Judges CG Fernlund (Rapporteur), J-C Bonichot, A Arabadjiev, S Rodin
Advocate General M Szpunar
The claimant, Ms Neli Valcheva, residing in Bulgaria, was the grandmother of a child, from the marriage of the claimant’s daughter, and the defendant, Mr Georgios Babanarakis, residing in Greece. That marriage was dissolved by a Greek court, which awarded custody of the child to his father. That court determined the arrangements for the exercise by the mother of her rights of access to the child, including contact by internet and telephone as well as personal meetings in Greece for a few hours once a month. After having argued that she was unable to maintain quality contact with her grandson and that she had unsuccessfully sought the support of the Greek authorities, the claimant applied to a Bulgarian court of first instance for a determination of arrangements for her to exercise rights of access to her minor grandson. She requested that she be allowed to see him regularly on certain weekends of each month and that he stay at her home for one or two weeks during his holidays, twice a year. That court of first instance took the view that it did not have jurisdiction to examine the application. The appeal court upheld that decision, on the basis that Council Regulation (EC) No 2201/2003 applied to cases concerning rights of access to a child by a wide family circle including the child’s grandparents and that, according to article 8 of the Regulation, jurisdiction to examine the application lay with the courts of the member state in which the child was habitually resident at the time when the court was seised, namely the Greek courts. The Regulation applied, by virtue of article 1(1)(b), whatever the nature of the court or tribunal, in civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility. Under article 1(2)(a), those matters could deal with rights of custody and access. Article 2(7) of the Regulation defined “parental responsibility” as all rights and duties relating to the person or the property of a child which were given to a person by judgment, by operation of law or by an agreement having legal effect and included rights of custody and access; and article 2(1) defined “rights of access” as including in particular the right to take a child to a place other than his or her habitual residence for a limited period of time. On the claimant’s appeal, the Supreme Court of Cassation, Bulgaria, decided that it was necessary for it to ascertain whether the Regulation applied to the rights of access of grandparents and, accordingly, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling a question on the interpretation of articles 1(2)(a) and 2(7) and 2(10) of the Regulation.
On the reference—
Held, the concept of rights of access referred to in articles 1(2)(a) and 2(7) and 2(10) of Council Regulation (EC) No 2201/2003 referred not only to the rights of access of parents to their child, but also to the rights of access of other persons with whom it was important for the child to maintain a personal relationship, among others, that child’s grandparents, whether or not they were holders of parental responsibility. It followed that an application made by grandparents to be granted rights of access to their grandchildren was covered by article 1(1)(b) of the Regulation and therefore came within the scope of that Regulation. If rights of access did not concern all of those persons, questions relating to those rights could be determined not only by the court designated in accordance with Regulation No 2201/2003 but also by other courts which might consider themselves to have jurisdiction on the basis of private international law. There would be a risk that conflicting or even irreconcilable decisions might be adopted, as the rights of access granted to a relative of the child could adversely affect the rights of access granted to a holder of parental responsibility. The granting of rights of access to a person other than the parents could interfere with the rights and duties of those parents, namely, in the present case, the father’s rights of custody and the mother’s rights of access. Consequently, it was important, in order to avoid the adoption of conflicting measures and in the best interests of the child, that the same court—as a rule, the court of the child’s habitual residence—should rule on rights of access. Accordingly, the concept of “rights of access” referred to in articles 1(2)(a) and in 2(7) and 2(10) of Regulation No 2201/2003 included rights of access of grandparents to their grandchildren (judgment, paras 33–37, operative part).
M Smolek, J Vláčil and A Kasalická, agents, for the Czech Government.
YG Marinova and M Wilderspin, agents, for the European Commission.