custody’.
30. By order of 28 October 2008, the Juzgado de Primera Instancia stated its position on the issue of the ‘court first seised’ within the meaning of Article 19(3) of Regulation No 2201/2003. The court pointed out that it had already dealt with the issue of its jurisdiction in the judgment of 8 November 2007 and restated the various facts indicative of connection referred to in that decision. The court stated that on 28 June 2007 it had admitted the action for the grant of provisional measures relating to the custody of M. and S. Since the German court was not seised until September 2007 by the mother, the Juzgado de Primera Instancia considered that it was ‘the court first seised’ within the meaning of Article 19(2) and (3) of Regulation No 2201/2003 and declared that it had jurisdiction to hear the case in accordance with Article 16(1) of that regulation.
31. By decision of 21 January 2010, Section 24 of the Audiencia Provincial de Madrid, before which Ms Purrucker brought an appeal, upheld the order of 28 October 2008. The appeal court held that pursuant to Article 16 of Regulation No 2201/2003, the first action was the action to obtain provisional measures brought in accordance with Spanish law before the Juzgado de Primera Instancia, prior to the action brought before the German court. The Audiencia Provincial de Madrid considers, on the other hand, that Article 20 of the Regulation, relied on by the appellant, while it was applicable to the case before the court, does not lay down any rule on the subject of jurisdiction and is concerned solely with protective measures to be adopted exclusively in cases of urgency, whereas jurisdiction, which was the matter at issue in the case before the court, is determined pursuant to the rules laid down in Article 19 of that regulation.
2. The proceedings commenced in Germany by Mr Vallés Pérez in order to obtain enforcement of the judgment of 8 November 2007 delivered by the Spanish court
32. These are the proceedings which gave rise to the judgment in Purrucker I. Mr Vallés Pérez initially requested, inter alia, the return of his son M. and brought, as a precautionary measure, an action for a declaration that the judgment delivered on 8 November 2007 by the Juzgado de Primera Instancia was enforceable. Next, he sought, as a matter of priority, the enforcement of that judgment. Consequently, the Amtsgericht Stuttgart, by a decision of 4 July 2008, and the Oberlandesgericht Stuttgart, by a decision on appeal of 22 September 2008, ordered enforcement of the judgment of the Spanish court.
33. Following an appeal brought by Ms Purrucker, the Bundesgerichtshof referred a question to the Court of Justice for a preliminary ruling. The answer given by the Court in Purrucker I was that the provisions of Article 21 et seq. of Regulation No 2201/2003, concerning the recognition of judgments delivered in another Member State, do not apply to provisional measures, in relation to rights of custody, falling within the scope of Article 20 of that regulation.
3. The proceedings commenced in Germany by Ms Purrucker in order to obtain rights of custody
34. On 21 September 2007, in other words, before delivery of the aforementioned judgment of the Juzgado de Primera Instancia, Ms Purrucker brought substantive proceedings before the Amtsgericht Albstadt (the local court in Albstadt, Germany) seeking the award to herself of sole rights of custody in respect of M. and S. Notice of that action was not served on Mr Vallés Pérez until 22 February 2008 by registered mail with recorded delivery. However, both he and the Spanish court already had prior knowledge of that action.
35. It is apparent in particular from the decisions of 25 September 2007 and 9 January 2008 of the Amtsgericht Albstadt that, in the opinion of that court, Ms Purrucker’s action could not succeed. Since the parents were not married to each other and ostensibly there was no declaration of joint rights of custody, given that the non-approved instrument of 30 January 2007 signed before a notary could not be interpreted as constituting such a declaration, Ms Purrucker had exclusive rights of custody in respect of the children, with the result that a decision to award rights of custody was not necessary. Further, the Amtsgericht Albstadt referred to the proceedings pending in Spain.
36. By partial judgment of 19 March 2008 the Amtsgericht Albstadt dismissed the action, on grounds of lack of jurisdiction, in so far as it related to S. That decision was upheld on 5 May 2008 by the Oberlandesgericht Stuttgart.
37. By a separate judgment dated 19 March 2008, the Amtsgericht Albstadt stayed its proceedings in relation to rights of custody under Article 16 of the Convention on the Civil Aspects of International Child Abduction [which] was signed on 25 October 1980 within the framework of the Hague Conference on private international law (‘the 1980 Hague Convention’). (11) Those proceedings were resumed on 28 May 2008 at the request of Ms Purrucker because, at that date, Mr Vallés Pérez had not submitted any application for return on the basis of the Hague Convention. No application has been submitted since that date.
38. Because of the action brought by M. Vallés Pérez seeking enforcement of the judgment of 8 November 2007, the proceedings relating to rights of custody were assigned to the Familiengericht (Family Court) of the Amtsgericht Stuttgart (Germany), in accordance with Article 13 of the German Law on the enforcement and application of various legal instruments on international family law (Gesetz zur Aus‑ und Durchführung bestimmter Rechtsinstrumente auf dem Gebiet des internationalen Familienrechts, ‘the IntFamRVG’).
39. On 16 July 2008 Ms Purrucker brought before the Amtsgericht Stuttgart, on the basis of Article 20 of Regulation No 2201/2003, an action seeking the grant of a provisional measure awarding her exclusive custody in respect of her son M., or, alternatively, the exclusive right to determine that child’s place of residence.
40. It is clear from the procedural file sent to the Court by the referring court that the German judge was assiduous in his attempts, without success, to establish contact with the Spanish court which had already adopted provisional measures in that case, to discover whether substantive proceedings were pending in Spain.
41. On 28 October 2008, the Amtsgericht Stuttgart issued a judgment in which it set out the steps taken through the Spanish liaison magistrate and the lack of response from the Juzgado de Primera Instancia. The court asked the parties to provide it with information, supported by evidence, of, first, the date of the application for provisional measures by the father in Spain, second, service of the decision of the Spanish court of 8 November 2007 and, third, the lodging of an action to initiate substantive proceedings by the father in Spain and the date of service of that action on the mother.
42. On the same date, 28 October 2008, the Juzgado de Primera Instancia delivered the decision the content of which is described in point 30 above.
43. After inviting the parties again to state their views, the Amtsgericht Stuttgart delivered a judgment on 8 December 2008. It made reference to the judgment of 28 October 2008 of the Juzgado de Primera Instancia and to the appeal to be brought by Ms Purrucker against the latter judgment. The Amtsgericht Stuttgart considered that it could not itself give a ruling on the issue of the ‘court first seised’ because it would compromise legal certainty if two courts of different Member States were able to hand down contradictory judgments. In its view, the issue had to be resolved by the court which was the first to declare that it had jurisdiction. Consequently, the Amtsgericht Stuttgart stayed its proceedings in accordance with Article 19(2) of Regulation No 2201/2003 until the judgment of 28 October 2008 of the Juzgado de Primera Instancia acquired the authority of res judicata.
44. Ms Purrucker brought an appeal against the judgment of the Amtsgericht Stuttgart. On 14 May 2009 the Oberlandesgericht Stuttgart set aside that judgment and referred the case back to the Amtsgericht Stuttgart for reconsideration. The Oberlandesgericht Stuttgart held that a court is bound to assess its own jurisdiction and that Article 19 of Regulation No 2201/2003 does not confer on any of the courts which are seised exclusive jurisdiction to decide which court was first seised. The Oberlandesgericht Stuttgart observed that the application for rights of custody brought in Spain in June 2007 by Mr Vallés Pérez formed part of proceedings brought for the granting of provisional measures, whereas the application for rights of custody brought in Germany on 20 September 2007 by Ms Purrucker was an action relating to the substance of the matter. Such an action and proceedings to obtain provisional measures were concerned with different legal issues or different claims. If necessary, the existence of a positive conflict of jurisdiction between two courts should be recognised.
45. By an order dated 8 June 2009 the Amtsgericht Stuttgart again asked the parties what stage had been reached in the proceedings commenced in Spain and invited their views on the possibility of referring to the Court of Justice a preliminary question on how the court first seised was to be determined, in accordance with Article 104b of the Court’s Rules of Procedure.
46. On 21 January 2010 the Audiencia provincial de Madrid ruled on the appeal brought by Ms Purrucker in the judgment referred to in point 31 above. Notice of that judgment was sent to the Amtsgericht by means of a letter sent by the German lawyer of Mr Vallés Pérez.
IV – The reference for a preliminary ruling
47. By an order dated 31 May 2010 and lodged on 16 June 2010, (12) the Amtsgericht Stuttgart decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 19(2) of Regulation [No 2201/2003] applicable if a court of a Member State first seised by one party to resolve matters of parental responsibility is called upon to grant only provisional measures and a court of another Member State subsequently seised by the other party of an action with the same object is called upon to rule on the substance of the matter?
(2) Is [Article 19(2)] also applicable if a ruling in the isolated proceedings for provisional measures in one Member State is not capable of recognition in another Member State within the meaning of Article 21 of Regulation No 2201/2003?
