Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (The Greens) and federal spokesperson for that party. On 3 April 2016, a Facebook Service user shared on his personal page an article from the Austrian online news magazine oe24.at which had the effect of generating on that page a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of Ms Glawischnig-Piesczek. That user also published, in connection with that article, a comment which the Austrian court found to be harmful to the reputation of Ms Glawischnig-Piesczek, and which insulted and defamed her. This post could be accessed by any Facebook user. Because Facebook Ireland did not withdraw the comment in question, Ms Glawischnig-Piesczek brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) which, by an interim order, directed Facebook Ireland to cease and desist from publishing and/or disseminating photographs showing Ms Glawischnig-Piesczek if the accompanying text contained the assertions, verbatim and/or using words having an equivalent meaning as that of the original comment.

On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order as regards the identical allegations. However, it also held that the dissemination of allegations of equivalent content had to cease only as regards those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise. Each of the parties lodged appeals at the Oberster Gerichtshof (Supreme Court, Austria). Having been called on to adjudicate whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended to statements with identical wording and/or having equivalent content of which it is not aware, the Oberster Gerichtshof (Supreme Court) states that, in accordance with its own case-law, such an obligation must be considered to be proportionate where the host provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of a user’s post and the risk that other infringements may be committed is thus demonstrated.

However, considering that the dispute before it raises questions of the interpretation of EU law, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer to the Court of Justice for a preliminary ruling.

By an adjudication of 10 March 2016, the Commission nationale de l'informatique et des libertés (French Data Protection Authority, France) (‘the CNIL’) imposed a penalty of €100 000 on Google Inc., an American company, because of that company’s refusal, when granting a de-referencing request, to apply it to all its search engine’s domain name extensions. Google Inc., having been given formal notice by the CNIL on 21 May 2015 to apply the dereferencing to all the extensions, had refused to do so and had confined itself to removing the links in question from only the results displayed following searches conducted from the domain names corresponding to the versions of its search engine in the Member States. The CNIL also regarded as insufficient Google’s further ‘geo-blocking’ proposal, made after expiry of the time limit laid down in the formal notice, whereby internet users would be prevented from accessing the results at issue from an IP (Internet Protocol) address deemed to be located in the State of residence of a data subject after conducting a search on the basis of that data subject’s name, no matter which version of the search engine they used. Google Inc. requested the Conseil d’État (Council of State, France) to annul the adjudication of 10 March 2016. It considers that the right to de-referencing does not necessarily require that the links at issue are to be removed, without geographical limitation, from all its search engine’s domain names. The Conseil d’État decided to stay the proceedings and to refer some questions related to the territorial scope of so-called right to be forgotten granted by Art. 12 of Directive 95/46/EC and by Art. 17 of Regulation 2016/679/EU (GDPR).

On 15 October 2015 AMS Neve, a UK company which manufactures and sells audio equipment, BW Trustees, another UK company which is the trustee of the AMS neve, and Mr Crabtree, a director of AMS Neve, brought an action against Heritage Audio, a company established in Spain, and Mr Rodríguez Arribas, the sole director of Heritage Audio, before the Intellectual Property and Enterprise Court (United Kingdom) claiming infringement of an EU trade mark of which BW Trustees and Mr Crabtree are the proprietors and for the use of which AMS Neve is exclusively licensed. Their action concerns, in addition, the alleged infringement of two marks registered in the United Kingdom of which BW Trustees and Mr Crabtree are also the proprietors. The defendants in the main proceedings are alleged to have offered for sale to consumers in the United Kingdom imitations of goods of AMS Neve bearing a sign that is identical or similar to that EU trade mark and to the national trade marks or referring to that sign, and to have advertised those products via internet and via social networks. The defendants pleaded that the court before which the action was brought had no jurisdiction. While the defendants do not deny that Heritage Audio products might have been purchased, in the United Kingdom, through other companies, they assert that they have not, themselves, either advertised in the United Kingdom or made any sales in that Member State. They further assert that they have never appointed a distributor for the United Kingdom. Last, they contend that the content displayed on the Heritage Audio website and on the platforms to which the applicants in the main proceedings refer was, by the time of the period covered by the infringement action, obsolete and ought not therefore to be taken into account.

The main proceedings concern a request for compensation, before the Spanish court, against an airline having a registered office in Ireland, pursuant to Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91. The plaintiff is neither domiciled nor resident in Spain, while the defendant company has a branch in Girona (Barcelona). The referring court wonders whether the jurisdiction in the main proceedings can be based on the forum of the branch (according to Article 7, n. 5, of Brussels I bis Regulation), and, at the same time, whether there might exist tacit prorogation according to Article 26 of the same Regulation, since the defendant did not object to the jurisdiction of the court seised.

Case C‑627/17

ZSE Energia, a.s.

v

RG

(Request for a preliminary ruling from the Okresný súd Dunajská Streda)

(Reference for a preliminary ruling — Regulation (EC) No 861/2007 — European Small Claims Procedure — Articles 2(1) and 3(1) — Scope — Concept of ‘parties’ — Cross-border disputes)

Summary — Judgment of the Court (Tenth Chamber), 22 November 2018

Judicial cooperation in civil matters — European Small Claims Procedure — Regulation No 861/2007 — Scope — Cross-border disputes — Domicile or habitual residence of at least one of the parties in a Member State other than the Member State of the court or tribunal seised — Concept of ‘parties’ — Scope (European Parliament and Council Regulation No 861/2007, Art. 3(1)) Judicial cooperation in civil matters — European Small Claims Procedure — Regulation No 861/2007 — Scope — Cross-border disputes — Parties to the dispute having their domicile or their habitual residence in the same Member State as the court or tribunal seised — Not included (European Parliament and Council Regulation No 861/2007, Arts 2(1) and 3(1))

Article 3(1) of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, as amended by Council Regulation (EU) No 517/2013 of 13 May 2013, must be interpreted as meaning that the concept of ‘parties’ covers solely the applicant and the defendant in the main proceedings. In that regard, it must be noted, first, that Article 3(1) of Regulation No 861/2007 does not define the concept of ‘parties’, nor does it refer to the law of the Member States on that issue. In those circumstances, the concept of ‘parties’ referred to in Article 3(1) of that regulation must be given an autonomous and uniform interpretation within the legal order of the European Union. Regarding the general scheme of Regulation No 861/2007, it must be noted, as the referring court has done, that that regulation provides solely for the rights and obligations of the applicant and defendant in the main proceedings. It therefore follows from the general scheme of Regulation No 861/2007 that the participation of parties intervening in the disputes covered by that regulation was not envisaged. (see paras 22, 23, 26, 27, 30, operative part 1) Article 2(1) and Article 3(1) of Regulation No 861/2007, as amended by Regulation No 517/2013 must be interpreted as meaning that a dispute, such as that in the main proceedings, in which the applicant and the defendant have their domicile or their habitual residence in the same Member State as the court or tribunal seised, does not come within the scope of that regulation. In this regard, it is sufficient to note that Article 2(1) of Regulation No 861/2007 explicitly limits the scope of that regulation to cross-border disputes. Article 3(1) of that regulation, as interpreted by the Court in paragraph 30 of the present judgment, defines a cross-border dispute as a dispute in which the applicant and/or the defendant has his domicile or habitual residence in a Member State other than that of the court or tribunal seised. (see paras 32, 36, operative part 2)

