VIEW OF ADVOCATE GENERAL
WATHELET
delivered on 29 October 2015 1(1)
Case C‑455/15 PPU
P
v
Q
(Request for a preliminary ruling from the
Varbergs tingsrätt (District Court, Varberg (Sweden))
(Area of freedom, security and justice — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility — Regulation (EC) No 2201/2003 — Principle of the mutual recognition of judgments — Ground of non-recognition of a judgment in a matter of parental responsibility — Article 23(a) — Judgment manifestly contrary to the public policy of the Member State in which recognition is sought — Article 24 — Prohibition of review of the jurisdiction of the court of the Member State of origin)
I – Introduction
1. This request for a preliminary ruling of 25 August 2015, received at the Court on 28 August 2015, asks the Court to rule on the scope of Articles 23(a) and 24 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)
2. The request has been made in the course of a dispute between P and Q concerning custody of one of their two daughters.
II – Legal framework
A – EU law
3. Article 2 of Regulation No 2201/2003, headed ‘Definitions’, provides:
‘For the purposes of this Regulation:
…
(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;
…’
4. Article 8 of Regulation No 2201/2003, headed ‘General jurisdiction’, provides:
‘1. 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.
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.’
5. Article 15 of Regulation No 2201/2003, entitled ‘Transfer to a court better placed to hear the case’, states:
‘1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court’s own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child’s nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.’
6. Article 20 of that regulation, entitled ‘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.’
7. Article 21(1) of Regulation No 2201/2003, entitled ‘Recognition of a judgment’, states:
‘A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.’
8. Article 23 of Regulation No 2201/2003, entitled ‘Grounds of non-recognition for judgments relating to parental responsibility’, provides:
‘A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
…’
9. Article 24 of that regulation, headed ‘Prohibition of review of jurisdiction of the court of origin’, provides:
‘The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in ... and Article 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.’
10. Article 26 of that regulation, headed ‘Non-review as to substance’, provides:
‘Under no circumstances may a judgment be reviewed as to its substance.’
11. Article 27 of that regulation, entitled ‘Stay of proceedings’, provides:
‘1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.
…’
B – The 1980 Hague Convention
12. Article 13 of the Convention on the civil aspects of international child abduction, concluded on 25 October 1980 in the Hague (‘the 1980 Hague Convention’), provides:
‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.’
III – The dispute in the main proceedings and the question referred
13. P and Q have had two children together, the first, V, was born in 2000 and the second, S, was born in 2009.
14. While P and Q had become a couple in 1997, the Šilutės rajono apylinkės teismas (District Court, Šilutė, Lithuania) terminated their marriage on 6 February 2006 (3) and ruled that V was to reside with her mother but the rights of custody were shared between both parents.
15. In 2005, however, the family had left Lithuania to move to Sweden, where the parents and the child were registered in the civil register in 2006. S was born in Sweden in 2009. Both children speak Swedish and attended school in Falkenberg in Sweden, where most of the people they knew lived.
16. On 27 November 2013, P discovered that Q and the two children had disappeared. In the course of dealings with the social services of the municipality of Falkenberg, which started an investigation, Q claimed that she and the children had been the victims of offences committed by P. The offences were reported to the police and Q and the children were placed in protected housing. Some months later, the preliminary investigation against P was dropped but he was prohibited from having contact with the children.
17. On 29 March 2014, Q took her two children to Lithuania. At that time, P and Q shared rights of custody over both children, (4) who, on 31 March 2014, were registered in the civil register of the municipality of Šilutė in Lithuania.
18. On 8 April 2014, Q brought proceedings against P before the Šilutės rajono apylinkės teismas (District Court, Silutė), asking that court to make an interim order concerning the residence and sole custody of S (5) and awarding her maintenance for both children.
19. On 11 April 2014, P brought proceedings against Q before the referring court, the Varbergs tingsrätt (District Court, Varberg), seeking an interim order granting him sole custody of his two children.
