De nuevo sobre la interpretación y alcance del artículo 15 del Reglamento Bruselas II bis(Una alternativa efímera a la STJ de 4 de octubre de 2018)

Resumo

News on the interpretation of the article 15 Brussels IIbis Regulation (An ephemeral alternative to the ECJ Judgement of 4 October 2018) Article 15 of Council Regulation (EC) No 2201/2003 (Brussels IIbis), provides, by way of exception, that the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child, stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State or request a court of another Member State to assume jurisdiction. This rule may operate upon application from a party, or of the court's own motion, or upon application from a court of another Member State with which the child has a particular connection. The European Court of Justice ruled that this article must be interpreted as not applying in circumstances in which both courts seised have jurisdiction as to the substance of the matter under Articles 12 and 8, respectively, of that Regulation. The comment points out some weakness in the ECJ reasoning and offers an alternative interpretation, warning that the current process of recasting of the aforementioned Regulation backs the ECJ's point of view, so that the authors' proposal can be seen as a sort of ephemeral performance