Case C‑308/17

Hellenic Republic

v

Leo Kuhn

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Regulation (EU) No 1215/2012 — Jurisdiction in civil and commercial matters — Scope — Article 1(1) — Concept of ‘civil and commercial matters’ — Bonds issued by a Member State — Involvement of the private sector in the restructuring of public debt of that State — Unilateral and retroactive adjustment of the borrowing terms — Collective action clauses — Action brought against the State by private creditors who hold those bonds as natural persons — Liability of the State for acts and omissions in the exercise of State authority)

Summary — Judgment of the Court (First Chamber), 15 November 2018

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 1215/2012 — Scope — Civil and commercial matters — Action brought by an acquirer of bonds issued by a Member State against that State, seeking to contest the exchange of those bonds with bonds of a lower value — Not included

(Council Regulation No 1215/2012, Art. 1(1))

Article 1(1) of Regulation (EU) No 1215/2012 of the European Parliament and Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that a dispute relating to an action brought by a natural person having acquired bonds issued by a Member State, against that State and seeking to contest the exchange of those bonds with bonds of a lower value, imposed on that natural person by the effect of a law adopted in exceptional circumstances by the national legislator, according to which those terms were unilaterally and retroactively amended by the introduction of a collective action clause allowing a majority of holders of the relevant bonds to impose that exchange on the minority, does not fall within ‘civil and commercial matters’ within the meaning of that article.

(see para. 43, operative part)

Case C‑296/17

Wiemer & Trachte GmbH

v

Zhan Oved Tadzher

(Request for a preliminary ruling from the Varhoven kasatsionen sad)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 3(1) — International jurisdiction — Action to set a transaction aside — Exclusive jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened)

Summary — Judgment of the Court (Fourth Chamber), 14 November 2018

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Scope — Matters excluded — Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings — Definition — Actions deriving directly from insolvency proceedings and closely connected therewith — Whether Regulation No 1346/2000 is applicable (Council Regulations No 1346/2000 and No 44/2001, Art. 1(2)(b)) Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — International jurisdiction to open insolvency proceedings — Action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office is in another Member State — Jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened — Exclusive jurisdiction (Council Regulation No 1346/2000, Art. 3(1))

See the text of the decision. (see paras 28-30) Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened to hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive. (see para. 43, operative part)

Summary — Judgment of the Court (Third Chamber), 24 October 2018

1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Jurisdiction clause in a distribution contract — Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier — Application of the jurisdiction clause — Lawfulness

(Council Regulation No 44/2001, Art. 23)

2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Jurisdiction clause in a distribution contract — Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier — Application of the jurisdiction clause — Conditions — Prior finding of an infringement of competition law by a national or European authority. — Exclusion

(Council Regulation No 44/2001, Art. 23)

1. Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the application, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, of a jurisdiction clause within the contract binding the parties is not excluded on the sole ground that that clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law.

(see para. 30, operative part 1)

2. Article 23 of Regulation No 44/2001 must be interpreted as meaning that it is not a prerequisite for the application of a jurisdiction clause, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, that there be a finding of an infringement of competition law by a national or European authority.

(see para. 36, operative part 2)

Summary — Judgment of the Court (First Chamber), 17 October 2018

1. Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Very young child — Risk of irreparable harm to the child’s development — Risk of detriment to the child’s integration in any future new family and social environment

(Rules of Procedure of the Court of Justice, Art. 107)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question seeking an interpretation of the jurisdiction rule in Article 8 of Regulation No 2201/2003 — Question raised concerning a dispute involving relations between the courts of a Member State and those of a third country — Included

(Art. 267 TFEU; Council Regulation No 2201/2003, Art. 8(1))

3. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility — Regulation No 2201/2003 — Concept of habitual residence of the child — Child who has never been physically present in the Member State — No habitual residence in that Member State — Birth which took place in a third country following the father’s coercion of the mother — Detention of the mother and child in a third country against the will of the mother — Breach of the fundamental rights of the mother and child — Irrelevant

(Council Regulation No 2201/2003, Art. 8(1);

1. See the text of the decision.

(see paras 26, 27)

2. See the text of the decision.

(see paras 31-42)

3. Article 8(1) 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, must be interpreted to the effect that a child must have been physically present in a Member State in order to be regarded as habitually resident in that Member State, for the purposes of that provision. Circumstances such as those in the main proceedings, assuming that they are proven, that is to say, first, the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and, secondly, the breach of the mother’s or the child’s rights, do not have any bearing in that regard.

In that regard, it is apparent from recital 12 of Regulation No 2201/2003 that that regulation was drawn up with the objective of meeting the best interests of the child, and to that end it favours the criterion of proximity. The EU legislature considered that the court geographically close to the child’s habitual residence is the court best placed to assess the measures to be adopted in the interests of the child.

Article 8 of Regulation No 2201/2003 gives expression to that objective by establishing a general jurisdiction in relation to parental responsibility in favour of the courts of the Member State in which the child is habitually resident (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 52).

The importance placed by the EU legislature on geographical proximity in order to determine the court which has jurisdiction in matters of parental responsibility is also apparent from Article 13(1) of Regulation No 2201/2003 which bases the jurisdiction of a court of a Member State solely on the fact that the child is present, precisely when the child’s residence could not be qualified as ‘habitual’, for the purposes of Article 8(1) of that regulation, in any Member State and that that jurisdiction may not be determined on the basis of Article 12 of that regulation.

Thus, the Court has held that the recognition of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 61).

It follows from the considerations set out in paragraphs 45 to 52 above that physical presence in the Member State in which the child is allegedly integrated is a condition which necessarily must be satisfied before assessing the stability of that presence and that ‘habitual residence’, for the purposes of Regulation No 2201/2003, may not be established in a Member State which the child has never been to. That interpretation is supported by the position occupied by Article 8(1) of Regulation No 2201/2003 within the jurisdiction rules laid down by that regulation in matters of parental responsibility.

(see paras 48, 49, 51-54, 70, operative part)

Summary — Judgment of the Court (Second Chamber), 4 October 2018

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Recognition and enforcement of judgments — Application of the procedural rules of the Member State in which enforcement is sought to enforcement in the strict sense — Scope — Legislation of the Member State in which enforcement is sought which provides for a time limit for the enforcement of a preventive attachment order — Included

(Council Regulation No 44/2001, Art. 38)

Article 38 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which provides for the application of a time limit for the enforcement of a preventive attachment order, from being applied in the case of an order which has been adopted in another Member State and is enforceable in the Member State in which enforcement is sought.

