Key facts of the case:
Judicial cooperation in civil matters – Matrimonial matters and matters of parental responsibility – Regulation (EC) No 2201/2003 – Provisional measures concerning custody – Decision enforceable in a Member State – Wrongful removal of the child – Other Member State – Other court – Custody of the child granted to the other parent – Jurisdiction – Urgent preliminary ruling procedure.
Outcome of the case:
On those grounds, the Court (Third Chamber) hereby rules:
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, must be interpreted as not allowing, in circumstances such as those of the main proceedings, a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction under that regulation as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State.
6) According to recital 33 in the preamble to the regulation:
‘This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union [proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1, “the Charter”)]. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter …’
53) Finally, the above considerations are supported by the requirements which follow from recital 33 in the preamble to Regulation No 2201/2003, which states that the regulation recognises the fundamental rights and observes the principles of the Charter, seeking in particular to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter.
54) One of those fundamental rights of the child is the right, set out in Article 24(3) of the Charter, to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child.
58) It is true that, under Article 24(3) of the Charter, an exception may be made to the child’s fundamental right to maintain on a regular basis a personal relationship and direct contact with both parents if that interest proves to be contrary to another interest of the child.