2015/11/11 - 30 Nd 201/2013 (summary)

Judgement of the Supreme Court dated 11 November 2015, file number 30 Nd 201/2013
(international jurisdiction in the cases of parental responsibility)

The judgement related to the case of a minor child residing in the Netherlands whose guardian made an agreement on heirs on behalf of the minor, and the agreement should have been approved by the court. The Supreme Court received an application for determination of a court having local jurisdiction that would decide of the approval. The Supreme Court faced the question whether international jurisdiction of the Czech courts was given in connection with the Council Directive No. 2201/2003 (Brussels II bis). It came to the conclusion that in this case it was neither acte clair nor acte éclair, and it asked the Court of Justice a preliminary question whether in the event that an agreement on heirs was made by a guardian on behalf of a minor child that needed to be approved by a court, represented a measure related to parental responsibility on the part of the court (being within the framework of the Directive) or in the sense of administration of the estate (that the Directive doesn’t apply to). The Court of Justice stated that approval of the agreement on heirs made by a guardian of the minor children on behalf of the children represented a measure related to parental responsibility. That’s why the Directive applied to the case. However, the Directive itself enables choice of the international jurisdiction in accordance with paragraph 3 of Art. 12 of the Directive.

Following the above-mentioned decision made by the Court of Justice the Supreme Court states that in accordance with Art. 8 of the Directive the court in the usual place of residence of the minor has international jurisdiction, which is a Dutch court in the given case. Considering the above-mentioned arguments the Supreme Court doesn’t grant the application on determination of the local jurisdiction of the court, because in the given moment the conditions for determination of local jurisdiction of the court are not met. However, the Supreme Court reminded of the fact that para. 3 of Art. 12 of the Directive enables choice of international jurisdiction of the court different from the minor’s usual place of residence. This is possible under condition that the child has established strong relations to the other member state, all of the parties agree with the change in international jurisdiction, and at the same time the court jurisdiction is in the child’s interests. If the preconditions for use of para. 3 of Art. 12 of the Brussels II bis Directive are fulfilled at the time of opening the procedure, the prorogated court will be a court having local jurisdiction at the same time.