On 19 November 2015 the European Court of Justice delivered a judgment in the case of P v. Q (C-455/15) concerning jurisdiction and recognition of a foreign judgment on parental responsibility.
P (father) and Q (mother) had two children together: V, born in 2000, and S, born in 2009. The couple divorced in 2003, and the court ordered that the child should live with the mother but both parents shared rights of custody. In 2005, the family left Lithuania and moved to Sweden where S was born. Both children speak Swedish and attended school in Sweden. In 2013, the father discovered that the mother and their two children had disappeared because, allegedly, the father had committed offences. P was not allowed to have contact with the children. Few months after, the mother and the children left for Lithuania.
Shortly after, the father made applications seeking the Ministry of Foreign Affairs and referring court which were dismissed and the dismissal was confirmed on appeal. In October 2014, the Swedish court made an interim order granting the father sole custody of S according on Article 8(1) of Regulation No 2201/2003 (The Regulation). However, in 2015, the Lithuanian district court ordered the children to reside with the mother and for the father to pay maintenance. The father submits that the judgment delivered by the Lithuanian Court must not be recognised according to Article 23(a) of this Regulation which allows non-recognition on the ground of public policy.
In accordance with Article 24 of the Regulation, P conceded that there was a general prohibition of reviewing the jurisdiction of the court of the Member State of origin. He argued that the provision does not refer to Article 15 of the Regulation on which the Lithuanian district court had based its jurisdiction. According to him, the Lithuanian Court deduced from the fact that another Lithuanian court had refused to order the child’s return on the basis of Article 13 of the 1980 Hague Convention that that child was still habitually resident in Lithuania.
The Swedish Court made a reference for preliminary ruling to the Court of Justice of the European Union (ECJ) asking whether the public policy rule laid down in Article 23(a) of the Regulation should be interpreted as meaning that provision allowed a court of a Member State which considered that it had jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which had ruled on the custody of that child.
The Opinion of Advocate General Melchior Wathelet:
Advocate General Melchior Wathelet states that Articles 23(a) and 24 of the Regulation should 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 [the] Regulation” (para. 87).
Referring to case Povse (C-211/10 PPU) the Advocate General states that Article 23(a) of the Regulation expressly and exhaustively contains the grounds for non-recognition of judgements relating to parental responsibility. He also states that when interpreting the article one can make an analogy with the case law on Article 34(1) of Regulation 44/2001. In the light of the decision in Diageo Brands (C-681/13), ordre public should be interpreted as a judgment that would constitute a “manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought”. The Advocate General also refers to the reasoning in Diageo Brands that goes beyond the wording of the article and expands the definition of ordre public to include not only what is considered to be a “manifest breach of a rule of law regarded as essential” in the legal order of the member state but in the EU legal order as well.
In this case the Advocate General claims that there has been no reference made to a breach of ordre public within the Swedish or the EU legal order. P claims that the Lithuanian court has breached Article 15 of the Regulation and that this breach is serious enough to justify a review of the court’s jurisdiction, since the prohibition in Article 24 only explicitly refers to Articles 3-14. The Advocate General though states that since Articles 15 is to be seen as a complement to Articles 8-14, a breach of that article cannot be seen as a ground for review according to Article 24, and is not a breach serious enough to be classified as ordre public.
The Advocate General here emphasises the principle of mutual trust upon which the free movement of judgments is based, stating that this cannot be limited due to an incorrect assessment of a court’s jurisdiction, no matter how serious that violation would be (para. 71).
On 19 November 2015, the ECJ agreed with the Advocate General and ruled that “Article 23(a) of [the] Regulation […] must be interpreted as meaning that, in the absence of a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order, that provision does not allow a court of that Member State which considers that it has jurisdiction to rule on the custody of a child, to refuse to recognise a judgment of a court of another Member State which has ruled on the custody of that child”.
In Cassis de Dijon (C-120/78), the Court of Justice first established the principle of mutual recognition as a general constitutional principle of the common market, and this principle was later integrated into other fields of law, such as family law. The prohibition on reviewing the assessment of the jurisdiction of a member state, and to try the circumstances of the case again, forces Member States in a way to accept wrongful interpretation and application due to loyalty to the principles of EU law (mutual recognition) in cases where the ordre public cannot be invoked. Instead, there is the possibility to use infringement procedures, a measure that is very rarely used between Member States.
In other words, it is not for the Member States to act as judges in regards to the interpretation and application of EU law made by other Member States. Although this is all very understandable, does it in some fields of law, for example this one, compromise the rights of the people of the Member States in favour of another state?
Khaleda Abdul Khalil, Linn Glännestrand, Samantha Guillet