Information;Order — ECLI:EU:C:2022:393
Date: 2022-05-16
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-724/21 – 1 
Case C-724/21 
Request for a preliminary ruling 
Date lodged: 
30 November 2021 
Referring court: 
Landgericht Köln (Germany) 
Date of the decision to refer: 
24 November 2021 
Defendant: 
RV 
  
Landgericht Köln (Regional Court, Cologne) 
Order 
In the criminal proceedings 
against RV, 
[…] 
the Fourth Ordinary Criminal Chamber of the Regional Court, Cologne 
[…] 
made the following order: 
In accordance with Article 267(a) TFEU, the following question is referred to the 
Court of Justice of the European Union (‘the Court’) for a preliminary ruling: 
Must Article 21 TFEU be interpreted as precluding the application of a Member 
State’s legislation under which the removal by a parent of a child from his or her 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 11. 2021 – CASE C-724/21 
 
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appointed carer in order to take him or her abroad attracts criminal penalties even 
in the absence of force, threat of serious harm or deception, whereas where such 
removal takes place in the territory of the first Member State, the same act is 
punishable only if recourse is had to force, threat of serious harm or deception? 
The proceedings are stayed pending the preliminary ruling of the Court. 
Grounds 
I. 
The defendant RV, a Romanian national, is the mother of two minors born in 
Romania […]. At a time that cannot be established with any degree of precision, 
the defendant moved to Germany with her two daughters. By order of 
28 September 2018, the Amtsgericht Köln (Local Court, Cologne) withdrew the 
defendant’s right, inter alia, to determine the two children’s residence and 
entrusted that right to a carer under a partial delegation of parental authority 
known as ‘guardianship for additional protection’ (Ergänzungspflegschaft), 
whereby the children subsequently continued to live in their mother’s home in 
Cologne. In the period between 7 and 15 October 2020, the defendant took her 
daughters to Romania without the carer having been informed of this or having 
given her consent to it. While [one daughter] returned to Germany together with 
her mother on 11 April 2021, [the other daughter] remained in Romania. 
The carer filed a criminal complaint against the defendant, as a result of which 
criminal proceedings were brought before the Local Court, Cologne for the 
offence of child abduction. By judgment of 19 April 2021, the Local Court, 
Cologne sentenced the defendant to a term of imprisonment of one year for the 
offence of child abduction in accordance with point 1 of Paragraph 235(2) of the 
Strafgesetzbuch (German Criminal Code; ‘the StGB’), the enforcement of which 
was suspended. After the defendant filed an appeal against that judgment by 
written submission lodged by her defence counsel on 20 April 2021, the 
proceedings have now been pending before the present Ordinary Criminal 
Chamber of the Regional Court, Cologne since 21 May 2021. 
Paragraph 235 of the StGB provides: 
‘(1) A term of imprisonment not exceeding five years or a fine shall be imposed 
on a person who removes or retains 
1. 
a person under 18 years of age by force, threat of serious harm or deception, or 
2. 
a child, who is not a relative, 
STAATSANWALTSCHAFT KÖLN 
 
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from one or both of his or her parents or his or her guardian or carer. 
(2) The same penalty shall be imposed on a person who 
1. 
removes a child in order to take him or her abroad, or 
2. 
having brought him or her there or the child having gone there, retains a child 
from one or both of his or her parents or his or her guardian or carer. 
…’ 
II. 
The referring court has doubts as to the compatibility of the provision of point 1 of 
Paragraph 235(2) of the StGB with EU law. Those doubts arise from a decision of 
the Court of 19 November 2020 (C-454/19) concerning the provision of point 2 of 
Paragraph 235(2) of the StGB. According to that decision, Article 21 TFEU must 
be interpreted as precluding a Member State’s legislation under which the 
retention by a parent of a child from his or her appointed carer in another Member 
State attracts criminal penalties even in the absence of force, threat of serious 
harm or deception, whereas where such retention takes place in the territory of the 
first Member State, the same act is punishable only if recourse is had to force, 
threat of serious harm or deception. 
In the reasoning for its decision, the Court stated that the provision of point 2 of 
Paragraph 235(2) of the StGB in fact affects primarily Union citizens who are 
nationals of other Member States and reside in Germany, since they are more 
likely than German nationals to remove or send their child to another Member 
State, chiefly their Member State of origin, and to retain him or her there, and this 
constitutes a difference in treatment that is likely to restrict the freedom of 
movement of Union citizens within the meaning of Article 21 TFEU, without that 
restriction being justified by the public interest – that is to say, the public interest 
in the protection of that child. 
It is true that that reasoning allows an interpretation of the abovementioned 
decision to the effect that, in accordance with that decision, not only is the 
provision of point 2 of Paragraph 235(2) of the StGB, which establishes as an 
offence the retention of a child taken abroad – where that child has travelled with 
the consent of the holder of the rights of custody – contrary to EU law, but, 
moreover, the provision of point 1 of Paragraph 235(2) of the StGB – which is at 
issue in the present case – which covers situations in which the mere act of taking 
the child abroad impairs the right to determine the child’s residence conferred on 
the holder of the rights of custody, appears to be extremely similar to the former 
provision. However, since the decision does not expressly address the provision of 
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point 1 of Paragraph 235(2) of the StGB, the referring court considers that it is 
prevented from disapplying the provision on the ground that it is incompatible 
with EU law, as established by the Court, which has exclusive jurisdiction in that 
regard. 
In the present case, clarification of the question is also relevant to the decision to 
be given, since it is solely on the basis of the provision of point 1 of 
Paragraph 235(2) of the StGB that the defendant would be convicted. 
Accordingly, this is not a case of ‘passive abduction’ resulting from the act of 
retaining the child, which is committed only abroad, but a case of ‘active 
abduction’, in which the mere act of taking [the two daughters] to Romania 
without the consent of the carer constitutes an offence punishable under national 
law. 
[…]