(3) Is the seising of a court in a Member State for isolated proceedings for provisional measures to be equated to seising as to the substance of the matter within the meaning of Article 19(2) of Regulation No 2201/2003 if under the national rules of procedure of that State a subsequent action to rule on the substance of the matter must be brought before that court within a specified period in order to avoid adverse procedural consequences?’
48. In support of its request for a preliminary ruling, the referring court states that it considers that there is no reasonable doubt that the son of the parties, M., was habitually resident in Germany on 21 September 2007, that is the date when Ms Purrucker brought her application that rights of custody be awarded to her.
49. According to that court, the Juzgado de Primera Instancia did not have, on the basis of Article 10 of Regulation No 2201/2003, a continuing jurisdiction until 21 September 2007 because the family members had previously had their joint habitual residence in Spain, since it is neither probable nor proven that the removal of the son of the parties by Ms Purrucker from Spain to Germany was wrongful.
50. The Amtsgericht Stuttgart states that, under Article 16 of Regulation No 2201/2003, a court is to be deemed to be seised at the time when the document instituting the proceedings is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent.
51. The referring court points out that the application of 20 September 2007 was lodged on 21 September 2007, but notice was not served on Mr Vallés Pérez until 22 February 2008, for reasons which involve no fault on the part of Ms Purrucker, being linked to the dispute, in the context of the legal aid proceedings, concerning the international jurisdiction of the court to adopt measures relating to rights of custody in respect of the daughter of the parties, S., living in Spain.
52. The Amtsgericht states that Article 19(2) of Regulation No 2201/2003 provides that a Member State court which is first seised of an action relating to parental responsibility for a child has priority of jurisdiction over the court of another Member State subsequently seised of proceedings which have the same cause of action (‘le même objet et la même cause’). It considers that the object of the dispute (‘objet’) which gave rise to the bringing, in June 2007, of proceedings before the Spanish court to obtain provisional measures is identical to that which gave rise to the substantive proceedings brought before the German court in September 2007. The object of both sets of proceedings is an application to a court seeking to obtain measures in relation to parental responsibility for the same child of the two parents. In both proceedings, the parties are identical and each party seeks, in each case, the award of sole custody in his or her favour.
53. The referring court states that an assessment of whether particular proceedings have priority in time is to be made under Article 16 of Regulation No 2201/2003. It observes however that since the wording of that provision makes no distinction between substantive proceedings and proceedings for interim relief which are designed to obtain the grant of provisional measures, various views of the law with regard to the scope of Article 19(2) of Regulation No 2201/2003 can be taken.
54. It is apparent from the view of the law taken by the Juzgado de Primera Instancia and by the Audiencia Provincial of Madrid that a Spanish court is deemed to be seised, within the meaning of Articles 16 and 19(2) of Regulation No 2201/2003, when an application for interim measures is brought. Proceedings for interim relief, together with substantive proceedings brought subsequently, constitute one procedural unit. An interim relief order ipso jure ceases to have effect if no substantive proceedings are brought within 30 days following service of the order.
55. According to that view, the proceedings relating to rights of custody in respect of the son of the parties, M., were before the Spanish court, for the purposes of Article 19(2) of Regulation No 2201/2003, not as from January 2008, but as from 28 June 2007.
56. On the other hand, according to considerable German academic writing and the order of the Oberlandesgericht Stuttgart of 14 May 2009, Article 19(2) of Regulation No 2201/2003 is not concerned with the relationship between substantive proceedings and proceedings for interim relief since those proceedings have different objects, even though a decision awarding custody of a child issued in proceedings for interim relief has effects identical to a substantive decision awarding custody. That view is, inter alia, also supported by the fact that Article 21 et seq. of Regulation No 2201/2003 do not apply to provisional measures, within the meaning of Article 20 of that Regulation.
57. The Amtsgericht Stuttgart adds that the confirmation by the Audiencia provincial de Madrid, which acquired the authority of res judicata on 21 January 2010, that the Juzgado de Primera Instancia has international jurisdiction and is the court first seised cannot justify the finding, pursuant to Article 19(3) of Regulation No 2201/2003, that ‘the jurisdiction of the court first seised is established’. That judgment is not binding on the German court, since Regulation No 2201/2003 does not provide for such binding effect. If the contrary were the case, that would encourage a ‘race’ between courts for priority of jurisdiction and its outcome would depend on the circumstances and specific features of national procedural law. Nor is it possible to recognise the decision for the purposes of Article 21 of Regulation No 2201/2003, because it is not a judgment as to the substance of the matter relating to parental responsibility but only a decision on a procedural matter.
58. According to the referring court, the prohibition of review of the jurisdiction of the court of the Member State of origin, in accordance with Article 24 of Regulation No 2201/2003, applies only when a judgment as to the substance of the matter has been delivered. That principle stems from the fact that that provision is to be found in Chapter III, Section 1, of Regulation No 2201/2003 concerning the recognition of judgments. However, the Spanish court has not yet delivered a judgment as to the substance of the matter.
59. Moreover, any recognition, under Article 21 of Regulation No 2201/2003, of the provisional order on rights of custody issued by the Juzgado de Primera Instancia on 8 November 2007 cannot simply be extended to a subsequent judgment as to the substance of the matter.
V – Procedure before the Court
60. In the order for reference, the Amtsgericht Stuttgart asked that an accelerated procedure under Article 104b of the Court’s Rules of Procedure be applied to the reference for a preliminary ruling. By letter of 1 July 2010 the Amtsgericht Stuttgart clarified its request and stated that it sought the application not of Article 104b of the Rules of Procedure, but rather of Article 104a of those rules.
61. By order of 15 July 2010 the President of the Court granted the request for an accelerated procedure.
62. In the present case, Ms Purrucker, the Czech, German, Spanish and French Governments and the European Commission presented both oral and written observations. The UK Government submitted only written observations.
63. In circumstances as essentially described by the referring court, namely a case where an initial action seeking to obtain provisional measures is concurrent with a subsequent action as to the substance of the matter concerning the same child, those parties who have submitted observations agree as a whole that provisional measures requested on the basis of Article 20 of Regulation No 2201/2003 cannot give rise to the situation of lis pendens provided for in Article 19 of Regulation No 2201/2003.
64. With regard to measures taken by a court having jurisdiction which fall outside the scope of Article 20, there are two conflicting sets of proposals, in my view. On the one hand, Ms Purrucker, Germany, the United Kingdom and the Commission support the argument that there is no possibility of lis pendens in the situation envisaged, since the action for provisional measures does not have the same objective as an action for a decision as to the substance of the matter, even though both may have the same subject-matter, such as the award of custody of a child. On the other hand, the Czech Republic, Spain and France consider that Regulation No 2201/2003 makes no distinction based on the nature of the proceedings in which an action is brought and therefore that proceedings to obtain provisional measures may give rise to lis pendens in the same way as substantive proceedings.
VI – Analysis
A – Preliminary remarks
1. The links between the authority of res judicata and lis pendens
65. As regards the factors which are relevant to the answer to be given by the Court to the questions referred, it is first necessary, in my view, to clarify how certain key elements are related.
66. The principal objective of the provisions on lis pendens is to prevent decisions having contrary or even incompatible effects (13) from being delivered by the courts of several Member States. (14) Consequently the concepts of lis pendens and the authority of res judicata are closely related. (15)
67. In the context of relations between different legal systems, international lis pendens resulting from on-going proceedings outside national territory and the authority of res judicata of a decision delivered by a foreign court are linked to the issue of the recognition of judgments. Given that a decision of foreign origin can have the authority of res judicata within a legal system only if it is recognised, proceedings initiated abroad are capable of giving rise to lis pendens only where they may lead to a decision capable of recognition within the legal system of the court second seised. (16)
68. The link between lis pendens and the authority of res judicata also stems from the fact that a decision that has acquired the authority of res judicata with respect to the dispute which it settles prevents further adjudication on the same matter in other proceedings, either between the same parties or in a more general way. (17) That consequence, regarded as the negative dimension of the authority of res judicata, is linked to the ne bis in idem principle, which is a general principle of law that is recognised universally.
69. The positive dimension of the authority of res judicata is, for its part, derived from the essential aim and function of the courts which is to settle disputes between opposing parties with a view to providing an authoritative solution to litigation relating to the legal relationship at issue. That means that a decision which has acquired the authority of res judicata must be taken into account as being binding in other administrative or judicial proceedings.
70. The positive and negative dimensions of the authority of res judicata of a decision must be analysed from both a subjective and an objective point of view. The subjective effect of a decision may be limited solely to the relationship between the parties. That concerns, in particular, civil judgments which are simply declarative in nature, in that they merely confirm the pre-existing rights and obligations of the parties, on the basis of the legal relationship between them, and draw the conclusions which follow from this. On the other hand, judgments creating rights may have a broader subjective scope, in so far as they create new legal relationships or modify pre-existing legal relationships.