Since the enforcement, in the strict sense, of a decision issued by a court of a Member State other than the Member State in which enforcement is sought, and which is enforceable in the latter Member State, has not been the subject of harmonisation by the EU legislature, the procedural rules of the Member State in which enforcement is sought are to apply to matters relating to enforcement. In particular, it is clear that, in so far as Regulation No 44/2001 has not laid down rules concerning the enforcement of decisions given by a court of a Member State other than the Member State in which enforcement is sought, the latter remains free to make provision, in its own legal order, for the application of a time limit for enforcing such decisions, which have been recognised and declared enforceable in the latter Member State. In that regard, it is settled case-law that, once that judgment is incorporated into the legal order of the Member State in which enforcement is sought, national legislation of that Member State relating to enforcement applies in the same way as to judgments delivered by national courts (judgment of 13 October 2011, Prism Investments, C‑139/10, EU:C:2011:653, paragraph 40 and the case-law cited). The procedural rules of the Member State in which enforcement is sought alone are applicable. The courts of that Member State are not required to apply any provisions of the national legislation of the Member State of origin which, in respect of the enforcement of decisions given by the courts of the Member State of origin, lay down time limits which differ from those laid down by the law of the Member State in which enforcement is sought.

(see paras 33-36, 51, operative part)

Case C‑337/17

Feniks Sp. z o.o.

v

Azteca Products & Services SL

(Request for a preliminary ruling from the Sąd Okręgowy w Szczecinie)

(Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1215/2012 — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Special jurisdiction — Article 7(1)(a) — Concept of ‘matters relating to a contract’ — Actio pauliana)

Summary — Judgment of the Court (Second Chamber), 4 October 2018

Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 1215/2012—Scope—Matters excluded—Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings—Meaning—Actions deriving directly from insolvency proceedings and closely connected with them—Applicability of Regulation No 1346/2000 (European Parliament and Council Regulation No 1215/2012, Art. 1(2)(b); Council Regulation No 1346/2000) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 1215/2012—Special jurisdiction—Jurisdiction in matters relating to a contract—Meaning—Actio pauliana brought by the person entitled to a debt arising under a contract—Included (European Parliament and Council Regulation No 1215/2012, Art. 7(1)(a))

See the text of the decision. (see paras 30, 31) In a situation such as that at issue in the main proceedings, an actio pauliana, whereby the person entitled to a debt arising under a contract requests that an act by which his debtor has transferred an asset to a third party and which is allegedly detrimental to his rights be declared ineffective in relation to the creditor, is covered by the rule of international jurisdiction provided for in Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As the Court has consistently held, the application of this rule of special jurisdiction presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see, to that effect, judgments of 20 January 2005, Engler, C‑27/02, EU:C:2005:33, paragraph 51; of 18 July 2013, ÖFAB, C‑147/12, EU:C:2013:490, paragraph 33; and of 21 January 2016, ERGO Insurance and Gjensidige Baltic, C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 44). The actio pauliana is based on the creditor’s personal claim against the debtor and seeks to protect whatever security he may have over the debtor’s estate (judgments of 10 January 1990, Reichert and Kockler, C‑115/88, EU:C:1990:3, paragraph 12, and of 26 March 1992, Reichert and Kockler, C‑261/90, EU:C:1992:149, paragraph 17). It thus preserves the interests of the creditor with a view in particular to a subsequent enforcement of the debtor’s obligations (judgment of 26 March 1992, Reichert and Kockler, C‑261/90, EU:C:1992:149, paragraph 28). By this action the creditor seeks a declaration that the transfer of assets by the debtor to a third party has caused detriment to the creditor’s rights deriving from the binding nature of the contract and which correspond with the obligations freely consented to by the debtor. The cause of this action therefore lies essentially in the breach of these obligations towards the creditor to which the debtor agreed. It is thus necessary that in addition to the forum of the defendant’s domicile, there should be a supplementary ground of jurisdiction, namely that prescribed by Article 7(1)(a) of Regulation No 1215/2012, such jurisdiction meeting, with regard to the contractual origin of the relationship between the creditor and debtor, both the requirement for legal certainty and foreseeability and the aim to facilitate the sound administration of justice. (see paras 39-41, 43, 44, 49, operative part)

Case C‑478/17

IQ

v

JP

(Request for a preliminary ruling from the Tribunalul Cluj)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction in matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 15 — Transfer to a court better placed to hear the case — Scope — Article 19 — Lis pendens)

Summary — Judgment of the Court (Fifth Chamber), 4 October 2018

Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility — Regulation No 2201/2003 — Jurisdiction in matters of parental responsibility — Transfer to a court better placed to hear the case — Scope — Transfer to a court that already has jurisdiction as to the substance of the case — Precluded

(Council Regulation No 2201/2003, Art. 15)

Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as not applying in circumstances, such as those in the main proceedings, in which both courts seised have jurisdiction as to the substance of the matter under Articles 12 and 8, respectively, of that regulation.

In that regard, it must be borne in mind that Article 15(1) of Regulation No 2201/2003 provides that the courts of a Member State having jurisdiction as to the substance of a case may transfer that case, or a specific part thereof, to a court of another Member State with which the child has a particular connection, if they consider that that court is better placed to hear the case, and where the transfer is in the best interests of the child. It follows that Article 15(1) of Regulation No 2201/2003 allows the court that normally has jurisdiction to rule on matters of parental responsibility, whether under the general rule set out in Article 8(1) of that regulation or by prorogation of jurisdiction on the basis of Article 12 of that regulation, to transfer its jurisdiction, over all or over a specific part of the case before it, to a court that would not normally have jurisdiction in the matter but which, in the circumstances of the particular case, must be considered to be ‘better placed’ to hear that case. Therefore, the court of another Member State with which the child in question has a particular connection and which is best placed to hear the case, as referred to in Article 15(1) of Regulation No 2201/2003, cannot be the court that normally has jurisdiction as to the substance of the case on the basis of Article 8 or 12 of that regulation.

(see paras 30, 33, 39, 49, operative part)

Case C‑214/17

Alexander Mölk

v

Valentina Mölk

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Hague Protocol on the law applicable to maintenance obligations — Article 4(3) — Application for maintenance lodged by the maintenance creditor with the competent authority of the State where the debtor has his habitual residence — Decision which has acquired the force of res judicata — Subsequent application, lodged with the same authority by the debtor, seeking a reduction in the amount of maintenance awarded — Appearance entered by the creditor — Determination of the applicable law)

Summary — Judgment of the Court (Sixth Chamber), 20 September 2018

Questions referred for a preliminary ruling—Jurisdiction of the Court—Scope—Hague Protocol on the law applicable to maintenance obligations—Included (Art. 267 TFEU; Hague Protocol of 23 November 2007) Judicial cooperation in civil matters—Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations—Hague Protocol on the law applicable to maintenance obligations—Special rules favouring certain creditors—Creditor having seised the competent authority of the State where the debtor has his habitual residence—Application of the law of the forum—Whether that law may also be applied to a subsequent application lodged by the debtor seeking a reduction in the amount of maintenance—Precluded (Hague Protocol of 23 November 2007, Art. 4(3)) Judicial cooperation in civil matters—Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations—Hague Protocol on the law applicable to maintenance obligations—Special rules favouring certain creditors—Creditor having seised the competent authority of the State where the debtor has his habitual residence—Concept of ‘seising’ the competent authority—Appearance entered by the creditor in proceedings initiated by the debtor seeking a reduction in the amount of maintenance—Not included (Hague Protocol of 23 November 2007, Art. 4(3))

