Case law Brussels II Regulation (2201/2003)

Article 2 of the Brussels II Regulation

ECJ 5 October 2010 ‘J. McB. v L.E.’ (Case C-400/10 PPU)

The Brussels II Regulation is not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that Regulation. Article 2(9) BR II defines ‘rights of custody’ as covering ‘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’. Since ‘rights of custody’ is thus defined by the Brussels II Regulation it is an autonomous concept which is independent of the law of Member States. It follows from the need for uniform application of European Union law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Union, having regard to the context of the provision and the objective pursued by the legislation in question (C-66/08 Kozlowski [2008] ECR I-6041, paragraph 42 and case-law cited). Accordingly, for the purposes of applying the Brussels II Regulation, rights of custody include, in any event, the right of the person with such rights to determine the child’s place of residence. An entirely separate matter, however, is the identity of the person who has rights of custody. In that regard, it is apparent from Article 2(11)(a) of the Brussels II Regulation that whether or not a child’s removal is wrongful depends on the existence of ‘rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention’. It follows that the Brussels II Regulation does not determine which person must have such rights of custody as may render a child’s removal wrongful within the meaning of Article 2(11), but refers to the law of the Member State where the child was habitually resident immediately before its removal or retention the question of who has such rights of custody. Accordingly, it is the law of that Member State which determines the conditions under which the natural father acquires rights of custody in respect of his child, within the meaning of Article 2(9) of that regulation, and which may provide that his acquisition of such rights is dependent on his obtaining a judgment from the national court with jurisdiction awarding such rights to him. The result is that the Brussels II Regulation must be interpreted as meaning that whether a child’s removal is wrongful for the purposes of applying that regulation is entirely dependent on the existence of rights of custody, conferred by the relevant national law, in breach of which that removal has taken place.