71. Decisions relating to parental responsibility usually create rights, since they grant or modify rights relating to parental responsibility. It follows that such decisions may have the authority of res judicataextra partes and not only between the parties. For example, a judgment which grants rights of custody in respect of a child exclusively to the mother binds administrative and judicial authorities as regards the legal representation of the child.
72. However, decisions issued in this field do not usually have the negative effect of the authority of res judicata. In other words, the granting of or the arrangements for the exercise of parental responsibility may generally be reviewed by a court having jurisdiction in fresh proceedings and this cannot be precluded by a decision which has become legally binding. As Advocate General Sharpston stated in Purrucker I, (18) decisions on parental responsibility can only ever be more or less ‘firm’. The interests of the child, which is the principal guideline in the matter, require that decisions concerning the child may be amended where appropriate.
73. Lis pendens is justified by the positive effect of the authority of res judicata of the judgment to be delivered by the court first seised. In so far as that judgment is capable of recognition within the legal system of the court second seised, it precludes the adoption of a contrary or even incompatible judgment by the latter if the court second seised fails to give its ruling before the court first seised. However, in cases where the court second seised does give its ruling before the court first seised, the obligation to recognise the decision issued by the latter would be rendered meaningless. In accordance with the general principle of perpetuatio fori, the rule of lis pendens that chronological precedence must be given to the court first seised is the approach most compatible with the rule of the authority of res judicata concerning foreign judgments capable of recognition. That approach takes into account that the procedural consequences stemming from the seising of a court commence as soon as it is seised and continue until the end of the proceedings brought before that court.
74. Like the authority of res judicata, lis pendens must also be analysed from both a subjective perspective and an objective perspective. In spite of the differences in terminology between the language versions of Regulation No 2201/2003, the wording of Article 19(2) seems to me to require that for lis pendens to arise with respect to two actions there must be both:
– identical subject matter (the same child),
– identical objective and cause (‘the same cause of action’). (19)
75. With regard to its subjective dimension, lis pendens, like the authority of res judicata, is normally restricted to actions concerning the same parties. However, unlike that of several other provisions with which it may reasonably be compared, (20) the wording of Article 19 of Regulation No 2201/2003 does not require the parties to be identical in proceedings relating to parental responsibility, but only that such proceedings concern the same child. In the light of what I have said in relation to the extended authority of res judicata of judgments creating rights, the category to which decisions on parental responsibility usually belong, that seems quite logical to me. Accordingly, a decision following proceedings initiated between the parents of a child before a court of Member State A awarding exclusive rights of custody to the father is incompatible with a decision of a court of Member State B awarding rights of custody in respect of the child to the maternal grandmother following proceedings between the latter and both parents. Given that Article 19(2) of Regulation No 2201/2003 seems to require only that the proceedings should concern the same child, with regard to the subjective element of lis pendens in that matter, I am of the view that those two concurrent proceedings fall within the rule set out in that Article.
76. With regard to the identical objective and cause, the scope of lis pendens must be determined on the basis of the same considerations as the objective scope of the authority of res judicata, that is to say in the light of the need to avoid contradictory decisions.
77. In the field of parental responsibility, the decisive criterion should be the practical enforceability of a decision. Where actions brought before different courts may result in decisions which cannot be complied with by the parties or enforced simultaneously, those two actions are identical as regards their objectives and causes and therefore there is lis pendens.
78. In principle, where lis pendens is established a court must find that an action is inadmissible or that the proceedings must be stayed, and do so of its own motion. However, a court cannot be obliged itself to ascertain the existence of other proceedings or, where appropriate, another judgment relating to the same subject-matter as the action brought before it. The usual means of pleading lis pendens or the authority of res judicata is an objection of inadmissibility raised by a defendant. When examining such an objection, the court must necessarily consider the jurisdiction of the two courts in question. It must, at least in a preliminary way, identify whether there is a potential ground of jurisdiction on the basis of which the court first seised could adopt a decision capable of being recognised. The most obvious method available to it is to compare the applications instituting the two sets of proceedings brought or the other documents relating to those proceedings. It may also request from the parties any relevant information, or even approach the foreign court concerned, either directly or through the central authority of the Member State in which that court is established.
2. Conflicting proceedings or judgments
79. It seems necessary to me to draw a clear distinction between the three situations which may exist where the issue of conflicting proceedings or judgments arises, and to do so in chronological order.
80. First, a plea of international lis pendens may be raised where a conflict arises between several sets of proceedings pending before the courts of different Member States. The present case is one such situation, since the referring court is called upon to determine whether, when the German court was seised, proceedings were already pending before a court in another Member State, namely in Spain, before the Juzgado de Primera Instancia. I would point out that lis pendens ends when one set of proceedings is concluded, for whatever reason. That may arise not only if one of the two ‘rival’ courts has given a ruling, but also if the action pending before one of them is terminated for any reason: discontinuance, settlement, dismissal for failure to take action, death of a party where a right of action is inalienable, etc.
81. Secondly, a conflict may exist between ongoing proceedings in one Member State and a decision already delivered in another Member State. In that case, the authority of res judicata must lead the court before which an action is pending to declare that that action is inadmissible on the ground that it has become devoid of purpose if the foreign judgment is capable of recognition.
82. Thirdly, there may be a conflict between decisions taken in different Member States, following, by definition, an overlapping of jurisdictions. Even if common rules on recognition and enforcement make it possible to ensure that the effects of one prevail over those of the other, by respecting the rights acquired by one party in one of the Member States, both the judgments issued will nonetheless continue to exist. It is at that stage of the dispute between the parties to the main proceedings that a question was referred to the Court in Case C-256/09, known as Purrucker I.
83. The purpose of the rules on international lis pendens is twofold, in my view. As I have already stated, they seek primarily to prevent a positive conflict of decisions. Indeed, where parties bring actions having the same cause of action (the same ‘objet’ and the same ‘cause’) and concerning the same child before the courts of different Member States, that situation is liable to give rise to decisions which are difficult to reconcile, or even diametrically opposed, and therefore creates legal uncertainty for individuals. The solution lies in the obligation on the court last seised to decline jurisdiction in favour of the court previously seised, before parallel decisions are even delivered.
84. Those rules also seek to prevent the parties from gaining an improper advantage from the multiplicity of judicial systems by engaging in forum shopping, which consists in a party bringing an action before a court of another Member State when he feels that there is a risk that the court first seised may deliver a decision contrary to his claims. I note that the risk of forum shopping is limited in the light of the rules of jurisdiction concerning parental responsibility which are laid down by Regulation No 2201/2003, (21) since the criterion of principal connection, namely the child’s place of habitual residence, makes it difficult to engage in fraudulent manoeuvres, other than resorting to a series of moves for a period of sufficient length to acquire habitual residence.
85. As set out in the Practice Guide for the application of Regulation No 2201/2003 (22) and the Commission’s proposal which led to the adoption of that regulation, (23) the Commission took the view that cases of actual lis pendens would be rare in matters of parental responsibility, in so far as a child is generally habitually resident in a single Member State in which the courts have jurisdiction under the general rule of jurisdiction set out in Article 8 of that regulation. However, in my view it must not be overlooked that there are circumstances in which a child’s place of habitual residence is difficult to determine (24) or in which the place of habitual residence is outside the territory of the Union, (25) which may result in the courts of several Member States declaring that they have jurisdiction at the same time.
86. The referring court correctly observes that by retaining the ground of jurisdiction connected with a child’s place of habitual residence, the Union legislature has allowed several courts to have jurisdiction as to the same facts, albeit relating to different children. I would point out that in order for there to be lis pendens within the meaning of Article 19(2) of Regulation No 2201/2003, the concurrent actions must relate to one and the same child, without regard to the siblings as a whole in that respect. (26) In this case, the legal treatment of the two children in question, although they are twins, must be understood in a different way in so far as their individual situations are dissimilar, in particular in that they live separately. Accordingly, the German courts declared that they lacked international jurisdiction to rule on the action for sole custody brought by Ms Purrucker, (27) in that it concerned S., given that that child had been resident in Spain since birth, whereas they retained their jurisdiction over child M.
B – The interpretation of Article 19(2) of Regulation No 2201/2003
87. By its first question, the referring court asks, in essence, whether the provisions of Article 19(2) of Regulation No 2201/2003, concerning lis pendens in matters of parental responsibility, are applicable if the court of a Member State was first seised by one party in proceedings for the granting of measures solely of a provisional nature, while the court of another Member State subsequently seised by the other party in the same cause of action is called upon to rule on the substance of the matter.
88. I would like to state from the outset that it seems proper to me to consider that question together with the two other questions referred to the Court. Indeed, they are connected to it by a strong causal link such that the answer which I consider must be given to the first question means that no answer need be given to those following.