See the text of the decision. (see para. 23) On a proper construction of Article 4(3) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009, the result of a situation such as that at issue in the main proceedings, where the maintenance to be paid was set by a decision, which has acquired the force of res judicata, in response to an application by the creditor and, pursuant to Article 4(3) of that protocol, on the basis of the law of the forum designated under that provision, is not that that law governs a subsequent application for a reduction in the amount of maintenance lodged by the debtor against the creditor with the courts of the State where that debtor is habitually resident. By providing that the law of the forum, rather than the law of the State of the habitual residence of the creditor, may be applied first of all, the Hague Protocol provides that creditor with the possibility to choose the former law indirectly, a choice resulting from the creditor lodging his application with the competent authority of the State where the debtor has his habitual residence. That possibility pursues the objective of protecting the creditor, regarded as the weaker party in his dealings with the debtor, by enabling that creditor, de facto, to choose the law applicable to his application. In those circumstances, where the proceedings in which that application was submitted have been closed by a decision which has acquired the force of res judicata, it does not follow from Article 4(3) of the Hague Protocol that the effects of that choice should be extended to new proceedings brought not by the creditor but by the debtor. Moreover, a rule derogating from the rule set out in Article 3 of the Hague Protocol must be interpreted strictly, without going beyond the situation expressly envisaged thereby. Those considerations are borne out by the explanatory report on the Hague Protocol drawn up by Mr Andrea Bonomi (text adopted by the Twenty-First Session of the Hague Conference on Private International Law). As was noted by Mr Bonomi in paragraph 67 of that report, the envisaged derogation from the standard connection to the law of the habitual residence of the creditor may be justified if the creditor himself decides to bring the action in the State where the debtor has his habitual residence, whereas it appears excessive in a situation where the action was initiated in that State by the debtor, in particular with regard to a request for alteration of a decision concerning maintenance obligations. A comparison of Article 4(3) of the Hague Protocol with the provisions of that protocol enabling the parties to choose the law applicable to the maintenance obligation by common agreement, namely Articles 7 and 8 thereof, also supports that analysis. Accordingly, it must be held that Article 4(3) of the Hague Protocol covers only a situation where the creditor indirectly chooses the law of the forum in the context of proceedings which he has initiated before the competent authority of the State where the debtor has his habitual residence and does not extend to subsequent proceedings initiated after the decision in the initial proceedings has acquired the force of res judicata. (see paras 31-36, 42, 46, operative part 1) Article 4(3) of the Hague Protocol of 23 November 2007 must be interpreted as meaning that a creditor does not ‘seise’, for the purposes of that article, the competent authority of the State where the debtor has his habitual residence when that creditor, in the context of proceedings initiated by the debtor before that authority, enters an appearance, for the purposes of Article 5 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, contending that the application should be dismissed on the merits. That provision applies only on two conditions, namely that the authority seised is the authority of the State where the debtor has his habitual residence and that it is the creditor who seises that authority, meaning that the action must thus be initiated by the creditor. In the case of an action initiated by the debtor before the authority of the State where he is habitually resident, the creditor entering an appearance may admittedly result in that authority having jurisdiction, as provided for in Article 5 of Regulation No 4/2009. However, it cannot be inferred from that acceptance of jurisdiction that the creditor has also ‘seised’ the authority of the State where the debtor has his habitual residence for the purposes of Article 4(3) of the Hague Protocol. (see paras 49-51, 53, operative part 2)

Joined Cases C‑325/18 PPU and C‑375/18 PPU

Hampshire County Council

v

C.E.andN.E.

(Requests for a preliminary ruling from the Court of Appeal, Ireland)

(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility — International child abduction — Regulation (EC) No 2201/2003 — Article 11 — Application for return — Hague Convention of 25 October 1980 — Application for a declaration of enforceability — Appeal — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy — Time limit for bringing the appeal — Order authorising enforcement — Enforcement prior to service of the order)

Summary — Judgment of the Court (First Chamber), 19 September 2018

Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Separation and removal of a young child from its mother — Steps taken by a public body to have the child adopted (Rules of Procedure of the Court of Justice, Art. 107; Council Regulation No 2201/2003) Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Recognition and enforcement — Scope — Decision of a court of a Member State directing that a child be returned, made in the absence of an application based on the 1980 Hague Convention — Enforcement of that decision in accordance with the general provisions of Chapter III of the regulation — Lawfulness (Council Regulation No 2201/2003, recital 17 and Chapter III) Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Scope — Concept of ‘civil matters’ — Independent interpretation (Council Regulation No 2201/2003, Art. 1(1)) Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Scope — Concept of ‘parental responsibility’ — Child made a ward of court — Included (Council Regulation No 2201/2003, Arts 1(1)(b) and (2), and 2(7)) Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Recognition and enforcement — Decision directing that a child be made a ward of court and that it be returned declared enforceable in the requested Member State — Enforcement of that decision prior to service of the declaration of enforceability on the parents concerned — Not permissible — Extension of the period for lodging an appeal against the declaration of enforceability — Precluded (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 2201/2003, Art. 33(1) and (5)) Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Provisional and protective measures — Measures adopted by the court having substantive jurisdiction — Injunction directed at a public body of another Member State, preventing it from commencing or continuing adoption proceedings — Lawfulness (Council Regulation No 2201/2003)

