Case C‑215/15

Vasilka Ivanova Gogova

v

Ilia Dimitrov Iliev

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

‛Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Scope — Article 1(1)(b) — Attribution, exercise, delegation, restriction or termination of parental responsibility — Article 2 — Concept of parental responsibility — Dispute between parents on travel by their child and the issue of a passport to the child — Prorogation of jurisdiction — Article 12 — Conditions — Acceptance of the jurisdiction of the courts seised — Non-appearance of the defendant — Jurisdiction not contested by the defendant’s legal representative appointed by the courts seised of their own motion’

Summary — Judgment of the Court (Fourth Chamber), 21 October 2015

1. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility — Regulation No 2201/2003 — Scope — Meaning of civil matters — Parent seeking a remedy for the lack of agreement of the other parent to their child undertaking a journey and a passport being issued in the child’s name — Included

   (Council Regulation No 2201/2003, Arts 1(1)(b), and 2(7))

2. 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 — Prorogation of jurisdiction — Jurisdiction accepted expressly or in an unequivocal manner by the parties — Scope — Jurisdiction not contested by a representative ad litem appointed by the court and acting for the defendant — Not included

   (Council Regulation No 2201/2003, Art. 12(3)(b))

1.  An action in which one parent asks the court to remedy the lack of agreement of the other parent to their child travelling outside his Member State of residence and a passport being issued in the child’s name is within the material scope of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, even though the decision in that action will have to be taken into account by the authorities of the Member State of which the child is a national in the administrative procedure for the issue of that passport.

   Regulation No 2201/2003 applies in civil matters relating inter alia to the attribution, exercise, delegation, restriction or termination of parental responsibility. 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.

   Where an action requires the national court to rule on the child’s need to obtain a passport and the applicant parent’s right to apply for that passport and travel abroad with the child without the agreement of the other parent, the object of that action is the exercise of ‘parental responsibility’ for that child within the meaning of Article 1(1)(b) in conjunction with Article 2(7) of Regulation No 2201/2003.

   (see paras 26, 27, 29, 35, operative part 1)

2.  Article 12(3)(b) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility must be interpreted as meaning that the jurisdiction of the courts seised of an application in matters of parental responsibility may not be regarded as having been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ within the meaning of that provision solely because the legal representative of the defendant, appointed by those courts of their own motion in view of the impossibility of serving the document instituting proceedings on the defendant, has not pleaded the lack of jurisdiction of those courts.

   First, such acceptance presupposes at the very least that the defendant is aware of the proceedings taking place before those courts. While that awareness is not in itself acceptance of the jurisdiction of the courts seised, an absent defendant on whom the document instituting proceedings has not been served and who is unaware of the proceedings that have been commenced cannot in any event be regarded as accepting that jurisdiction.

   Secondly, the wishes of the defendant in the main proceedings cannot be deduced from the conduct of a legal representative appointed by those courts in the absence of the defendant. Since that representative has no contact with the defendant, he cannot obtain from him the information necessary to accept, or contest to, the jurisdiction of those courts in full knowledge of the facts.

   (see paras 42, 43, 47, operative part 2)