1. The scope of the interpretation sought
89. In my view, the approach adopted by the Court to the matters of fact, procedure and law specific to the main proceedings must be neutral, objective and dispassionate. The facts in this case, however specific or tragic they may be, cannot determine the approach to be adopted. In particular, the fact that the first instance Spanish court may have lacked jurisdiction in the light of the criteria laid down by Regulation No 2201/2003 should not have an influence which would undermine the fundamental principles which are set out in that regulation, such as the mutual trust (28) which underpins the recognition of judgments delivered in other Member States. (29)
90. Moreover, the answers given to the referring court must be able to cover all actions falling with the scope of ‘parental responsibility’ within the meaning of Regulation No 2201/2003. I would point out that Article 2(7) of that regulation defines parental responsibility as ‘all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access’.
91. Article 1(1)(b) of Regulation No 2201/2003 provides that that regulation ‘shall apply, whatever the nature of the court or tribunal, in civil matters [(30)] relating to the attribution, exercise, delegation, restriction or termination of parental responsibility’. Article 1(2) states that those matters ‘may in particular, deal with:
(a) rights of custody and rights of access;
(b) guardianship, curatorship and similar institutions;
(c) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
(d) the placement of the child in a foster family or in institutional care;
(e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property’.
92. In my view, there can be a risk of conflicting proceedings, and therefore lis pendens, only as between actions covered by the same heading of parental responsibility, and not as between two or more of those five headings. (31) However, within certain legal systems, a single measure may ex lege include several aspects of parental responsibility which are cited in that article. (32)
93. It clearly follows from those provisions that proceedings in matters of ‘parental responsibility’ within the meaning of Regulation No 2201/2003 may relate both to very different parties and to very different claims from the action brought before the referring court in the present case, namely the custody of a child sought by its parents. In that regard, I would point out, first, that the holder of parental responsibility may be a natural person other than the father or mother, and even a legal person, secondly, that the concept of ‘civil matters’ has been broadly defined by the Court, (33) thirdly, that the list of matters defined as falling within the scope of ‘parental responsibility’ is not exhaustive and, fourthly, that the relevant protective measures may relate both to a child’s person and to his property. (34) It is essential not to lose sight of the wide variety of actions which may be covered by the interpretation of Articles 19 and 21 of that regulation when the Court gives its ruling on the questions referred.
94. That variety of relevant actions also has an effect on the meaning of lis pendens in matters of parental responsibility, as provided for by Article 19(2) of Regulation No 2201/2003, since it follows that many types of conflicting proceedings are conceivable in that field. To give just a few empirical illustrations of the possible combinations, I shall refer, first, to proceedings which are brought before a children’s court for the purpose of placement of a minor at the same time as proceedings instituted before a family court seeking the grant of rights of access to that child’s grandparents; secondly, an action for interim relief seeking a provisional transfer of rights of custody pending the outcome of social or psychological investigations, whilst an action concerning the same child has the purpose of definitively challenging the rights of access granted to one of the parents. It is therefore essential to define the concept of the ‘same cause of action’ (le même objet et le même cause) which determine the limits of lis pendens within the meaning of that provision.
2. Overall guidelines for interpretation
95. Certain legal instruments which were or still are applicable between the Member States may be useful in the context of interpreting the provisions of Regulation No 2201/2003. (35) That is the case with, amongst other instruments, (36) the Brussels Convention of 27 September 1968, (37) known as ‘Brussels I’, and Regulation No 44/2001 of 22 December 2000, which replaced Brussels I on 1 March 2002. (38) Similarities exist, in particular with regard to the concept of lis pendens. (39) However, parental responsibility within the meaning of Regulation No 2201/2003 is concerned with the status of persons, a matter expressly excluded from the other two provisions. The approach adopted in matters of property does not necessarily apply in non-property matters, given the differences which exist as regards the nature and effects of the decisions taken in those two fields and as regards the guiding principles applicable to them. Indeed, the precepts underlying Regulation No 2201/2003, such as the pre-eminence granted to the best interests of the child in matters of parental responsibility, (40) shed a particular light, in view of which the guidance for interpreting a concept such as lis pendens may differ from the guidance given in connection with other instruments.
96. Moreover, I note that although the decisions of the Court on the interpretation of the Brussels Convention of 27 September 1968 cover the concepts of lis pendens and provisional measures, to my knowledge, they do so only separately and not in combination, that is to say without ruling on lis pendens in the case of decisions adopting provisional measures. In the case-law of the Member States, it likewise seems there is nothing of significance, in particular in the light of the lack of responses at the hearing to the question expressly raised by the Court in that regard.
97. In my view, the concept of lis pendens within the meaning of Regulation No 2201/2003 must be interpreted independently, (41) that is to say by reference not to the prevailing views in a particular Member State, but, first, to the objectives and scheme of the regulation and, secondly, to the general principles which stem from the corpus of the national legal systems. (42) It seems to me that the same must apply to all the independent concepts which are contained in Regulation No 2201/2003.
98. It is possible to take the view that procedural concepts such as that of ‘court first seised’ should be governed by national rules. However, in that regard, Regulation No 2201/2003 sought to create a common system transcending specific national characteristics. Accordingly, Article 16 of that regulation standardises, by defining its procedural and temporal characteristics, the concept of seising of a court. It lays down when and under what circumstances the seising of a court takes place, irrespective of the provisions of the applicable domestic rules in the Member States. The legislature seems to me to have departed from the case-law relating to the Brussels Convention of 27 September 1968 (43) by establishing a rule of European Union law which identifies the point at which a court is seised, by reference to the date on which the document instituting the proceedings is either lodged with the court or received by the authority responsible for service. (44) The choice between those two alternatives depends on the procedures concerning the seising of a court laid down by national law.
99. The interpretation of Article 19 of Regulation No 2201/2003 must, first, (45) be carried out in the light of the wording of that provision and of the provisions surrounding it. In that regard, I note that no distinction is drawn, with regard to lis pendens as referred to in Article 19, between seising a court as to the substance of the matter and seising a court to obtain the granting of provisional measures. Similarly, Article 16 of that regulation makes no distinction of that nature.
100. The concept of interim relief does not exist as such in Regulation No 2201/2003, which refers only to measures taken for reasons of ‘urgency’. (46) However, express reference is made to jurisdiction as to the ‘substance of the matter’ in Article 15, concerning transfer to a court better placed, and Article 20 refers to provisional, including protective, measures taken in urgent cases.
101. The concept of provisional measures, which may be taken either in the context of Article 20 where the conditions that it lays down are met, or otherwise outside the scope of that article, is not clearly defined, which may create problems of interpretation given the diversity identified in the legal systems of the Member States. (47) I also note that Article 2(4) defines ‘judgments’ within the meaning of Regulation No 2201/2003 and includes within its scope not only ‘judgments’, but also ‘decisions’ such as those which could be delivered by a court hearing an application for interim measures when giving a ruling in cases of urgency.
102. Secondly, the interpretation of Article 19 is based on its place in the overall structure of Regulation No 2201/2003. Like the Court in its ruling from that perspective in connection with Article 20 of that regulation, (48) I consider that Article 19 does not lay down a rule of substantive jurisdiction, but establishes a structural rule, or ‘a provision applying the rules of jurisdiction’, (49) in the event of the seising of more than one court and of conflicting proceedings. In that regard, it is significant to point out the place of Article 19 in relation to the provisions surrounding it. The preceding provisions set out rules of jurisdiction, whereas the following provision, namely Article 20, refers to measures taken in case of urgency. If the provisional, including protective, measures referred to by Article 20 could be affected by Article 19, they would have been referred to before Article 19. It may therefore be inferred, as do all the parties who have submitted observations, that lis pendens cannot arise when proceedings are brought to obtain the grant of measures on grounds of urgency by a court which would otherwise lack jurisdiction.
103. Thirdly, the interpretation must take into account the rationale underlying Article 19 and Regulation No 2201/2003 in its entirety. Clearly, national courts must have harmonised rules of jurisdiction, failing which the system established cannot function. I note that according to recital 12 in the preamble, the spirit of which is echoed in Article 8 of that regulation, one of the main principles of Regulation No 2201/2003 is that: ‘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’. Another essential principle relates to the chronological precedence (50) laid down by Article 19 of Regulation No 2201/2003, which reproduces the prior temporis rule, traditional in matters of lis pendens. (51) I am of the opinion that it is for the court first seised to determine whether it has jurisdiction (52) and that the decision it takes is binding on the court second seised, contrary to the view expressed by the referring court, the same debatable position having been adopted by the Oberlandsgericht Stuttgart. The case-law of the Court seems to me to be to that same effect (53).