See the text of the decision. (see paras 42-44) The general provisions of Chapter III 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, must be interpreted as meaning that, where it is alleged that children have been wrongfully removed, the decision of a court of the Member State in which those children were habitually resident, directing that those children be returned and which is entailed by a decision dealing with parental responsibility, may be declared enforceable in the host Member State in accordance with those general provisions. It must be noted that recital 17 of Regulation No 2201/2003 highlights the complementary nature of that regulation by stating that it complements the provisions of the 1980 Hague Convention, which nevertheless remains applicable. The relationship between the two instruments in question is clarified in Article 11(1) of Regulation No 2201/2003, according to which the courts of a Member State must apply paragraphs 2 to 8 of that article to the return proceedings provided for by the 1980 Hague Convention. It must be pointed out that those provisions do not require a person, body or authority, where the international abduction of a child is alleged, to rely on the 1980 Hague Convention in applying for that child’s prompt return in the State of the child’s habitual residence. Thus, a holder of parental responsibility may apply for the recognition and enforcement, in accordance with the provisions of Chapter III of Regulation No 2201/2003, of a decision relating to parental authority and the return of children that has been made by a court having jurisdiction under Chapter II, Section 2, of Regulation No 2201/2003, even if that holder of parental responsibility has not submitted an application for return based on the 1980 Hague Convention. (see paras 48, 50, 51, 53, 62, operative part 1). See the text of the decision. (see para. 55) The concept of ‘parental responsibility’ is given a broad definition in Article 2(7) of Regulation No 2201/2003, in that it includes 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 (judgments of 27 November 2007, C, C‑435/06, EU:C:2007:714, paragraph 49, and of 26 April 2012, Health Service Executive, C‑92/12 PPU, EU:C:2012:255, paragraph 59). It must be noted that the exercise by a court of its wardship jurisdiction involves the exercise of rights in relation to the welfare and education of the children that would ordinarily be exercised by the parents, for the purposes of Article 1(2)(a) of Regulation No 2201/2003, or aspects of guardianship and curatorship, within the meaning of Article 1(2)(b) of that regulation. As the referring court pointed out, the transfer of the right of custody to an administrative authority also falls within the scope of that regulation. (see paras 57, 58) Article 33(1) of Regulation No 2201/2003, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in a situation such as that at issue in the main proceedings, enforcement of a decision of a court of a Member State which directs that children be made wards of court and that they be returned and which is declared enforceable in the requested Member State, prior to service of the declaration of enforceability of that decision on the parents concerned. Article 33(5) of Regulation No 2201/2003 must be interpreted as meaning that the period for lodging an appeal laid down in that provision may not be extended by the court seised. It must be noted in that regard that the requirement that the decision authorising enforcement be served has a dual function: on the one hand, it serves to protect the rights of the party against whom enforcement is sought and, on the other, it allows, in terms of evidence, the strict and mandatory time limit for appealing provided for in Article 33 of Regulation 2201/2003 to be calculated precisely (see, by analogy, judgment of 16 February 2006, Verdoliva, C‑3/05, EU:C:2006:113, paragraph 34). That requirement of service, with the associated transmission of information about an appeal, ensures that the party against whom enforcement is sought has a right to an effective remedy. Thus, in order to justify the conclusion that it was possible for the party concerned to commence proceedings to challenge a decision authorising enforcement, as provided for in Article 33 of Regulation No 2201/2003, that party must have been aware of the contents of that decision, which presupposes that it was served on that party (see, by analogy, judgment of 14 December 2006, ASML, C‑283/05, EU:C:2006:787, paragraph 40). (see paras 69, 70, 82, operative part 2). Regulation No 2201/2003 must be interpreted as not precluding, in a situation such as that at issue in the main proceedings, a court of one Member State from adopting protective measures in the form of an injunction directed at a public body of another Member State, preventing that body from commencing or continuing, before the courts of that other Member State, proceedings for the adoption of children who are residing there. Furthermore, according to the actual wording of Article 1(3)(b) of Regulation No 2201/2003, the decision on that adoption and the measures preparatory to it do not fall within the scope of the regulation. (see paras 93, 94, operative part 3).

Case C‑304/17

Helga Löber

v

Barclays Bank plc

(Request for a preliminary ruling from the Oberster Gerichtshof)

Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Special jurisdiction — Article 5(3) — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred or may occur — Consumer, domiciled in a Member State, who bought, through a bank established in that Member State, securities issued by a bank established in another Member State — Jurisdiction to hear and determine the tort action brought by that consumer against the bank concerned)

Summary — Judgment of the Court (First Chamber), 12 September 2018

Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Concept—Action seeking to establish liability not falling within the scope of matters relating to a contract (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Place of occurrence of the harmful event—Concept—Place where the damage occurred and place of the event giving rise to it (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Place of occurrence of the harmful event—Concept—Place where the damage, in the form of financial loss in the bank account of the applicant, occurred—Exclusion in the absence of any other connecting factors (Council Regulation No 44/2001, Art. 5(3)) Judicial cooperation in civil matters—Jurisdiction and the enforcement of judgments in civil and commercial matters—Regulation No 44/2001—Special jurisdiction—Jurisdiction in tort, delict or quasi-delict—Tort action brought by an investor against the issuer of a certificate on the basis of the prospectus relating to that certificate—Damage consisting in financial loss which occurred in a bank account of the investor’s with a bank established within the jurisdiction of the courts of the investor’s domicile—Jurisdiction of those latter courts—Conditions (Council Regulation No 44/2001, Art. 5(3))

See the text of the decision. (see para. 19) See the text of the decision. (see para. 22) See the text of the decision. (see paras 23, 24, 30) Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted to the effect that in a situation, such as that in the main proceedings, in which an investor brings, on the basis of the prospectus relating to a certificate in which he or she invested, a tort action against the bank which issued that certificate, the courts of that investor’s domicile, as the courts for the place where the harmful event occurred within the meaning of that provision, have jurisdiction to hear and determine that action, where the damage the investor claims to have suffered consists in financial loss which occurred directly in that investor’s bank account with a bank established within the jurisdiction of those courts and the other specific circumstances of that situation also contribute to attributing jurisdiction to those courts. (see para. 36, operative part)

Le 3 novembre 2016, la High Court of Justice (England & Wales) a rendu une décision concernant la possibilité pour le pouvoir exécutif de déclencher à lui seul le mécanisme de lВ’article 50 TUE suite au referendum dit "Brexit" du 23 juin 2016.Plusieurs individus voulant porter une affaire devant les juridictions dВ’Angleterre et des Pays de Galles, la High Court a nommé Gina Miller et Deir Dos Santos, deux citoyens britanniques, en tant que requérants principaux. DВ’autres intéressés ont participé à la procédure en tant que parties intéressées et intervenants. En outre, des représentants des gouvernements écossais et du Pays de Galles ont assisté à lВ’audience en tant quВ’observateurs.Durant trois jours, les 13, 17 et 18 octobre 2016, lesdites parties ainsi que le Ministre chargé dВ’organiser la sortie de lВ’Union européenne, en tant que partie défenderesse, ont plaidé devant une formation de trois juges, composée du Lord Chief Justice, du Master of the Rolls et dВ’un Lord Justice of Appeal, ce qui reflète lВ’importance accordée à lВ’affaire.LВ’importance de lВ’affaire est également reflétée par la procédure adoptée pour la suite. Exceptionnellement, lВ’appel qui a déjà été introduit par le gouvernement du Royaume-Uni, sera examiné directement par la Supreme Court. Ainsi, lВ’affaire passe outre la Court of Appeal, selon une procédure que lВ’on appelle un "leapfrog appeal". LВ’audience devant la Supreme Court est prévue début décembre 2016.Rappelons quВ’en vertu de lВ’article 50, paragraphe 1, TUE, "[t]out État membre peut décider, conformément à ses règles constitutionnelles, de se retirer de lВ’Union". Le paragraphe 2 précise que "[l]В’État membre qui décide de se retirer notifie son intention au Conseil européen".LВ’élément essentiel de la décision est le constat quВ’une notification conformément à l'article 50 TUE entraînerait inévitablement des modifications du droit national. En effet, la High Court part du principe quВ’une telle notification impliquerait un retrait définitif du Royaume-Uni de lВ’Union. À cet égard, il sera rappelé quВ’en vertu de lВ’article 50, paragraphe 3. TUE, "[les traités cessent dВ’être applicables à LВ’État concerné à partir de la date dВ’entrée en vigueur de lВ’accord de retrait ou, à défaut, deux ans après la notification".La High Court en déduit que les prérogatives dont dispose le Ministre chargé dВ’organiser la sortie du Royaume-Uni de lВ’Union européenne (Crown prerogative) ne permettent pas à celui-ci de procéder à lui seul à la notification prévue à lВ’article 50 TUE (point 111: "does not have power [...] to give notice"), sans pour autant se prononcer sur les modalités concrètes à mettre en Вњuvre à cet effet. Il sera souligné que la High Court ne sВ’est pas prononcé en dernier ressort.Notons enfin que la présente décision diffère dВ’une décision rendue le 28 octobre 2016 par la High Court of Justice in Northern Ireland, dans laquelle cette dernière a jugé que le gouvernement du Royaume-Uni peut à lui seul procéder à une notification conformèrent à lВ’article 50 TUE. En effet, selon elle, une telle notification nВ’entraînerait que probablement des modifications du droit national. La portée de cette décision semble cependant limitée au contexte juridique de 1В’Irlande du Nord. Le requérant a confirmé son intention dВ’interjeter appel devant la Supreme Court.