20. On the same day, the Šilutės rajono apylinkės teismas (District Court, Šilutė) made an interim order that S should live with her mother.
21. In June 2014, P made an application to the Utrikesdepartementet (Ministry of Foreign Affairs) of the Kingdom of Sweden for the return of the children under the 1980 Hague Convention.
22. On 30 July 2014, P brought proceedings before the Šilutės rajono apylinkės teismas (District Court, Šilutė) asking, inter alia, to be granted sole custody of V. (6) Those proceedings were joined to the proceedings instituted by Q on 8 April 2014.
23. On lodging her response to P’s application on 2 September 2014, Q requested that the action brought by P be dismissed. It emerged from that response that V had been treated in a medical establishment in Klaipeda (Lithuania) for post-traumatic stress and that, according to medical reports, the child reacted negatively to any contact with her father, P.
24. On 29 September 2014, P asked the same court not to examine Q’s action for custody of S given that, in his view, that court did not have jurisdiction.
25. On 1 August 2014, P made an application to the Vilniaus apygardos teismas (Regional Court, Vilnius) for S to be returned to the State where she had been habitually resident, namely Sweden. On 18 August 2014, Q lodged before the same court a response to that application in which she disputed the allegation that S’s removal to Lithuania was illegal, emphasised the father’s intolerable behaviour towards his minor children and requested that P’s application be dismissed.
26. On 4 September 2014, the Vilniaus apygardos teismas (Regional Court, Vilnius) dismissed P’s application for the return of the children and, on 21 October 2014, the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) upheld that decision, which was based on Article 13 of the 1980 Hague Convention.
27. Following the latter decision, the Swedish central authority, the Ministry of Foreign Affairs, (7) transmitted documents to the referring court in accordance with Article 11(6) of Regulation No 2201/2003.
28. On 18 October 2014, after a preliminary hearing in which Q did not participate, the referring court made an interim order granting P sole custody of S.
29. On 18 February 2015, the Šilutės rajono apylinkės teismas (District Court, Šilutė) ordered that S should live with Q and that P should pay maintenance for both children (‘the judgment at issue’). That judgment shows that P had withdrawn the application for custody of V which he had made on 30 July 2014.
30. The referring court considers that its jurisdiction is based on Article 8(1) of Regulation No 2201/2003 since, at the time when proceedings were brought before the Šilutės rajono apylinkės teismas (District Court, Šilutė), on 8 April 2014, and before itself, on 11 April 2014, both children were habitually resident in Sweden within the meaning of that provision.
31. Before the referring court, P submits that, for that court to remain seised of the action, the judgment at issue should not be recognised. The non-recognition must, in his view, be based on Article 23(a) of Regulation No 2201/2003. P recognises that, in accordance with Article 24 of that regulation, there is a general prohibition on reviewing the jurisdiction of the court of the Member State of origin. He argues, however, that that provision does not refer to Article 15 of the same regulation, on which the Šilutės rajono apylinkės teismas (District Court, Šilutė) based its jurisdiction. In his submission, that court infringed the latter provision by unilaterally deciding to rule on the admissibility of the action.
32. P further submits that the Šilutės rajono apylinkės teismas (District Court, Šilutė) concluded, moreover, that, since a Lithuanian court had refused to order the child’s return on the basis of Article 13 of the 1980 Hague Convention, that child was now habitually resident in Lithuania. This, he argues, is at odds with the Court’s finding in paragraph 44 of its judgment in Povse (C‑211/10 PPU, EU:C:2010:400) that ‘the unlawful removal of a child should not, in principle, have the effect of transferring jurisdiction from the courts of the Member State where the child was habitually resident immediately before removal to the courts of the Member State to which the child was taken, even if, following the abduction, the child has acquired a habitual residence in the latter Member State’.