3. The distinct categories of provisional measures
104. For the purposes of answering the question referred concerning the functioning of the rules of lis pendens provided for by Regulation No 2201/2003 in the event that, in matters of parental responsibility, one court is seised in order to obtain the grant of provisional measures and another court is seised concurrently as to the substance of the matter, the judgment in Purrucker I and the Opinion of Advocate General Sharpston in that case, provide a number of useful answers, but only from the standpoint of provisional measures, in particular within the meaning of Article 20, without prejudging the interpretation to be given in the present case of Article 19 of that regulation.
105. It follows in particular from that judgment that a distinction must be made between, first, decisions ruling on provisional, including protective, measures under Article 20 of Regulation No 2201/2003 and, secondly, provisional measures adopted outside that framework. Accordingly, it is necessary to draw a distinction between, on the one hand, provisional measures taken on the basis of Article 20, and thus based on the criteria set out therein, and, on the other hand, other provisional measures, which may be taken by a court which considers that it has jurisdiction as to the substance of the matter under Articles 8 to 14 of Regulation No 2201/2003.
– Provisional measures taken under Article 20 of Regulation No 2201/2003
106. Given the general scheme of the regulation, it seems obvious to me that lis pendens is impossible in the case of multiple proceedings, on the one hand, to obtain the granting of provisional, including protective, measures on grounds of urgency before a court which lacks jurisdiction in the Member State in which the child is present and, on the other hand, to obtain a decision issued by a court having jurisdiction as to the substance of the matter. I am of the view that lis pendens as provided for in Article 19(2) of Regulation No 2201/2003 relates solely to actions seeking the adoption of decisions by courts in different Member States whose jurisdiction is based on Articles 8 to 14 of that regulation. All the parties who submitted observations on that point seem to me to concur.
107. The essential legal basis (54) of that solution lies in the fact that measures based on Article 20 of Regulation No 2201/2003 have no extra-territorial application. (55) Provisional measures which meet the conditions set out by Article 20 are not binding within other Member States but only binding within the territory of the Member State of the court which adopted them. Accordingly, in that case there can be no lis pendens within the meaning of Article 19 of Regulation No 2201/2003, whereby proceedings covered by Article 20 of the Regulation that were brought first could obstruct the course of proceedings brought before the court of another Member State with jurisdiction as to the substance of the matter.
108. At the hearing, the Commission considered that a distinction between provisional measures covered by Article 20 of the Regulation and provisional measures taken by a court having jurisdiction as to the substance of the matter would not be practicable as a criterion for application of Article 19(2) of Regulation No 2201/2003, since the court second seised could not know whether or not the provisional measures taken by the court first seised were based on the grounds of jurisdiction provided for by Article 8 et seq. of that regulation. I do not share that concern.
109. I would point out that Article 20 of Regulation No 2201/2003 allows a court to take provisional or protective measures, in accordance with its internal law, concerning a child who is on its territory, even if a court in another Member State has jurisdiction as to the substance of the matter. The measure may be taken by a court or an authority competent in all the matters falling within the scope of the Regulation, as determined by Article 1(2) and Article 2(1) of that regulation. Since Article 20 is not a rule which confers jurisdiction, provisional measures taken within that framework cease to have effect as soon as the court having jurisdiction as to the substance of the matter, which is temporarily replaced for reasons of time and distance, is in a position to take the measures it considers appropriate. (56)
110. As I have already pointed out, application of Article 19(2) of Regulation No 2201/2003 usually arises as a result of an objection of inadmissibility on grounds of lis pendens raised by a party before the court second seised. However, it cannot be ruled out that there are cases where the existence of proceedings concerning parental responsibility which are pending in another Member State is brought to the notice of a court not by the parties themselves but as a result of information sent by the central authority.
111. It is possible for the court of a Member State (B) which is second seised to identify proceedings seeking to obtain provisional measures taken by a court of a Member State (A) under Article 20 if two factors are present: first, a child or his property is in the territory of that Member State (A) and, secondly, it is established that the child was not habitually resident in that State (A) at the time when its court was seised. I would point out that provisional measures relating to the person of a child who is not present in the Member State in which the court which takes those measures is established never fall within the scope of Article 20. (57)
112. In a case where the habitual residence of the child is located in the Member State (B) of the court second seised (or in a third Member State) and where the child is actually present in the Member State (A) of the court first seised in order to obtain provisional measures, the court second seised may presume that such proceedings are covered by Article 20, unless the party which raises the objection of lis pendens can adduce evidence that the court first seised in the Member State (A) was seised on one of the grounds of jurisdiction set out in Articles 9 to 12 of Regulation No 2201/2003. (58)
113. As regards children whose place of habitual residence cannot be clearly established, the courts of the Member State on whose territory the child is present at the time have jurisdiction on that basis, in accordance with Article 13, and, consequently, Article 20 does not apply to the provisional, including protective, measures taken by those courts. The same applies to children who are normally habitually resident outside the Union, whose situation is covered by Article 14, concerning residual jurisdiction. If such a child is present in the territory of a Member State, the national courts have jurisdiction in so far as that follows from the legislation of that State. A positive conflict of jurisdiction between the courts of several Member States is therefore possible.
– Provisional measures taken by a court having jurisdiction on the basis of Articles 8 to 14 of Regulation No 2201/2003
114. The approach must be different, that is to say that there may be lis pendens, with regard to provisional measures taken not on grounds of urgency, on the basis of Article 20, but by a court which assumes jurisdiction as to the substance of the matter pursuant to Articles 8 to 14 of Regulation No 2201/2003. It seems to me that this is the most delicate aspect of the issues raised by the Amtsgericht Stuttgart.
115. I would point out that the first question referred covers the case of actions seeking only provisional measures which are ‘isolated’, to use the term of the referring court, in opposition to actions seeking to obtain not only provisional measures but also, primarily or in the alternative, definitive measures as to the substance of the matter. In my view that premiss may cover three situations. First, temporary measures may be sought pending the outcome of investigations (social inquiry, medical and psychological expert’s report, inventory of property, etc.) or the occurrence of an event (family mediation, detoxification treatment of one of the parents, discharge from hospital or release from a custodial sentence, etc). Secondly, measures may be sought for a defined period or subject to a time-limit (for example, placement of a child in a host family for a one-year period, guardianship established until the child reaches majority). Finally, provisional measures may be sought pending a subsequent procedural act on the part of the applicant without any requirement under the applicable national law for a further document to institute proceedings (as appears to be the case with the relevant provisions of Spanish law in the present case).
116. In the light of the wording of the provisions of Regulation No 2201/2003 and those of Article 19(2), in particular, no distinction is drawn between decisions which the court having jurisdiction as to the substance of the matter delivers on a provisional basis, that is to say for a fixed period, and those which it delivers definitively, more specifically for an indefinite period that may end if a new element justifies modification of the measures which put in place arrangements for exercising parental authority.
117. Given the purpose of Article 19(2) of Regulation No 2201/2003, and contrary to what occurs in the context of Article 20, (59) it is logical that a court having jurisdiction as to the substance of the matter which has adopted a provisional measure concerning parental responsibility in respect of a child would not merely undertake that preliminary stage and that that court would itself subsequently deliver a final or ‘full’ decision, given that it is in the best interests of the child that his situation should be settled in as stable a way as possible and that it should be settled by the same court, namely that which took the temporary measures, in order to avoid differences in approach. It is therefore necessary to prevent, by means of the rule of lis pendens, a court in another Member State from being able to rule on the substance of a matter where a court in a Member State having jurisdiction as to the substance of the matter which was previously seised has taken provisional measures.
118. As regards the idea of procedural unity, there are two conflicting approaches: on the one hand, that of the Czech, French and Spanish Governments, according to which lis pendens arises since the provisional measures and the substance of the matter form a single entity; on the other hand, the approach supported by Ms Purrucker, the German Government and the Commission, according to which the decision ordering provisional measures constitutes a separate entity from any decision to be taken on the substance and concludes the proceedings as soon as it is adopted. In support of the second theory, which departs from the case-law established in the context of the interpretation of the Brussels Convention of 27 September 1968, the interests of legal certainty and rapidity are relied on, as well as the desire to favour the court geographically closest to the child.
119. As the referring court points out, if we adopt the first view of the law, according to which ‘an action for provisional measures and a subsequent action as to the substance constitute a single entity for procedural purposes’, ‘the action for custody of the son [M.] was before the Spanish courts for the purposes of Article 19(2) of Regulation No 2201/2003 as from 28 June 2007, and not as from January 2008’.
120. In certain Member States it would be artificial to try to separate interlocutory decisions taken by a court having jurisdiction as to the substance of the matter from final decisions which it takes, since they form part of one and the same case, and do so for as long as all the aspects of the dispute brought before the court have not been fully resolved and therefore as long as its jurisdiction is not exhausted.