PRESS SUMMARY

3 August 2016

Moreno (Respondent) v The Motor Insurers’ Bureau (Appellant) [2016] UKSC 52 On appeal from [2015] EWHC 1002 (QB)

JUSTICES: Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson, Lord Hodge

BACKGROUND TO THE APPEAL

Ms Moreno is a UK resident. In May 2011, whilst on holiday in Greece, she was hit by a car. The car was registered in Greece and driven by an uninsured driver. It is not disputed that the driver was responsible for the accident. Ms Moreno suffered very serious injuries.

Ms Moreno has claimed damages from the UK Motor Insurers’ Bureau (“UKMIB”), pursuant to a series of Council Directives (collectively, the “Directives”), culminating in a Sixth Directive 2009/103/EC (the “Sixth Directive”). The Directives are transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003 No 37) (“the 2003 Regulations”).

The purpose of the arrangements introduced by the Directives and the 2003 Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the European Union and to facilitate their recovery of such compensation. They establish a scheme whereby, amongst other things, victims of a motor accident which occurs in one member state can in certain circumstances claim compensation directly from a body in their own member state of residence. The UKMIB is the designated body in the United Kingdom against which such claims can be made.

The operation of the relevant part of the Directives was conditional on the conclusion of a subsequent agreement between compensation bodies and guarantee funds (the “Agreement”), which was reached in April 2002.

The preliminary issue the subject of this appeal is whether the scope of Ms Moreno’s claim to damages is to be determined in accordance with English or Greek law. Her concern is that Greek law would yield a lesser measure of compensation than English law.

At first instance, Gilbart J considered that he was bound by previous Court of Appeal authority (Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208) to hold that the damages are to be determined by English law. Gilbart J granted a “leapfrog” certificate under section 12 of the Administration of Justice Act 1969, which allows for cases to move directly from the High Court to the Supreme Court with its permission, which was granted in July 2015.

JUDGMENT

The Supreme Court unanimously allows the appeal by the Motor Insurers’ Bureau. Lord Mance gives the lead judgment with which the other Justices agree.

The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.uk

REASONS FOR THE JUDGMENT

The 2003 Regulations should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing v La Comercial Internacional de Alimentación (Case C-106/89) [26]. There is no suggestion in the 2003 Regulations or elsewhere, that the domestic legislator intended to do anything other than faithfully implement and give effect to the Directives [28].

Two questions are central to this appeal. The first is whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The second is if they do, whether the language of Regulation 13(2)(b) of the 2003 Regulations reflects this approach, or mandates some different approach, whatever the Directives may have required [29].

As to the first question, viewed as a whole, the Directives were and are a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are “entitled” in respect of any loss or damage caused by vehicles [6-30]. The inference is that the victim of a motor accident is entitled to the same compensation, whether against the driver responsible, his or her insurer, or, that failing, against the motor insurance bureau of the State of the accident or indeed the compensation body established in the victim’s state of residence [31].

Clauses 7.2 and 8.2 of the Agreement provided that the compensation body in the victim’s country of residence was to “apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred”. The Agreement needs to be viewed as part of the wider scheme, which in turn needs to be construed as a consistent whole [33].

The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim’s entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference which route is chosen to the measure of liability of the body or person ultimately responsible. Since the position as a matter of European Union law is clear, there is no need for a reference to the Court of Justice [35-39].

As to the second question, the 2003 Regulations were consistent with the scheme of the Directives [4041]. The loss and damage recoverable from the UKMIB is said in Regulation 12(4)(b) to be that “properly recoverable in consequence of that accident by the injured party from [the insured] person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident”. The most obvious purpose of this is to determine which of the United Kingdom’s three legal systems should apply, rather than prescribing the measure of recovery in such proceedings [42]. The decisions in Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609 and Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543, [2014] 1 Lloyd’s Rep IR 75 should be over-ruled in relation to the meaning of regulation 13(2)(b) [43].

References in square brackets are to paragraphs in the judgment

NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html

Par arrêt du 13 avril 2016, la Supreme Court sВ’est prononcée sur lВ’applicabilité de lВ’article 15 du règlement (CE) nº 2201/2003 relatif à la compétence, la reconnaissance et l'exécution des décisions en matière matrimoniale et en matière de responsabilité parentale (règlement "Bruxelles II bis"), aux recours en matière de protection de lВ’enfance fondés sur le droit public. En principe, les juridictions de lВ’État où lВ’enfant réside habituellement sont compétentes pour statuer. Toutefois, ledit article 15 permet, à titre dВ’exception, le renvoi de lВ’affaire vers une juridiction mieux placée. Bien quВ’une décision préjudicielle de la Cour sur lВ’applicabilité dВ’une telle exception auxdits recours soit attendue prochainement dans lВ’affaire CAFA, C-428/15 (PPU), la Supreme Court a estimé que le libellé dudit article était clair et sВ’est prononcée sur celui-ci.Ainsi, la Supreme Court a jugé les juridictions britanniques compétentes pour statuer en ce qui concerne la garde de deux ressortissantes hongroises nées au Royaume-Uni et y ayant toujours vécu. Victimes de maltraitance et de négligence, celles-ci avaient été séparées de leurs parents et placées dans une famille dВ’accueil, également au Royaume-Uni. Par la suite, lВ’autorité locale avait lancé une procédure dВ’adoption pour les enfants, sans le consentement de leurs parents. Toutefois, entre-temps la mère, qui était retournée en Hongrie, avait demandé, en vertu de lВ’article 15 du règlement Bruxelles II bis, le renvoi des questions concernant la garde de ses enfants devant les juridictions hongroises.La Supreme Court a jugé que lВ’intérêt supérieur des enfants exigeait une décision sans plus attendre. Dès lors, elle a rendu une décision sВ’appuyant sur lВ’hypothèse que ledit article 15 sВ’applique aux recours en matière de protection de lВ’enfance fondés sur le droit public, sans attendre que la Cour se prononce sur ce point.Selon la Supreme Court, il fallait déterminer si un transfert de juridiction était dans lВ’intérêt supérieur de lВ’enfant. Le transfert vers les juridictions hongroises aurait exclu la possibilité pour les enfants de demeurer dans la famille dВ’accueil où ils étaient placés depuis longtemps, ce qui aurait été contraire à leur intérêt supérieur.