33. While accepting that the public policy clause must be interpreted restrictively, P submits that a margin of discretion remains in cases where a serious error has been committed by the foreign court. In his view, the Šilutės rajono apylinkės teismas (District Court, Šilutė) committed such a serious error when, intentionally or unintentionally, it infringed not only Article 15 of Regulation No 2201/2003 but also the fundamental principle that, in cases of child abduction, it is ultimately for the courts of the child’s original country of residence to decide.
34. Before the referring court, Q submitted that Article 24 of Regulation No 2201/2003 prohibits review of the jurisdiction of the court of a Member State. The only case in which the judgment at issue could be refused recognition would be if it were contrary to public policy. According to Q, this is not the case, since it is clear from the investigation that P is not fulfilling his paternal obligations properly and that S must therefore remain with her mother. That has been found in four different sets of proceedings. In addition, the children attend school in Lithuania and there is no risk to their health or development. The Vilniaus apygardos teismas (Regional Court, Vilnius) and the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) held that the two children had been lawfully removed to Lithuania with their mother. The referring court has no reason to doubt the assessment made by the authorities [including the Service for the Protection of Children’s Rights within the local authority for the district of Šilutė (Šilutės rajono savivaldybės administracijos vaiko teisių apsaugos skyrius)] and courts of Lithuania.
35. Q also observes that, until the judgment at issue was delivered, P took an active part in the proceedings before the Lithuanian courts and had available to him all the procedural remedies necessary to appeal against the decisions made. Furthermore, he withdrew on his own initiative his application for V’s residence to be established with him, and thereby accepted that V should live with her mother in Lithuania. Consequently, by seeking custody of S, P is infringing the rights and legitimate interests of both children.
36. In those circumstances, the Varbergs tingsrätt (District Court, Varberg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Should the [referring court], in accordance with Article 23(a) of [Regulation No 2201/2003] or any other provision and notwithstanding Article 24 of that regulation, refuse to recognise the [judgment at issue] ... and consequently continue the proceedings in the custody case pending before [the referring court]?’
IV – The urgent procedure and the procedure before the Court
37. The referring court asked for the present reference for a preliminary ruling to be dealt with under the urgent preliminary ruling procedure pursuant to Article 107 of the Rules of Procedure of the Court. Referring to the judgment in Detiček (C‑403/09 PPU, EU:C:2009:810), it gave as the reason for its request the fact that, since the child in question was ‘abducted’, as it puts it, on 29 March 2014, P has been unable to meet her. Any extension of the proceedings would be contrary to the child’s interests and affect her relationship with her father. In order to ensure that the legal uncertainty did not persist, it was necessary for the Court to act swiftly so that the dispute could be definitively settled.
38. The Fourth Chamber of the Court, after hearing me, decided, on 9 September 2015, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure. In addition, that Chamber decided, pursuant to Article 109(3) of the Rules of Procedure, to invite the Republic of Lithuania to provide all relevant information in writing on the present case. The Fourth Chamber also asked the parties to the main proceedings, the Kingdom of Sweden and the Republic of Lithuania to answer a number of questions, preferably in writing or otherwise at the hearing.
39. Written observations were submitted by P, the Kingdom of Sweden, (8) the Republic of Lithuania and the European Commission. P, Q, the Kingdom of Spain, the Republic of Lithuania and the Commission presented oral argument at the hearing on 27 October 2015.
V – Analysis of the question referred
A – Observations of the parties
40. P submits that the special feature of the case in the main proceedings lies in the fact that the judgment at issue concerning the custody of S was delivered after a judgment of non-return but before the court of the Member State of origin was able to decide whether or not the child should be returned.
