Bundesverfassungsgericht; 2022-08-01; 1 BvQ 50/22
Decision by national courts in the field of European Union law — ECLI:DE:BVerfG:2022:qs20220801.1bvq005022
Date: 2022-08-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0801(51)_ENG_SUMJURE
JURE summary
JURE summary
A person residing in Germany (hereinafter ‘the plaintiff’) applied for the enforcement of a Spanish return and surrender order to be suspended until the application for rectification is decided by the Spanish courts.
The plaintiff is the mother of a son born in Madrid, whose father lives in Spain (hereinafter ‘the defendant’). After separating from the defendant in March 2014, she travelled to Germany with her son, who was under the age of one, without the defendant's consent. The defendant had no information regarding the whereabouts of the plaintiff and the son.
In September 2021, following several decisions by both the German and Spanish courts on their lack of jurisdiction to rule on the matter of custody of the son, the Spanish court ordered, in accordance with the defendant's request, that the son be returned to Spain and surrendered to the defendant (hereinafter ‘the Spanish judgement’). The Amtsgericht Bamberg (hereinafter ‘the Court of First Instance’), which was petitioned by the defendant to enforce the Spanish judgment, ordered the immediate surrender of the son to the defendant. This decision was also upheld by the Oberlandesgericht Bamberg (hereinafter ‘the Court of Appeal’). A certificate from the court of a Member State of origin pursuant to Article 42(2) of the new Brussels II Regulation (1) (hereinafter 'the certificate') exists. All objections to the return of the son were to be asserted before the Spanish courts.
The plaintiff then applied for the enforcement of the Spanish judgement to be suspended until a decision is made on the application for rectification which had been submitted to the Spanish courts by him. In this respect, the Court of Appeal upheld the decision of the Court of First Instance that the provisional suspension of enforcement was inadmissible. As long as a certificate pursuant to Article 42(2) of the new Brussels II Regulation exists, no substantive examination of this decision is to be carried out.
An admissible application by the plaintiff to the Bundesverfassungsgericht (hereinafter ‘the Supreme Court’) pursuant to Article 32(1) of the BVerfGG (2) had been successful. In principle, the success of an interim injunction is not determined by the prospects of success of a constitutional application yet to be lodged but by whether the Supreme Court can at least judge on the basis of the grounds of the application whether the subsequent constitutional matter is not inadmissible or manifestly unfounded from the outset.
The requirements for the applicability of Article 42 of the new Brussels II Regulation on the return of the child have not been met. The requirements for issuing the certificate were not met. The welfare of the child is at the centre of this case and the court in Madrid did not hear the son. It may be attributable to the plaintiff that the son was not heard. However, there is sufficient evidence to consider that repatriation would be a considerable burden on the son. He lived in Germany for over eight years, built up a solid social environment there, has no close relationship to the defendant, would have to manage a move to a foreign country by himself, does not speak Spanish, and the defendant does not speak German. The plaintiff could not accompany him for the simple reason that she was threatened by the execution of a prison sentence of several years for child abduction in Spain.
The Supreme Court suspended the enforcement of the order of the Court of First Instance until 11 August 2022.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Gesetz über das Bundesverfassungsgericht vom 12. März 1951 (Act on the Federal Constitutional Court of 12 March 1951).