PRESS SUMMARY

22 June 2016

In the matter of D (A Child) [2016] UKSC 34 On appeal from [2016] EWCA Civ 12

JUSTICES: Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Wilson, Lord Hughes

BACKGROUND TO THE APPEAL

These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England. The family returned to England after the birth. The parents separated in 2007 and DD has lived in England since then in the care of his mother. The father returned to Romania in 2009 but has maintained a significant relationship with his son. He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father.

The father applied for the recognition and enforcement of this custody order by the English court in February 2014. These proceedings are governed by the Brussels II (Revised) Regulation (‘BIIR’). DD was made a party. In July 2014 a High Court judge refused the father’s application, applying article 23(b) BIIR which provides that a judgment should not be recognised ‘if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought’. The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings. The Court of Appeal upheld the judge’s order.

The father sought to pursue a further appeal to the Supreme Court. The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR.

JUDGMENT

The Supreme Court unanimously rules that it does not have jurisdiction to hear the father’s appeal, which must therefore be struck out. Lady Hale gives the only substantive judgment.

REASONS FOR THE JUDGMENT

Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal. The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12].

The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process. Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. The UK has provided in its list of notifications under article 68 that appeals in England and Wales

The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.uk under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16]. It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal. The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each other’s judgments without too many avenues for challenge [26]. The provisions of BIIR and the notification under article 68 are directly applicable in the UK. Article 34 does not depend for its implementation upon the member state’s choice of avenue of appeal and in any event the UK did make a notification [37]. It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38]. It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out. References in square brackets are to paragraphs in the judgment NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html

Par arrêt du 13 avril 2016, la Supreme Court sВ’est prononcée sur lВ’applicabilité de lВ’article 15 du règlement (CE) nº 2201/2003 relatif à la compétence, la reconnaissance et l'exécution des décisions en matière matrimoniale et en matière de responsabilité parentale (règlement "Bruxelles II bis"), aux recours en matière de protection de lВ’enfance fondés sur le droit public. En principe, les juridictions de lВ’État où lВ’enfant réside habituellement sont compétentes pour statuer. Toutefois, ledit article 15 permet, à titre dВ’exception, le renvoi de lВ’affaire vers une juridiction mieux placée. Bien quВ’une décision préjudicielle de la Cour sur lВ’applicabilité dВ’une telle exception auxdits recours soit attendue prochainement dans lВ’affaire CAFA, C-428/15 (PPU), la Supreme Court a estimé que le libellé dudit article était clair et sВ’est prononcée sur celui-ci.Ainsi, la Supreme Court a jugé les juridictions britanniques compétentes pour statuer en ce qui concerne la garde de deux ressortissantes hongroises nées au Royaume-Uni et y ayant toujours vécu. Victimes de maltraitance et de négligence, celles-ci avaient été séparées de leurs parents et placées dans une famille dВ’accueil, également au Royaume-Uni. Par la suite, lВ’autorité locale avait lancé une procédure dВ’adoption pour les enfants, sans le consentement de leurs parents. Toutefois, entre-temps la mère, qui était retournée en Hongrie, avait demandé, en vertu de lВ’article 15 du règlement Bruxelles II bis, le renvoi des questions concernant la garde de ses enfants devant les juridictions hongroises.La Supreme Court a jugé que lВ’intérêt supérieur des enfants exigeait une décision sans plus attendre. Dès lors, elle a rendu une décision sВ’appuyant sur lВ’hypothèse que ledit article 15 sВ’applique aux recours en matière de protection de lВ’enfance fondés sur le droit public, sans attendre que la Cour se prononce sur ce point.Selon la Supreme Court, il fallait déterminer si un transfert de juridiction était dans lВ’intérêt supérieur de lВ’enfant. Le transfert vers les juridictions hongroises aurait exclu la possibilité pour les enfants de demeurer dans la famille dВ’accueil où ils étaient placés depuis longtemps, ce qui aurait été contraire à leur intérêt supérieur.

Par arrêt du 13 avril 2016, la Supreme Court sВ’est prononcée sur lВ’applicabilité de lВ’article 15 du règlement (CE) nº 2201/2003 relatif à la compétence, la reconnaissance et l'exécution des décisions en matière matrimoniale et en matière de responsabilité parentale (règlement "Bruxelles II bis"), aux recours en matière de protection de lВ’enfance fondés sur le droit public. En principe, les juridictions de lВ’État où lВ’enfant réside habituellement sont compétentes pour statuer. Toutefois, ledit article 15 permet, à titre dВ’exception, le renvoi de lВ’affaire vers une juridiction mieux placée. Bien quВ’une décision préjudicielle de la Cour sur lВ’applicabilité dВ’une telle exception auxdits recours soit attendue prochainement dans lВ’affaire CAFA, C-428/15 (PPU), la Supreme Court a estimé que le libellé dudit article était clair et sВ’est prononcée sur celui-ci.Ainsi, la Supreme Court a jugé les juridictions britanniques compétentes pour statuer en ce qui concerne la garde de deux ressortissantes hongroises nées au Royaume-Uni et y ayant toujours vécu. Victimes de maltraitance et de négligence, celles-ci avaient été séparées de leurs parents et placées dans une famille dВ’accueil, également au Royaume-Uni. Par la suite, lВ’autorité locale avait lancé une procédure dВ’adoption pour les enfants, sans le consentement de leurs parents. Toutefois, entre-temps la mère, qui était retournée en Hongrie, avait demandé, en vertu de lВ’article 15 du règlement Bruxelles II bis, le renvoi des questions concernant la garde de ses enfants devant les juridictions hongroises.La Supreme Court a jugé que lВ’intérêt supérieur des enfants exigeait une décision sans plus attendre. Dès lors, elle a rendu une décision sВ’appuyant sur lВ’hypothèse que ledit article 15 sВ’applique aux recours en matière de protection de lВ’enfance fondés sur le droit public, sans attendre que la Cour se prononce sur ce point.Selon la Supreme Court, il fallait déterminer si un transfert de juridiction était dans lВ’intérêt supérieur de lВ’enfant. Le transfert vers les juridictions hongroises aurait exclu la possibilité pour les enfants de demeurer dans la famille dВ’accueil où ils étaient placés depuis longtemps, ce qui aurait été contraire à leur intérêt supérieur.