41. He considers that the infringement by the Šilutės rajono apylinkės teismas (District Court, Šilutė) of the principles underlying the system applicable to wrongful abductions and the fact that it declared itself to have jurisdiction notwithstanding that the question of whether or not the child in question should be returned was pending before a court of the Member State of origin justify the non-recognition of the judgment at issue. P reiterates the citation from the judgment in Povse (C‑211/10 PPU, EU:C:2010:400, paragraph 44) on which he had relied before the referring court. (9)
42. P takes the view that, in the judgment at issue, the Šilutės rajono apylinkės teismas (District Court, Šilutė) does not provide a clear indication of the factors on the basis of which it assumes jurisdiction. According to P, that court based its jurisdiction on a general line of reasoning concerning the best interests of the child or, in the alternative, on a completely erroneous interpretation of Article 15 of Regulation No 2201/2003. He observes that ‘when Article 24 provides that the test of public policy may not be applied to the rules relating to jurisdiction, it is referring to Articles 3 to 14. After all, the objection at issue here does not concern the Lithuanian court’s assessment of the way in which one of those articles is to be applied, but the fact that it declared itself, autonomously and in a manner contrary to the obligation to obtain the consent [of the referring court], to have jurisdiction under Article 15 or, in the alternative, with complete disregard for the rules laid down in Regulation No 2201/2003.’
43. P argues that the principle that it is for the court of the child’s Member State of origin to rule definitively on questions concerning the custody and possible return of the child is fundamental to the rules on wrongful abduction laid down in Regulation No 2201/2003. In his view, if the judgment at issue could not be refused recognition in such circumstances, the very principles underlying the system applicable to wrongful abductions of children as provided for in Regulation No 2201/2003 could very easily be cast aside.
44. The Republic of Lithuania considers that, pursuant to Article 21 of Regulation No 2201/2003, the judgment at issue must be recognised in Sweden. It submits that Article 23 of that regulation sets out an exhaustive list of the grounds of non-recognition of judgments relating to parental authority. The Republic of Lithuania submits that one of those grounds is the fact of being manifestly contrary to the public policy of the State in which recognition is sought, which, according to Article 23, must be interpreted in the light of the best interests of the child. It further observes that, in accordance with Article 24 of Regulation No 2201/2003, however, the public order clause cannot be relied on for the purposes of reviewing the jurisdiction of the courts of the Member State of origin, in this instance the Lithuanian courts. Moreover, Article 26 of the same regulation provides in particular that under no circumstances may a judgment be reviewed as to its substance.
45. Notwithstanding the foregoing, the Republic of Lithuania submits that, in the judgment at issue, the Šilutės rajono apylinkės teismas (District Court, Šilutė) took into account, on the one hand, the judgment of non-return delivered by the Vilniaus apygardos teismas (Regional Court, Vilnius) and the order of the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) and, on the other hand, the wording of Article 15(3) of Regulation No 2201/2003, ‘which provides in particular that the child shall be considered to have a particular connection to a Member State ... if that Member State is the place of the child’s nationality (both children being nationals of the Republic of Lithuania)’.
46. So far as concerns the judgment of non-return, the Republic of Lithuania points out that the Vilniaus apygardos teismas (Regional Court, Vilnius) and the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) found that S had not been wrongfully removed.
47. The Republic of Lithuania therefore considers that, given that the child’s removal was legitimate, that almost a year has passed since the child was removed, that the children are attending school and that other signs of integration are present, ‘the Šilutės rajono apylinkės teismas (District Court, Šilutė) rightly and lawfully relied on those circumstances in assuming jurisdiction and in deciding that it was the [most] appropriate court to examine the case’.
48. The Republic of Lithuania also submits that the Šilutės rajono apylinkės teismas (District Court, Šilutė) took account of Article 15 of Regulation No 2201/2003 only in so far as it furnishes one of the criteria for establishing which court is best placed to examine a case and declared itself to have jurisdiction only after finding the child’s removal from Sweden to be lawful and holding itself to be the court of the place where the child is habitually resident and to have jurisdiction on that account under Article 8 of Regulation No 2201/2003.
