View of the Advocate General — ECLI:EU:C:2010:749
Date: 2010-12-07
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Urgent preliminary ruling procedure – Conditions – Examination by the Court of its own motion (Rules of Procedure of the Court of Justice, Art. 104 b, first para.) 2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Certified judgment handed down in the Member State of origin and ordering the return of a child wrongfully retained (Charter of Fundamental Rights of the European Union, Art. 24; Council Regulation No 2201/2003, Art. 42(2)(a)) 3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Certified judgment handed down in the Member State of origin and ordering the return of a child wrongfully retained (Charter of Fundamental Rights of the European Union, Art. 24; Council Regulation No 2201/2003, Art. 42) 1. The Court recognises the urgency of ruling in cases of child removal, in particular where the separation of a child from the parent to whom custody had previously been awarded, even if only provisionally, would be likely to bring about a deterioration of their relationship, or harm that relationship, and to cause psychological damage. Accordingly, where a child has been separated from her father for more than two years and, given the distance between the child’s parents and their strained relationship, there is a real and serious risk that the child and her father will have absolutely no contact for the duration of the proceedings pending before the referring court, the Court may decide that the reference for a preliminary ruling should be dealt with under the urgent procedure, since the use of the ordinary procedure to deal with the reference for a preliminary ruling might cause serious, and perhaps irreparable, harm to the relationship of the parent and child and also further jeopardise her integration into the parent’s family and social environment in the event of any return to the place where the child resided before the abduction. (see paras 39-41) 2. As provided for in Article 24 of the Charter of Fundamental Rights of the European Union and Article 42(2)(a) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, it is not a necessary consequence of the right of the child to be heard that a hearing before the court of the Member State of origin take place, but that right does require there to be made available to that child the legal procedures and conditions that enable the child to express his or her views freely and those views to be obtained by the court. In other words, whilst it is not a requirement of Article 24 of the Charter of Fundamental Rights and Article 42(2)(a) of Regulation No 2201/2003 that the court of the Member State of origin obtain the views of the child in every case by means of a hearing, that court thus retaining a degree of discretion, the fact remains that, when that court decides to hear the child, those provisions require the court to take all measures appropriate to the arrangement of such a hearing, having regard to the child’s best interests and the circumstances of each individual case, in order to ensure the effectiveness of those provisions, and to offer to the child a genuine and effective opportunity of expressing his or her views. With the same aim, the court of the Member State of origin must, in so far as possible and always taking into consideration the child’s best interests, use all means available to it under national law and also the specific instruments of international judicial cooperation, including, when appropriate, those provided for by Regulation No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. (see paras 65-67) 3. When a judgment ordering the return of a child who is wrongfully retained is handed down without that child’s having been heard, the court with jurisdiction in the Member State of enforcement cannot oppose the enforcement of a certified judgment in such terms on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, interpreted in accordance with Article 24 of the Charter of Fundamental Rights of the European Union, since the assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin. The systems for recognition and enforcement of judgments handed down in a Member State that are established by Regulation No 2201/2003 are based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights. It is therefore within the legal system of the Member State of origin that the parties concerned must pursue legal remedies that allow the lawfulness of a judgment certified pursuant to Article 42 of Regulation No 2201/2003 to be challenged. (see paras 70-71, 75, operative part)