PRESS SUMMARY

13 April 2016

In the matter of N (Children) [2016] UKSC 15 On appeal from [2015] EWCA Civ 1112

JUSTICES: Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath

BACKGROUND TO THE APPEAL

This question in this appeal is whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls. They are Hungarian nationals but were born and have been resident in England all their lives. Under article 8(1) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as ‘Brussels II Revised’) the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. The issue is whether the exception to this rule, found in article 15, permitting the transfer of certain proceedings to a court in another member state if it is ‘better placed’ to hear the case and this would be in the best interests of the child, should apply in this case.

The parents of the girls are Hungarian nationals, who moved to England in 2011. The older girl (‘Janetta’) was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl (‘Ella’) in May 2013. Due to the conditions of extreme squalor in which

Janetta was found to be living, and the absence of medical attention for Ella’s birth, both girls were removed from their parents that day and have been living with foster carers ever since. Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority (‘HCA’) which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors. The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised. The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent.

The High Court granted the mother’s application (supported by the HCA) to request the transfer of the proceedings under article 15. The Court of Appeal dismissed the appeal brought by the Children’s Guardian and local authority. The Children’s Guardian appeals to the Supreme Court. The issues were the proper approach to the assessment of the child’s best interests for the purposes of article 15 and the correctness of the decision to transfer in this case.

JUDGMENT

The Supreme Court unanimously allows the appeal, setting aside the request for a transfer of the proceedings to Hungary and returning the case to the High Court. Lady Hale gives the only judgment.

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REASONS FOR THE JUDGMENT

The context in which the question of jurisdiction arises is important. Free movement of workers and their families within the EU has led to many children residing in states of which they are not nationals. Inevitably some of them require protection from ill-treatment or neglect, or the risk of it. In every case it is necessary for the court to consider whether the case should be transferred to another state [2]. It is particularly important where the English court might exercise its power to place children for adoption without parental consent, on the basis that the welfare of the child requires this, as this power is unavailable in many other member states [3].

Although the question of the applicability of article 15 to public law care proceedings is currently the subject of a pending reference to the Court of Justice of the European Union in a case from Ireland, the Supreme Court proceeds on the assumption that article 15 is capable of applying and reviews the decisions of the courts below on their merits, rather than making a further reference. The best interests of the girls requires a decision on their future without yet further delay [35, 54]. As for the correct approach to article 15, the language is simple and clear and the court can apply it to the facts of this case without awaiting the outcome of the reference [57].

The principal issue is the nature of the ‘best interests’ assessment in article 15 and whether it is limited to questions relevant to the choice of forum, as the judge had found. The addition of the best interests test is intended to be an additional safeguard for the child, consistent with the rights of children found in article 24 of the Charter of Fundamental Rights of the European Union [41-42]. While a number of factors will be relevant both to the question of whether a court is ‘better placed’ to hear the proceedings and of whether transfer is in the ‘best interests’ of the child, these are separate questions and must be addressed separately. The answer to the second does not inexorably follow from the first [43]. The question is whether the transfer (rather than the eventual outcome) is in the child’s best interests but the impact of the transfer on the welfare of the child and on the choices available to the court deciding the eventual outcome must be considered [44].

In the present case, the short term effect of the transfer would be to remove the girls from the home where Ella had lived for virtually her whole life and Janetta for most of hers, where they were happy and settled, to an unfamiliar foster placement in Hungary; and the long term effect would be to rule out one possible option for their future care and upbringing, which was to remain in their present home either through adoption, or a special guardianship order or ordinary residence order. This is not necessarily the outcome which the court should eventually decide, as questions of maintaining links with the girls’ extended family in Hungary and ethnic background will also be important factors [4546]. But the judge failed to consider whether the English court could achieve the same outcomes in Hungary as the Hungarian courts, without the need to transfer the case, which would also preserve the options to keep the girls in their present home [48-49]. The English court was also better placed to decide the outcome as it had already heard all the evidence that those involved wished to put before it [50]. These were crucial factors which had been left out of account [51].

The judge had been wrong to apply article 15 to the placement order proceedings but this did not in itself vitiate his decision to transfer the care proceedings. He had the power to stay the placement order proceedings under the wide case management powers of the court and, if it had been right to uphold the transfer, then it would clearly have been right to stay the placement order proceedings [53].

The case is therefore returned to the High Court to determine the future arrangements for the girls, with updated evidence. The full range of outcomes will be open to the court, not simply the stark choice between closed adoption and a foster placement in Hungary, and the judge will apply the extended guidance given by the Court of Appeal in this case [61].

References in square brackets are to paragraphs in the judgment

NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available http://supremecourt.uk/decided-cases/index.html

Par arrêt du 13 avril 2016, la Supreme Court s’est prononcée sur l’applicabilité de l’article 15 du règlement (CE) nº 2201/2003 relatif à la compétence, la reconnaissance et l'exécution des décisions en matière matrimoniale et en matière de responsabilité parentale (règlement "Bruxelles II bis"), aux recours en matière de protection de l’enfance fondés sur le droit public. En principe, les juridictions de l’État où l’enfant réside habituellement sont compétentes pour statuer. Toutefois, ledit article 15 permet, à titre d’exception, le renvoi de l’affaire vers une juridiction mieux placée. Bien qu’une décision préjudicielle de la Cour sur l’applicabilité d’une telle exception auxdits recours soit attendue prochainement dans l’affaire CAFA, C-428/15 (PPU), la Supreme Court a estimé que le libellé dudit article était clair et s’est prononcée sur celui-ci.

Ainsi, la Supreme Court a jugé les juridictions britanniques compétentes pour statuer en ce qui concerne la garde de deux ressortissantes hongroises nées au Royaume-Uni et y ayant toujours vécu. Victimes de maltraitance et de négligence, celles-ci avaient été séparées de leurs parents et placées dans une famille d’accueil, également au Royaume-Uni. Par la suite, l’autorité locale avait lancé une procédure d’adoption pour les enfants, sans le consentement de leurs parents. Toutefois, entre-temps la mère, qui était retournée en Hongrie, avait demandé, en vertu de l’article 15 du règlement Bruxelles II bis, le renvoi des questions concernant la garde de ses enfants devant les juridictions hongroises.

La Supreme Court a jugé que l’intérêt supérieur des enfants exigeait une décision sans plus attendre. Dès lors, elle a rendu une décision s’appuyant sur l’hypothèse que ledit article 15 s’applique aux recours en matière de protection de l’enfance fondés sur le droit public, sans attendre que la Cour se prononce sur ce point.

Selon la Supreme Court, il fallait déterminer si un transfert de juridiction était dans l’intérêt supérieur de l’enfant. Le transfert vers les juridictions hongroises aurait exclu la possibilité pour les enfants de demeurer dans la famille d’accueil où ils étaient placés depuis longtemps, ce qui aurait été contraire à leur intérêt supérieur.