49. At the hearing of 27 October 2015, the Kingdom of Spain observed that, although the infringement of a rule on jurisdiction was not in itself sufficient to support the non-recognition of a judgment, pursuant to Articles 23(a) and 24 of Regulation No 2201/2003, a judgment might be refused recognition where the infringement of the rules on jurisdiction is manifest and non-recognition serves the best interests of the child.
50. The Commission takes the view that the concept of ‘public policy’ must be interpreted strictly, since it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation, that is to say the free movement of judgments, and can therefore be relied on only in exceptional cases. (10) Moreover, the Commission argues, Article 23(a) of Regulation No 2201/2003 cannot be relied on in order to refuse to recognise a judgment on the sole ground that the judgment is manifestly contrary to public policy, since that provision requires that account be taken of the child’s best interests.
51. The Commission goes on to observe that Article 24 of Regulation No 2201/2003 states that the test of public policy referred to in Article 23(a) of that regulation may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14 thereof. It is therefore of the opinion that that regulation excludes any review of the jurisdiction of the court of the Member State of origin. The Commission considers that the reason Article 15 of that regulation is not mentioned in Article 24 is that there is no need for it to be mentioned, the general principle being that the jurisdiction of the court of the Member State of origin is not open to review.
52. The Commission contends that, although the Member State in which recognition is sought is not entitled to review the jurisdiction of the Member State of origin, it may none the less conduct a general review in the light of public policy.
53. The Commission submits that the Šilutės rajono apylinkės teismas (District Court, Šilutė) held that the children had acquired their habitual residence in Lithuania after the judgment of non-return. It is of the view that that position is open to challenge because, according to the judgment in Povse (C‑211/10 PPU, EU:C:2010:400, paragraph 44), the fact that a Member State refuses to order the return of a child does not have the effect of transferring jurisdiction to the courts of that Member State.
54. The Commission also considers that, even assuming that the children were habitually resident in Lithuania, the Šilutės rajono apylinkės teismas (District Court, Šilutė) based its jurisdiction on Article 15 of Regulation No 2201/2003. According to the Commission, it is difficult to understand why the Lithuanian court took that approach. In its submission, if the Lithuanian court had genuinely considered that the children were habitually resident in Lithuania, it would have had to base its jurisdiction on Article 8 of Regulation No 2201/2003. Moreover, in applying Article 15 of Regulation No 2201/2003, that court neither complied with the conditions which that article lays down nor applied the procedure which it prescribes.
55. According to the Commission, one of the fundamental principles in the European area of justice, including in Sweden and in Lithuania, is mutual trust based on sincere cooperation between the courts. It takes the view that a manifest and improper failure to comply with the rules in the European area of justice may constitute an infringement of a rule of law considered to be fundamental in the EU legal order and, therefore, in the Swedish legal order.
56. The Commission further submits that account must also be taken of the fact that P had the option of appealing against the judgment at issue in the Member State of origin and that it should have taken up that option. In its view, this approach is consistent with the general principle of Regulation No 2201/2003 to the effect that any erroneous application of the rules must be challenged before the courts of the Member State of origin. Finally, the Commission points out that it must be ascertained whether it is in the child’s best interests to invoke the public policy clause in order to refuse to recognise a decision.
57. According to the Commission, it is for the referring court to determine whether, in the present case, the infringement of EU law constitutes an error which could easily have been rectified by way of the remedies available in the Member State of origin (in conjunction with the remedies provided for in Regulation No 2201/2003) or whether there has been a manifest and improper infringement of the rules of that regulation such as to constitute an infringement of the principles of mutual trust and sincere cooperation enshrined in EU law.
B – Preliminary observations
58. By its question, the referring court asks in essence whether, notwithstanding the prohibition laid down in Article 24 of Regulation No 2201/2003 against reviewing the jurisdiction of the Member State of origin, it may, in accordance with Article 23(a) of that regulation, refuse to recognise the judgment at issue ordering that S should live with her mother. (11)
59. It should be noted, first of all, that the reference made in the question referred to Article 24 of Regulation No 2201/2003 seems to suggest that the national court’s uncertainty relates only to whether the judgment at issue may be refused recognition because the Šilutės rajono apylinkės teismas (District Court, Šilutė) failed to comply with the rules conferring jurisdiction.
