Neli Valcheva v Georgios Babanarakis.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2018:242
• Celex Number: 62017CC0335
• Court: Court of Justice (European Union)
• Docket Number: C-335/17
• Procedure Type: Reference for a preliminary ruling
• Date: 12 April 2018

Jurisdiction – Children arrangements – Rights of access – Grandmother – Living in different country to child – Whether Brussels IIa applied to her application – Reference for preliminary ruling – Whether regulation applied to access applications by non-parents generally.

The maternal grandmother, a Bulgarian national, wanted access to the child, who lived with the father in Greece (the father had been granted custody of the child and the mother had only limited rights of access). The grandmother applied to the Bulgarian district court, requesting that she be allowed to see the child one weekend each month and that he stay at her home for two or three weeks during his holidays, twice a year. The Bulgarian district court ruled that it did not have jurisdiction; the grandmother appealed.

Brussels IIa (Regulation (EC) No 2201/2003) provided that it was to apply in matters relating to ‘parental responsibility’, defined as ‘all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect’. These included rights of access, which were expressly referred to in art 1(2)(a) and art 2(10); however, those provisions did not specifically state whether they governed the rights of access of persons other than parents.

Eventually the Bulgarian Supreme Court of Cassation referred to the ECJ a request for a preliminary ruling on the question whether a grandmother’s wish to exercise rights of access to the child fell within the scope of Brussels IIa.

No hearing was requested by the parties, so judgment was given without a hearing.

Held – (1) It was necessary, for the purpose of interpreting the relevant provisions of Brussels IIa to take into account not only their wording, but also the objectives of Brussels IIa and its historical and general context (see [39]–[41], below).

(2) It was apparent from the wording and the scheme of Brussels IIa that the intention of the EU legislature had been to cover the largest number of arrangements allowing a child to maintain contact not only with parents but also with other family members or persons close to the child. Nothing in the definitions or in their context prevented, in principle, a grandmother from relying on the rules of jurisdiction in BIIa for the purpose of applying for rights of access (see [49], below).

(3) An interpretation of Brussels IIa that applied the regulation to an application for rights of access by a grandparent did not run counter to the regulation’s objectives. A teleological interpretation of Brussels IIa must be carried out in the light of the primacy of the best interests of the child, as a guiding principle enshrined both in its recitals and its provisions. One of the objectives of Brussels IIa was to promote mutual recognition of judicial decisions. To ensure equality for all children, BIIa adopted a broad concept of holders of parental responsibility, encompassing not only any natural person exercising parental responsibility but also third persons or legal persons, such as child protection authorities. It was generally clear from the objectives of Brussels IIa that there was no justification for rights of access to be excluded from its scope, where the applicant seeking rights of access was a person other than the parents, who had family ties to the child based on law or on fact. The granting of rights of access to a person other than the parents could interfere with the rights and duties of those parents (here, the father’s rights of custody and the mother’s rights of access); it was therefore necessary, in order to avoid conflicting measures and in the best interests of the child, for the same court, the court of the child’s habitual residence, to rule on rights of access. If applications for rights of access by persons other than parents were to be excluded from the scope of BIIa, jurisdiction in such cases would be determined by non-harmonised national rules. The risk that a child might be involved in a dispute before a court with which that child had no close link and the likelihood of parallel proceedings and irreconcilable decisions would increase, contrary to the purpose of Brussels IIa, which aimed to lay down uniform rules of jurisdiction in accordance with the principle of proximity in judicial proceedings (see [52]–[54], [56]–[58], below).

(4) Brussels IIa had been created in the context of other international instruments concerning contact with children including the UN Convention on the Rights of the Child, arts 2(d) and 5(1) of the Convention on Contact concerning Children, art 8 of the European Convention on Human Rights. The international instruments adopted a broad concept of rights of access, in some cases explicitly including grandparents. Brussels IIa had also been drafted in the context of extending the scope of Regulation No 1347/2000, which was limited to disputes concerning parents (see [72]–[74], below).