121. However, Article 19(2) of Regulation No 2201/2003 draws no distinction between categories of decisions. It applies where two courts have concurrent jurisdiction as to the substance of the matter, under Articles 8 to 14, whatever the purpose of the action (provisional measures or a final decision) and whatever the duration of the effects of the decision sought (definite or indefinite period) before each of them. What is important is the potential risk, that is to say the risk which may come to light when two sets of proceedings have been brought to a conclusion, that judgments could be handed down which cannot be implemented at the same time. (60)
122. The key element is the definition of ‘proceedings involving the same cause of action’ within the meaning of Article 19(2) of Regulation No 2201/2003, since those factors are assessed on the day that each court is seised in accordance with Article 16, irrespective of the subsequent course of the proceedings. In that regard, I note that a useful comparison may be made with the decisions of the Court on the interpretation of the equivalent provisions concerning lis pendens contained in the Brussels Convention of 27 September 1968 and that any specific features of the rules of civil procedure applicable in the Member States concerned are irrelevant here. (61)
4. The practical implementation of the rules laid down by Regulation No 2201/2003 in the case of lis pendens
123. Having regard to the difficulties encountered in this case by the referring court in obtaining the information required to allow it to assess whether or not concurrent proceedings were pending in Spain, I intend to propose that the Court should consider the possibility of establishing a rule of case-law to remedy, in so far as possible, problems relating to the exchange of procedural and legislative information between the courts of the Member States.
124. Under Article 19 of Regulation No 2201/2003, as soon as it has knowledge of the existence of other proceedings as to the substance of the matter which seem to be pending before a court in another Member State, (62) the court second seised must verify whether those proceedings exist and ascertain their scope, that is determine the ‘cause of action’ that is both the ‘objective’ (‘objet’) and the cause of the proceedings. The court concerned should, in my view, carry out the following steps: it should seek to enter into contact with the court first seised, with the central authority of the relevant Member State and possibly with the national liaison magistrate through the European Justice Network. It should also be able to rely on the active cooperation of the parties, in particular the party raising the objection of lis pendens, who has an interest in providing information which may serve to show that the court first seised may deliver a judgment which is irreconcilable with that which the court second seised has been called upon to deliver.
125. Accordingly, the Court could reasonably rule that national courts, as well as central authorities, must cooperate by providing all the necessary information on proceedings pending before them to the courts of other Member States which request such information, and must do so within a reasonable period. Although, if it is to avoid a miscarriage of justice, the court second seised must of its own motion stay the proceedings, it must not wait inordinately long for the requested information in order to ascertain whether or not lis pendens arises. Even though Article 19 of Regulation No 2201/2003 does not lay down the period in which the court first seised is to respond, it seems to me that it is necessary to set a time-limit, given that it is in the best interests of the child for a ruling to be given expeditiously.
126. In response to a question raised by the Court at the hearing, the Federal Republic of Germany invoked the case-law of the European Court of Human Rights to propose choosing a period of 6 months. I am of the view that the rule laid down in Article 9, which provides for the continuing jurisdiction of the child’s former habitual residence for a three-month period, could serve, by analogy, as the point of reference for determining the appropriate period. (63) Accordingly, the Court could hold that if the requested information is not provided within a period of three months from receipt of the request by the court or central authority concerned, unless there is adequate evidence of an impediment due to force majeure, the court second seised could be allowed to infer from such silence that there is no concurrent action pending in the other Member State for the purposes of Article 19(2) of Regulation No 2201/2003. (64)
127. As I have already mentioned, the jurisdiction of the court first seised must be established by that court and cannot be reviewed by the court second seised, (65) contrary to what the Oberlandesgericht Stuttgart seems to assert in its decision of 14 May 2009. The court second seised cannot examine the adequacy of the view taken on jurisdiction in the light of the facts, since that decision is binding within the territory of the other Member States, even if the court having jurisdiction as to the substance of the matter delivers only a provisional ruling. I share the view of the Czech Government that that court is able, at most, to carry out a formal examination, that is to say to identify the legal basis on which the other court has relied for the purpose of assuming jurisdiction. (66) That follows from one of the basic principles underlying the system established by Regulation No 2201/2003: that of mutual trust between the judicial authorities of the Member States. That principle is identified as the cornerstone for the creation of a genuine judicial area, as recital 2 in the preamble to Regulation No 2201/2003 emphasises. (67)
C – The second and third questions
128. In its second question, the referring court asks the Court whether the provisions concerning lis pendens contained in Article 19(2) of Regulation No 2201/2003 are also applicable if a ruling in the isolated proceedings for provisional measures in one Member State is not capable of recognition in another Member State within the meaning of Article 21 of Regulation No 2201/2003. It briefly explains that the fact that a decision granting interim relief may be capable of recognition under Article 21 may have legal consequences for the first question raised.
129. In Purrucker I the Court expressly ruled to that effect: ‘The provisions laid down in Article 21 et seq. 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, do not apply to provisional measures, relating to rights of custody, falling within the scope of Article 20 of that regulation’. (68)
130. In my view, it is necessary, as I indicated in response to the first question, to draw a distinction between provisional measures falling within the scope of Article 20, which cannot be recognised according to the abovementioned case-law of the Court, and provisional measures taken by a court having jurisdiction as to the substance of the matter under Article 8 et seq., which for their part fall within the scope of the provisions of Article 21 et seq. and may therefore be recognised and enforced in the same way as all decisions taken by a court having jurisdiction as to the substance of the matter, irrespective of the type of action: it is of little importance whether the court having jurisdiction as to the substance of the matter is called on to give a provisional ruling or whether it delivers a final judgment. Article 19(2) of Regulation No 2201/2003 is intended to apply only to that second category of measures, as I pointed out above. (69)
131. By its third question, the referring court asks whether ‘the seising of a court in a Member State for isolated proceedings for provisional measures [is] to be equated to seising as to the substance of the matter within the meaning of Article 19(2) of Regulation No 2201/2003 if under the national rules of procedure of that State a subsequent action to rule on the substance of the matter must be brought before that court within a specified period in order to avoid adverse procedural consequences’. The order for reference states that ‘[t]he aim of [that] question … is to elicit clarification whether it is justified to treat the two actions as equal by way of analogy’.
132. In my view, that question also does not call for an answer, given the answer which I propose to give to the first question, from which it follows that the specific features of the procedural rules in force in a Member State, in this instance in Spain by contrast with the system applicable in Germany, (70) have no bearing on the assessment as to the existence of lis pendens within the meaning of Article 19(2) of Regulation No 2201/2003.
VII – Conclusion
133. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Amtsgericht Stuttgart as follows:
Provisional, including protective, measures relating to a child present in the territory of a Member State taken by a court established in that State which are covered by Article 20 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, since they do not have binding legal effects outside the territory of that Member State and are not capable of recognition in another Member State within the meaning of Article 21 of that regulation, cannot give rise to lis pendens, within the meaning of Article 19(2) of that regulation, which would be binding on the courts of other Member States seised of an action relating to parental responsibility over the same child.
However, proceedings pending before a court whose jurisdiction is based on any one of Articles 8 to 14 of the same regulation and which is first seised of an action relating to parental responsibility over a child, as defined by Articles 1(1) and (2) and Article 2(7) of that regulation, irrespective of the classification of the proceedings according to the national rules in force in the Member States concerned and irrespective of whether the measure is sought on a provisional basis, or whether it is sought for a definite or indefinite period, prevent a court in another Member State from ruling on an action having the same cause of action which relates to the same child until the court first seised has established that it has jurisdiction or that the proceedings before it have ended for any reason, including the failure of one party to complete a procedural act required so as to enable the court first seised to rule on the substance of the matter in accordance with the law of the Member State in which it has jurisdiction.
1 – Original language: French
2 – OJ 2003 L 338, p. 1.
3 – Case C-256/09 Purrucker [2010] ECR I-0000.
4 – I would point out that a detailed description of the legal instruments which were precursors to Regulation No 2201/2003 is given in points 30 to 48 of the Opinion of Advocate General Sharpston in Case C-256/09, known as ‘Purrucker I’.
5 – OJ 1998 C 221, p. 1.
6 – OJ 1998 C 221, p. 27.
7 – OJ 2000 L 160, p. 19.
8 – See Clauses 2 and 3 of that agreement, cited in paragraph 28 of Purrucker I.
9 – See the grounds of that decision, cited in paragraph 36 of the judgment in Purrucker I.
10 – See the extracts from that decision, cited in paragraph 37 of Purrucker I.
11 – All Member States of the European Union are contracting parties to that convention, which entered into force on 1 December 1983.
12 – That is to say a date prior to that of delivery of the judgment in Purrucker I but subsequent to the Opinion delivered by Advocate General Sharpston on 20 May 2010 in that case.