60. Next, although the question referred concerns Article 23(a) of Regulation No 2201/2003, which provides for a ground of non-recognition of a judgment relating to parental responsibility where recognition is manifestly contrary to public policy, the referring court has given no indication of how recognition of the judgment at issue would be at variance to an unacceptable degree with the public policy of the Member State in which recognition is sought or of the European Union.
61. Indeed, it is only the arguments advanced by P before that court, reproduced in the request for a preliminary ruling, (12) that give any indication of the alleged infringement of public policy. In this regard, P submitted before the referring court that recognition of the judgment at issue was manifestly contrary to public policy because the Šilutės rajono apylinkės teismas (District Court, Šilutė) had committed a serious error inasmuch as, whether deliberately or unwittingly, it had infringed, first, Article 15 of Regulation No 2201/2003 and, secondly, the return procedure laid down in that regulation, in particular the fundamental principle that, in cases of child abduction, the final decision lies with the courts of the child’s original country of residence, in accordance with Article 11(8) of that regulation. (13)
62. In the present View, I shall deal with each of those two issues in turn.
C – Alleged infringement of the rules on jurisdiction laid down in Regulation No 2201/2003 and the public policy exception provided for in Article 23(a) of that regulation
63. P claims that the judgment at issue does not clearly indicate the factors on the basis of which the Šilutės rajono apylinkės teismas (District Court, Šilutė) assumes jurisdiction. He also takes the view that the judgment at issue might be regarded as provisional for the purposes of Article 20 of Regulation No 2201/2003 and, in accordance with the judgment in Purrucker (C‑256/09, EU:C:2010:437), is not therefore effective outside Lithuanian territory.
64. The Court held in paragraphs 76 to 78 of the judgment in Purrucker (C‑256/09, EU:C:2010:437) that any judgment in which it is not clear that it has been adopted in accordance with the rules on jurisdiction laid down in Regulation No 2201/2003 falls within the scope of Article 20 of that regulation where it satisfies the conditions laid down in that provision. In this regard, the Court stated in paragraph 83 of that judgment that the system of recognition and enforcement provided for by Regulation No 2201/2003 is not applicable to measures which fall within the scope of Article 20 of that regulation.
65. It is my view that that case-law is not applicable to the circumstances at issue in the main proceedings.
66. After all, contrary to the observations submitted by P, (14) it is clear from the judgment at issue that the Šilutės rajono apylinkės teismas (District Court, Šilutė) based its jurisdiction on the rules on jurisdiction laid down in Regulation No 2201/2003. In this regard, the judgment at issue mentions not only Article 15 (15) of Regulation No 2201/2003 but also (16) Articles 8 and 9 thereof. (17)
67. Consequently, given that the judgment at issue contains sufficient evidence to show that the Šilutės rajono apylinkės teismas (District Court, Šilutė) based its jurisdiction on rules laid down in Regulation No 2201/2003, that judgment is not provisional within the meaning of Article 20 of that regulation and must (18) be recognised by the referring court in accordance with the principle of the mutual recognition (19) of judgments enshrined in Article 21(1) of that regulation, unless one of the grounds of non-recognition of judgments relating to parental responsibility provided for in Article 23 of the regulation is applicable. (20)
68. In the light of the objectives of Regulation No 2201/2003 which I have just reiterated and of the actual wording of Article 23(a) of that regulation, which provides that a judgment is not to be recognised if such recognition is ‘manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child’, I take the view that recourse to the public policy clause in Article 23(a) of that regulation is to be had only in exceptional cases. (21) After all, as that ground derogates from the principle of the recognition of judicial decisions on the basis of mutual trust and may thus constitute an obstacle to the attainment of one of the fundamental objectives of Regulation No 2201/2003, (22) it must be interpreted restrictively. (23)
69. It should be added that, along with the very limited scope of the exception provided for in Article 23(a) of Regulation No 2201/2003, the first sentence of Article 24 of the regulation also confirms that the courts of the other Member States cannot review the first court’s assessment of its jurisdiction. That fundamental principle (24) is also reinforced by the clarification contained in the second sentence of the same provision to the effect that ‘the test of public policy referred to in Article ... 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14’.
