Following last week's ECJ case report, nothing could be more boring than Povse. Purrucker is certainly more interesting and deals with a much debated issue on 2201/2003's interpretation--Article 20.
Article 20 protects children in dangerous situations by allowing courts without jurisdiction to issue provisional orders:
"1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate."
The ECJ had previously laid out the requirements for courts to issue these kinds of orders--see Detiček--, but a question had arisen--mostly among scholars--as to whether courts in other Member States must recognize these provisional orders, as per Article 21 which requires courts to recognize judgments without requiring any additional special procedures for recognition.
In Purrucker, this question arose from the facts. Thus, the ECJ took the opportunity to settle this question.
Bianca Purrucker went to live with Guillermo Pérez in Spain, where in May 2006 she gave birth to their twins prematurely. Soon, the parents split and Bianca wanted to go back to Germany. The son left the hospital in September 2006, whereas the daughter had to stay in the hospital until March 2007.
Before leaving Spain, Bianca signed a custody agreement with Guillermo. Bianca left with the son to Germany in February 2007, but left behind the daughter, who was still in the hospital.
Despite the signed agreement, Guillame began custody proceedings in Spain--which resulted in a provisional order asserting Spanish jurisdiction, granting him full custody of both children, a ne exeat order, and giving him possession of the children's passports.
Bianca filed for custody in Germany.
Then, Guillame filed suit in Germany to enforce the Spanish provisional measures. Both the court and the appellate court recognized the provisional Spanish orders. The Bundesgerichthof however referred the question to the ECJ.
The ECJ began by clarifying that Article 20 only involves orders by courts that do not have substantive jurisdiction over the custody dispute at issue.
Then the ECJ examined how to determine the Spanish court's basis for jurisdiction. The problem was you see, that the Spanish court did not clearly state its basis for jurisdiction in its order. Rather the court cited domestic and international agreements in addition to 2201/2003. The ECJ opinion reminded that EU law takes precedence over national and international laws in this case. Further, cases like these assume mutual trust between courts.
Nonetheless, when a court does not clearly state that it is making an Article 20 provisional order, other courts will necessarily have to make the call as to the jurisdictional bases for making the order. In that case, the court may question whether the order met the requirements under Article 20.
The ECJ helpfully reminds us that Article 20 orders must:
(1) involve urgent matters;
(2) pertain to persons or assets in the Member State; and
(3) be provisional
Thus, when determining the nature of a "jurisdictionally ambiguous" order, it falls under Article 20 only if it "falls within the scope of that provision solely where it satisfies the conditions laid down in Article 20." These provisional orders "prevail over an earlier judgment adopted by a court of another Member State which has substantive jurisdiction[,]" but "a judgment which does not fall within the scope of Article 20 of the regulation because it does not comply with the conditions laid down in that provision cannot take precedence over such an earlier judgment (see the situation referred to in Detiček, in particular paragraph 49)."
As relevant to this case, the ECJ decided that Article 20 orders to not enjoy the extra-territorial recognition and enforcement that other orders do under Article 21, because this was not 2201/2003's drafters' intent (and the ECJ cited 2201/2003 plus 1347/2000 and their related documents and reports, and the 1996 Hague Convention).
The ECJ also took a moment to remind courts that domestic procedural rules--like the relatively harsh Spanish rules against appealing provisional decisions--must be set aside if they do not comport with EU law, i.e., 2201/2003 for this case. See, e.g., Simmenthal, Factortame, and Leffler.
Most importantly, the ECJ definitively decided that Article 20 provisional orders do not enjoy immediate recognition in fellow Member State courts.
As with all ECJ decisions, this decision did not provide a final answer for Bianca and Guillame. This case in particular provided little foreshadowing of the ultimate outcome. Rather, the German courts below were left to determine whether this was in fact a valid Article 20 order. If so, it seems they have some leeway as to whether to enforce or recognize the order. If not, then the order must have (or not?) fallen under 2201/2003's measures for substantive jurisdiction--which would enjoy Article 21's protections!