(5) The textual, teleological, systematic and historical analysis of the provisions of Brussels IIa supported the view that the rule of jurisdiction in art 8 of BIIa also applied to an application for the exercise of rights of access by persons other than parents, including other de jure or de facto family members. Brussels IIa not only extended to a request concerning rights of access by grandparents; it did not exclude from the concept of rights of access of persons who were not parents but who had family ties to the child, based on law or on fact (including siblings or the former spouse or former partner of a parent). Given the constant changes in society and the existence of new forms of family structures, the possibilities were numerous. The case of the former partner of the parent with parental responsibility and, consequently, the parents of the former partner – regarded by the child as grandparents – or the case of an aunt or uncle responsible, in the temporary absence of one or both parents, for caring for the child, were but a few examples of cases in which the ECJ might be requested to interpret that regulation (see [75]–[78], below).

(6) Brussels IIa concerned only rules of jurisdiction, recognition and enforcement of judgments in matters of, inter alia, parental responsibility. Therefore, at this stage in the development of EU law, the issue of the persons to whom rights of access would, or would not, be granted was a matter of national law. That was why it was particularly important to have a single and uniform rule of jurisdiction, that is to say the jurisdiction of the authorities of the member state of the child’s habitual residence, in order to ensure the recognition and enforcement of judgments given in the various member states (see [79], below).

Statutory provisions referred to

Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.

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, recital 2, recital 4, recital 5, recital 12, recital 13, recital 19, recital 21, recital 23, recital 33, art 1, art 1(2)(a), art 2(1), art 2(7), art 2(8), art 2(9), art 2(10), art 8, art 8(2), art 15, art 41(2)(c), art 42(2)(a).

Convention of 28 May 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters.

Convention of 15 May 2003 on Contact concerning Children, art 5(1), art 2(d).

Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, art 1(2), art 3, art 3(a), art 3(b), art 61.

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.

Charter of Fundamental Rights of the European Union, art 7, art 24, art 24(1), art 24(2), art 24(3).

Treaty on European Union, art 3(3), art K.3.

Rules of Procedure of the Court of Justice, art 53(3).

UN Convention on the Rights of the Child, art 3(1), art 3(5).

Bulgarian Family Code, art 128.

Bulgarian Law on persons and the family, art 4.

Cases referred to

Proceedings brought by A (C‑523/07) EU:C:2009:225, [2010] Fam. 42, [2010] 2 WLR 527, [2009] ECR I-2805, [2009] ILPr 39, [2009] 2 FLR 1.

Chavez-Vilchez and Ors (C‑133/15) EU:C:2016:659, [2017] 3 WLR 1326, [2017] WLR(D) 324, [2017] EUECJ C-133/15, [2018] QB 103.

Manuello and Nevi v Italy (Application No 107/10) (20 January 2015, unreported), ECtHR.

Marckx v Belgium (Application No 6833/74) [1979] ECHR 2, (1979) 2 EHRR 330, (1980) 2 EHRR 330, 2 EHRR 330, [1979] 2 EHRR 330.

McB (Area of Freedom, Security and Justice) (C‑400/10) PPU, EU:C:2010:582, [2011] 2 FCR 382, [2011] Fam Law 8, [2011] 1 FLR 518, [2011] All ER (EC) 379, [2011] Fam 364, [2011] 3 WLR 699, [2010] ECR I-8965.

Parliament v Council (C‑540/03) EU:C:2006:429, [2006] 3 CMLR 28, [2006] 2 FCR 461, [2006] EUECJ C-540/03, [2006] ECR I-5769, [2007] All ER (EC) 193.

Rendón Marín (C‑165/14) EU:C:2016:675, [2017] Imm AR 205, [2017] 1 CMLR 29, [2017] 2 WLR 117, [2016] EUECJ C-165/14, [2017] CEC 527, [2017] QB 495, [2017] INLR 338, [2016] WLR(D) 481.

Rinau (C‑195/08 PPU) EU:C:2008:406, [2009] 2 WLR 972, [2009] Fam 51, [2008] 2 FLR 1495, [2008] All ER (EC) 1145, [2008] ILPr 51, [2008] Fam Law 1080, [2008] 3 FCR 370, [2008] EUECJ C-195/08.

Scozzari and Giunta v Italy (Application Nos 39221/98 and 41963/98) [2000] 3 FCR 430, (2002) 35 EHRR 12, [2000] Fam Law 801, [2000] ECHR 372, [2000] 2 FLR 771.

Request for a preliminary ruling

By judgment of 29 May 2017, received at the Court Registry on 6 June 2017, the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), referred the following question to the Court of Justice for a preliminary ruling: ‘Is the concept...