70. The fact that Article 24 of Regulation No 2201/2003 does not refer to Article 15 of that regulation cannot have the effect of reducing the scope of the fundamental principle, enshrined in Article 24, that the public policy of the State in which recognition is sought cannot be raised as a bar to the recognition or enforcement of a judgment given in another Member State solely on the ground that the court of the Member State of origin failed to comply with the rules of jurisdiction. (25)
71. I would submit in this regard that that fundamental principle based on mutual trust which ensures the free movement of judgments within the European Union cannot be called into question according to the seriousness of the alleged failure comply with the rules of jurisdiction.
72. It follows that, even if it were apparent that the Šilutės rajono apylinkės teismas (District Court, Šilutė) did not comply with the rules of jurisdiction laid down in Regulation No 2201/2003 or with the wording of Article 15 of that regulation, as P and the Commission claim (26) (quod non, in my opinion), such a finding could not trigger or permit the non-recognition of the judgment at issue by the referring court.
73. Furthermore, Article 26 of Regulation No 2201/2003 provides that under no circumstances may a judgment be reviewed as to its substance. (27) It follows that the court of the State in which recognition is sought may not, without challenging the aim of Regulation No 44/2001, refuse recognition of a judgment emanating from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment. (28)
74. On the contrary, it must be considered that, in such cases, the system of legal remedies established in each Contracting State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals. (29)
75. At the hearing of 27 October 2015, it was confirmed by the Republic of Lithuania that the judgment at issue was open to appeal and, if appropriate, to appeal on a point of law. For his part, P confirmed at that same hearing that he had not lodged an appeal against the judgment at issue before the Lithuanian courts. P did not therefore pursue the remedies available to him under Lithuanian law despite his active participation in several sets of proceedings concerning parental responsibility and the return of his children (30) which had been brought before the Lithuanian courts. He did not therefore avail himself of the opportunity to contest the jurisdiction of the Šilutės rajono apylinkės teismas (District Court, Šilutė) to adopt the judgment at issue.
76. In the light of the foregoing, I take the view that, pursuant to Articles 23(a) and 24 of Regulation No 2201/2003, the public policy of the State in which recognition is sought cannot be raised as a bar to the recognition or enforcement of a judgment given in another Member State solely on the ground that the Member State of origin has failed to comply with the rules on jurisdiction contained in Regulation No 2201/2003.
77. I would further submit that, even if the public policy of the Member State in which recognition is sought could be so raised pursuant to Article 23(a) of Regulation No 2201/2003, no argument, with the exception of the fruitless argument based on the alleged infringement of the rules of jurisdiction laid down in that regulation, which I have just rejected, has been put forward to demonstrate how that public policy has been infringed.
D – Article 11 of Regulation No 2201/2003 and the return proceedings
78. It is clear from the request for a preliminary ruling and from the wording of the question raised by the referring court that the subject-matter of the dispute (31) is exclusively concerned with child custody as defined in Article 2(9) of Regulation No 2201/2003.