13 – See by analogy: stating his views on the concept of irreconcilability within the meaning of Article 27(3) of the Brussels Convention of 27 September 1968, in Case C-80/00 Italian Leather [2002] ECR I‑4995, Advocate General Léger pointed out that ‘[i]t can be accepted … that, if the grounds for interim relief laid down in national legislation diverge but the judgments given pursuant to those procedural requirements do not produce mutually incompatible effects, the foreign judgment should be considered irreconcilable with the judgment given in the State in which enforcement is sought’. On the functional link between that article and Article 21 of the same Convention, which relates to lis pendens, see Case C-351/96 Drouot assurances [1998] ECR I-3075, paragraph 16, and Case C-116/02 Gasser [2003] ECR I-14693, paragraph 41.
14 – The fact that rules of jurisdiction have been harmonised does not preclude the possibility that parties having conflicting interests may legitimately bring proceedings before courts of different Member States.
15 – As Advocate General Kokott pointed out, the authority of res judicata is also intended to prevent the coexistence of contradictory decisions (Opinion in Case C‑526/08 Commission v Luxembourg [2010] ECR I‑0000, point 37 et seq.).
16 – Indeed, it would not be reasonable for a court to stay its proceedings pending a foreign decision which would not then be recognised at national level. Otherwise, the applicant would be faced with a denial of justice, since he would be prevented from obtaining an enforcement order on the territory of the Member State in question.
17 – The authority of res judicata must not be confused with the force of res judicata, the latter concept corresponding to the status of a judgment which is not or is no longer subject to appeal.
18 – See points 119 and 121 of the Opinion in Case C‑256/09.
19 – The expression varies according to the language version: ‘desselben Anspruchs’ in German, ‘le même objet et la même cause’ in French, ‘samaa asiaa’ in Finnish and ‘samma sak’ in Swedish. According to the case-law (see Case C-406/92 Tatry [1994] ECR I‑5439, paragraph 38, and Case 144/86 Gubisch Maschinenfabrik [1987] ECR 4861, paragraph 14, the objective scope is defined in relation to two separate factors, namely the objective and the cause of action. Consequently, the language versions which draw a marked distinction between those two concepts must be taken as the source of reference.
20 – Compare, in civil and commercial matters: Article 21 of the Brussels Convention of 27 September 1968 and Article 27 of Regulation No 44/2001; in matrimonial matters and in matters of parental responsibility: Article 11(1) of Regulation No 1347/200; in matrimonial matters: Article 19(1) of Regulation 2201/2003. With regard to Regulation No 1347/2000, see in particular page 17 of the proposal from the Commission which led to its adoption (COM(1999) 220 final), which emphasises the difference between paragraphs 1 and 2 of Article 11 of that regulation, also notable when reading paragraphs 1 and 2 of Article 19 of Regulation No 2201/2003. That proposal also points out that the notion of lis pendens is defined more or less broadly in the laws of the Member States, certain legal systems drawing no distinction between ‘objet’ and ‘cause’, which is also apparent in the explanatory report on the Convention of 28 May 1998 prepared by Dr A. Borrás, cited above (paragraph 52).
21 – The situation is different with regard to an instrument such as the Brussels Convention of 27 September 1968, since the numerous competing grounds of jurisdiction provided for therein create increased possibilities of lis pendens.
22 – ‘Practice Guide for the application of the new Brussels II Regulation’, drawn up by the Commission in consultation with the European Judicial Network in civil and commercial matters (‘the EJN’), updated version of 1 June 2005, page 22. Document accessible on the Commission’s Internet site (http://ec.europa.eu/justice_home).
23 – COM(2002) 222 final, p. 11.
24 – That was the case in Case C-523/07 A [2009] ECR I‑2805, since the family in question had ‘left Sweden to spend the holidays in Finland. They [had] stayed on Finnish territory, living in caravans, on various campsites, and the children did not go to school’ (paragraph 14). I would point out that the criteria for identifying the habitual residence were set out in that judgment as follows: [i]n addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration’ (paragraph 30 et seq.). See also points 38 to 52 of the Opinion of Advocate General Kokott in that case.
25 – In such a situation, Article 14 of Regulation No 2201/2003 requires that ‘jurisdiction [is to] be determined, in each Member State, by the laws of that State’.
26 – I note, however, under the law of certain Member States, brothers and sisters form an entity which is protected so far as possible as a single unit, the legislature requiring a court to avoid the separation of siblings and, failing that, to ensure the continuance of the links between the siblings (see, for example, Article 371-5 of the French Civil Code).
27 – By decision of 25 September 2007, the Amtsgericht Albstadt held that that application was superfluous on the ground that under the German legislation, the mother already had sole custody. It must be pointed out that, following the judgment of the European Court of Human Rights in Zaunegger v Germany, of 3 December 2009 (application No 22028/04), the German Constitutional Court (Bundesverfassungsgericht) recently ruled that preventing, under Paragraphs 1626a and 1672 of the German Civil Code (BGB), a father of a child born outside marriage from obtaining rights of custody in respect of that child where the mother raises an objection is contrary to Paragraph 6(2) of the German Constitution (judgment of 21 July 2010, 1 BvR 420/09).
28 – Regarding that principle generally regarded as being a ‘pillar’, see, inter alia, point 30 et seq. of the Opinion of Advocate General Ruiz‑Jarabo Colomer in Case C‑159/02 Turner [2004] ECR I‑3565, concerning the Brussels Convention of 27 September 1968.
29 – Responsibility for reviewing compliance with the provisions of Regulation No 2201/2003 which relate to grounds of jurisdiction lies with the national courts having powers of review, which are, in case of doubt as to the interpretation of those provisions, required to refer a question to the Court for a preliminary ruling. As a last resort, infringement proceedings against the relevant Member State concerned can also be envisaged.
30 – I note that the concept of ‘civil matters’ is an independent concept of European Union law which also covers measures falling within the scope of public law under the domestic law of a Member State (see Case C-435/06 C [2007] ECR I‑10141, paragraphs 46 to 53). Consequently, the administrative procedures, authorities or decisions of certain Member States may fall within the scope of Regulation No 2201/2003 (in that regard, see also ‘Practice Guide for the application of the new Brussels II Regulation’, drawn up by the Commission in consultation with the EJN, cited above, p. 8).
31 – For example, a combination of proceedings such as a guardianship application and an application for placement could not lead to lis pendens because the relevant matters are distinct and those proceedings clearly do not have the same ‘cause of action’. It is more difficult to determine whether there could be lis pendens as between an action relating to custody and an action relating to rights of access.
32 – For example, rights of custody, as an attribute of parental responsibility, may automatically follow the grant of guardianship or the placement of a child in institutional care.
33 – It is clear from A that ‘a decision ordering that a child be immediately taken into care and placed outside his original home is covered by the term “civil matters”, for the purposes of [Article 1(1) of Regulation No 2201/2003], where that decision was adopted in the context of public law rules relating to child protection’.
34 – I note that recitals 9 and 11 in the preamble to Regulation No 2201/2003 state that measures relating to the child’s property which do not concern the protection of the child are covered not by that regulation, but by Regulation No 44/2001, just as maintenance obligations continue to be governed by the latter.
35 – In that regard, see paragraph 84 et seq. of Purrucker I.
36 – Recital 3 in the preamble to Regulation No 2201/2003 points out that that regulation replaced Regulation No 1347/2000, itself substantially taken over from the Convention of 28 May 1998, known as ‘Brussels II’, (OJ 1998 C 221, p. 1) on the same subject-matter, as clarified by the Borrás report.
37 – Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L 299, p. 32), as amended several times (see paragraph 12 of Purrucker I).
38 – On the link to be made between the two provisions in matters of jurisdiction, see in particular point 28 et seq. of the Opinion of Advocate General Kokott in Case C‑185/07 Allianz (formerly Riunione Adriatica di Sicurta) [2009] ECR I‑663.
39 – See Article 21 of the Brussels Convention of 27 September 1968, Article 11 of Regulation No 1347/2000 and Article 27 of Regulation No 44/2001.
40 – See recital 12 in the preamble to Regulation No 2201/2003.
41 – By analogy, see paragraph 6 et seq. of Gubisch Maschinenfabrik: ‘the terms used in Article 21 [of the Convention of 27 September 1968] in order to determine whether a situation of lis pendens arises must be regarded as independent’ and point 2 of the Opinion of Advocate General Mancini in that case. See also the settled case-law cited in paragraph 31 of Case C-464/01 Gruber [2005] ECR I-439. On the choice between an independent definition or a national approach, see in particular Case 12/76 Industrie Tessili Italiana Como [1976] ECR 1473, paragraphs 10 and 11.
42 – See, by analogy, Case 29/76 LTU [1976] ECR 1541, paragraph 3.
43 – Case 129/83 Zelger [1984] ECR 2397, paragraph 16: ‘Article 21 of the Convention must be interpreted as meaning that the court “first seised” is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned’. The Opinion of Advocate General Mancini was to the same effect, given the variety of legal systems applied to lis pendens in the Member States.
44 – On the links between service of the document instituting the proceedings and lis pendens, see point 68 of the Opinion of Advocate General Trstenjak in Case C‑14/07 Weiss und Partner [2008] ECR I‑3367.