79. P, (32) the Kingdom of Sweden and the Republic of Lithuania, in reply to a written question put by the Court, have also stated that the object of the dispute in the main proceedings is the same as that of the dispute before the Šilutės rajono apylinkės teismas (District Court, Šilutė) that gave rise to the judgment at issue. Q also confirmed that position at the hearing of 27 October 2015. (33)
80. I would point out, however, that the Kingdom of Sweden stated in its written observations that, ‘since, on 21 October 2014, the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) dismissed the application for the children’s return, documents were transmitted to the Varbergs tingsrätt (District Court, Varberg), in accordance with Article 11(6) of Regulation [No 2201/2003], via the Swedish central authority, that is to say, the Ministry of Foreign Affairs. P requested that his application be included in the pending case relating to rights of custody. Article 11(8) of Regulation [No 2201/2003] provides that, notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under [that] Regulation is to be enforceable in order to secure the return of the child.’
81. I am therefore of the opinion that it cannot be determined with certainty whether the referring court is actually seised of an application for return under Article 11(8) of Regulation No 2201/2003.
82. I would further submit that, although P has indeed spoken of the child’s wrongful abduction, (34) it is clear from page 4 of the judgment at issue that the Šilutės rajono apylinkės teismas (District Court, Šilutė) was of the view that the removal in question to Lithuania was lawful. Moreover, according to the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal), the Vilniaus apygardos teismas (Regional Court, Vilnius) ‘stated that, at the time of S’s removal, [P] was prohibited from approaching [Q] and their daughters and from seeking to contact them, as their identity and place of residence had been kept secret, which fact amounts in essence to a limitation of his custody rights. In the light of that information, the Vilniaus apygardos teismas (Regional Court, Vilnius) held that there was no basis to support the finding that [S’s] removal was wrongful within the meaning of the 1980 Hague Convention and Regulation (EC) No 2201/2003’. If S’s removal and, if that is the case, retention in Lithuania are lawful, paragraph 44 of the judgment in Povse (C‑211/10 PPU, EU:C:2010:400) is not applicable. (35)
83. The documents before the Court also show that, following the order of 4 September 2014 of the Vilniaus apygardos teismas (Regional Court, Vilnius) dismissing P’s application for the return of a child, upheld by order of the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) on 21 October 2014, (36) and notwithstanding the transmission of a copy of those judgments of non-return to the referring court on 28 November 2014, in accordance with Article 11(6) of Regulation No 2201/2003, no further judgment ordering the child’s return was adopted under Article 11(8) of Regulation No 2201/2003. (37) Indeed, the Kingdom of Sweden stated in its written observations that ‘[t]he matter remain[ed] open so far as the Swedish central authority was concerned’.
84. It should be noted in this regard that an action concerning the substance of parental responsibility has neither the same object nor the same cause as an action seeking the return, to the Member State of origin, of the child who has been wrongfully removed or retained in another Member State. (38)
85. The Court has held that, although intrinsically connected with other matters governed by Regulation No 2201/2003, in particular rights of custody, the enforceability of a judgment under Article 11(8) of Regulation No 2201/2003 requiring the return of a child following a judgment of non-return under Article 11(6) of Regulation No 2201/2003 has procedural autonomy, so as not to delay the return of a child who has been wrongfully removed . (39)
86. In the light of the foregoing considerations, the wording of the question referred, the different objectives pursued by judgments on the custody of children and those on their return and the total lack of information in the documents before the Court on whether any Swedish court has adopted a judgment ordering return under Article 11(8) of Regulation No 2201/2003 (40) (despite the fact that months have passed since the judgment of non-return issued by the Lietuvos apeliacinis teismas (Lithuanian Court of Appeal) on 21 October 2014 (41)), it is my view that P’s observations on the proceedings for return are not relevant to the answer to be given to the referring court’s question.
VI – Conclusion
87. In the light of the foregoing considerations, I propose that the Court reply as follows to the question referred by the Varbergs tingsrätt (District Court, Varberg):
Articles 23(a) and 24 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 the public policy of the State in which recognition is sought cannot be raised as a bar to the recognition or enforcement of a judgment given in another Member State solely on the ground that the Member State of origin failed to comply with the rules on jurisdiction contained in Regulation No 2201/2003.