45 – By analogy, on the interpretation of the equivalent provision in the Brussels Convention of 27 September 1968, namely Article 21 thereof, see Gasser, paragraph 70: it is necessary to have regard ‘both to the letter and spirit and to the aim of the Convention’. Compare paragraphs 62 to 64 of Purrucker I.
46 – On that concept, see by analogy, Case C-261/90 Reichert and Kockler [1992] ECR I-2149, paragraph 34, concerning the interpretation of Article 24 of the Brussels Convention of 27 September 1968.
47 – In that regard, see the comparative legal analysis on the site of the European Justice network (http://ec.europa.eu/civiljustice/interim_measures/interim_measures_gen_en.htm): ‘A comparison of national legislation shows that there is an almost total absence of any definition of interim and precautionary measures and that legal systems differ rather widely’.
48 – See paragraphs 60 to 61 of Purrucker I: ‘Article 20 of Regulation No 2201/2003 is the last article of Chapter II of the regulation, on jurisdiction. It is not one of the articles dealing specifically with jurisdiction in relation to parental responsibility, which make up Section 2 of that chapter, but is part of Section 3, entitled “Common provisions”. It is evident from the position of Article 20 in the structure of Regulation No 2201/2003 that it cannot be regarded as a provision which determines substantive jurisdiction for the purposes of that regulation’.
49 – The expression is taken, by analogy, from the explanatory report on the Convention of 28 May 1998 prepared by Dr A. Borrás (paragraph 55).
50 – By analogy, concerning the provisions of the Brussels Convention of 27 September 1968, relating to lis pendens, see Gasser, paragraph 47: ‘the procedural rule contained in Article 21 of the Convention … is based clearly and solely on the chronological order in which the courts involved are seised’.
51 – Compare: the proposal from the Commission of 1999 which led to the adoption of Regulation No 1347/2000 (COM(1999) 220 final, p. 17) and the Borrás report (paragraphs 52 and 53).
52 – See also the Practice Guide for the application of the new Brussels II Regulation, drawn up by the Commission in consultation with the EJN, page 22: ‘Article 19(2) stipulates that the court first seised is, in principle, competent. The court second seised has to stay its proceedings and wait for the other court to decide whether it has jurisdiction. If the first court considers itself competent, the other court must decline jurisdiction. The second court may only continue its proceedings if the first court comes to the conclusion that it does not have jurisdiction or if the first court decides to transfer the case pursuant to Article 15’
53 – By analogy, concerning the Brussels Convention of 27 September 1968: see Gasser, paragraph 48, and Case C-351/89 Overseas Union Insurance and Others [1991] ECR I-3317, paragraph 26: ‘without prejudice to the case where the court second seised has exclusive jurisdiction under the Convention and in particular under Article 16 thereof, Article 21 of the Convention must be interpreted as meaning that, where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised’. In the latter case, Advocate General Van Gerven had emphasised that ‘[a]ny other conclusion would constitute an unjustified interference by the second court in the legal autonomy of the first’ (point 15 of his Opinion).
54 – Other arguments also support that view, namely that measures based on Article 20 have, in addition to that limited effect as regards their spatial scope, limited effects, on the one hand, as regards their material scope, since Article 20(1) provides that measures adopted on grounds of urgency do not call into question the jurisdiction which the courts of other Member States may have as to the substance of a matter and are not binding on those courts, and, on the other hand, as regards their temporal scope, since Article 20(2) provides that the measures in question are to cease to apply when the court which has jurisdiction as to the substance of the matter has ruled and that there is therefore no longer any need temporarily to take its place. The two categories of proceedings cannot conflict directly, since the proceedings covered by Article 20 are made subject to those as to the substance of the matter, in order to avoid a risk of circumvention of the rules of jurisdiction. On that last point, see Purrucker I, paragraphs 86 and 91.
55 – Compare with Purrucker I, paragraph 84 et seq., and the Opinion of Advocate General Sharpston in that case, points 172 to 175. That analysis relates to the recognition and enforcement of judgments, but it also applies with regard to lis pendens, in my view. It is important to remain consistent with the existing system of case-law, that is to say the rationale of that judgment must be followed.
56 – See the Practice Guide for the application of the new Brussels II Regulation, drawn up by the Commission in consultation with the EJN (p. 11).
57 – I exclude here the issue of urgent measures taken in relation to any property of the child which may be present on national territory.
58 – With regard to the provisions of Article 11 of Regulation No 2201/2003 and those of Article 19 of the same regulation when viewed in conjunction with one another, see points 63 to 66 of the Opinion of Advocate General Sharpston in Case C‑195/08 PPU Rinau [2008] ECR I-5271.
59 – See Opinion of Advocate General Sharpston in Purrucker I, point 131.
60 – For example, with regard to parents living separately, if one court orders that a child should reside with the mother, another court cannot decide that the child should reside with the father without those decisions being irreconcilable in practice, even if one of them was issued solely on a provisional basis.
61 – By analogy, see Tatry, paragraph 39 et seq.: ‘For the purposes of Article 21 of the Convention, the “cause of action” comprises the facts and the rule of law relied on as the basis of the action. … The “object of the action” for the purposes of Article 21 means the end the action has in view’. See also point 19 of the Opinion of Advocate General Tesauro in that case. Gubisch Maschinenfabrik, paragraph 14 et seq., adds: ‘[e]ven though the German version of Article 21 does not expressly distinguish between the terms “subject-matter” and “cause of action”, it must be construed in the same manner as the other language versions, all of which make that distinction’. In Case C-111/01 Gantner Electronic [2003] ECR I-4207, the Court stated that ‘in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject-matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant’.
62 – I would point out that where one of the courts involved in the conflicting proceedings is established in a third State, such a situation is covered not by the provisions of Article 19 of Regulation No 2201/2003 but by other rules governing international lis pendens.
63 – I would point out that an even shorter period is laid down in Article 15(5) of that regulation, which provides for a period of six weeks from the date of seisure for courts to accept jurisdiction, in the case of the transfer of the case to a court of another Member State better placed to hear it.
64 – The problems addressed here are different from those raised in Gasser, in which the Court held that ‘Article 21 of the Brussels Convention [of 27 September 1968] must be interpreted as meaning that it cannot be derogated from where, in general, the duration of proceedings before the courts of the Contracting State in which the court first seised is established is excessively long’ (paragraph 70). Thus, first, the approach which I propose is not general but case-by-case, secondly, it does not go against the principle of mutual trust, since it is only in the absence of response from the court first seised that the court second seised may proceed further and, finally, it seeks to guarantee legal certainty for the parties, in that they will, within a short period of time, know where they stand with regard to whether or not there is lis pendens.
65 – The conclusion reached by Advocate General Kokott was also to that effect, as regards Article 19(1) of Regulation No 2201/2003: ‘The court second seised cannot continue the proceedings pending before it because it considers the court first seised not to have jurisdiction’, point 31 of the Opinion in Case C-168/08 Hadadi [2009] ECR I-6871. I am of the view that, under all circumstances, a court is obliged to stay proceedings of its own motion, but not to decline jurisdiction ab initio.
66 – Compare with paragraph 75 of Purrucker I. The court called upon to decline jurisdiction must not carry out a review of jurisdiction where, under Article 24 of Regulation No 2201/2003, it could not review a decision taken by the court of another Member State if it had been delivered and submitted to it for the purpose of enforcement.
67 – See Purrucker I, paragraph 71 et seq. In that regard, I would like to make an observation concerning the obligation imposed on the courts of the Member States expressly to state reasons for their international jurisdiction as to the substance, by reference to one of the grounds of jurisdiction referred to in Articles 8 to 14 of that regulation, which is set out in paragraph 76 of that judgment. I note that in practice, that would rarely be carried out by a court of its own motion where no objection of lack of jurisdiction is raised by the parties or where the disputed foreign element did not exist when it was seised of the action.
68 – Operative part of the judgment, cited above. In paragraph 92, the Court nonetheless held that ‘The fact that measures falling within the scope of Article 20 of Regulation No 2201/2003 do not qualify for the system of recognition and enforcement provided for under that regulation does not, however, prevent all recognition or all enforcement of those measures in another Member State, as was stated by the Advocate General in point 176 of her Opinion. Other international instruments or other national legislation may be used, in a way that is compatible with the regulation.’
69 – To the same effect, see point 169 of the Opinion of Advocate General Sharpston in Purrucker I: ‘The very fact that [a court] acts solely on the basis of Article 20 means that its jurisdiction cannot be established for the purposes of Article 19, so that the proceedings before it do not trigger the rules on lis pendens’.
70 – According to the information supplied by the referring court, in German law, provisional measures are provided for only if a main action has been brought, whereas it seems that in Spanish law an isolated action for provisional measures is permitted.