Opinion of the Advocate General — ECLI:EU:C:2023:21
Date: 2023-01-12
Language of the case: Polish
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Poland

Summary C-638/22 PPU – 1 
Case C-638/22 PPU 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
13 October 2022 
Referring court: 
Sąd Apelacyjny w Warszawie (Poland) 
Date of the decision to refer: 
12 October 2022 
Applicants: 
T. C., Prokurator Generalny, Rzecznik Praw Dziecka 
Other parties to the proceedings: 
M. C., Prokurator Prokuratura Okręgowa we Wrocławiu, 
Prokurator Generalny, Rzecznik Praw Dziecka 
  
Subject matter of the main proceedings 
The subject matter of the proceedings before the referring court is the requests 
submitted by the Prokurator Generalny [Public Prosecutor General] and the 
Rzecznik Praw Dziecka [Commissioner for Children’s Rights] seeking the 
suspension of the enforcement of the final order given by the Sąd Okręgowy we 
Wrocławiu (Regional Court, Wrocław) on 15 June 2022 and of the final order 
given by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) on 
21 September 2022 in the action brought by T.C., with M.C. as an intervening 
party, to obtain an order requiring children to be returned to Ireland and the 
application lodged by T.C. seeking a declaration stating that the final decision is 
enforceable. 
Subject matter of the question referred 
The interpretation of certain articles contained in Regulation No 2201/2003 and in 
Regulation No 2019/1111, read in conjunction with Article 47 of the Charter of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-638/22 PPU 
 
2  
Fundamental Rights of the European Union, in the context of the existence of a 
provision of national law under which – at the request of the Prokurator Generalny 
(Public Prosecutor General), the Rzecznik Praw Dziecka (Commissioner for 
Children’s Rights) or the Rzecznik Praw Obywatelskich (Ombudsman) – the 
enforcement of a final order in a case involving the removal of a child under the 
Convention on the Civil Aspects of International Child Abduction concluded in 
The Hague on 25 October 1980 (‘the 1980 Hague Convention’) is by operation of 
law suspended. 
Question referred 
Does Article 11(3) of 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, and Article 22, Article 24, Article 27(6) and 
Article 28(1) and (2) of Council Regulation (EU) No 2019/1111 of 25 June 2019 
on jurisdiction, the recognition and enforcement of decisions in matrimonial 
matters and the matters of parental responsibility, and on international child 
abduction (recast), read in conjunction with Article 47 of the Charter of 
Fundamental Rights of the European Union, preclude the application of a 
provision of national law under which, in cases involving the removal of a person 
subject to parental responsibility or custody conducted under the Convention on 
the Civil Aspects of International Child Abduction adopted in The Hague on 
25 October 1980, the enforcement of an order for the removal of a person subject 
to parental responsibility or custody is suspended by operation of law where the 
Prokurator Generalny (Public Prosecutor General), Rzecznik Praw Dziecka 
(Commissioner for Children’s Rights) or Rzecznik Praw Obywatelskich 
(Ombudsman) submits a request to that effect to the Sąd Apelacyjny w Warszawie 
(Court of Appeal, Warsaw) within a period not exceeding two weeks from the day 
on which the order becomes final. 
Provisions of European Union law relied on 
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 (‘Regulation No 2201/2003’): recital 17, Article 11(1) to (8). 
Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and 
enforcement of decisions in matrimonial matters and in the matters of parental 
responsibility (‘Regulation 2019/1111’): Article 22, Article 24, Article 27(6), 
Article 29(1) and (2), Article 100. 
Charter of Fundamental Rights of the European Union: Article 47. 
RZECZNIK PRAW DZIECKA AND OTHERS (SUSPENSION OF ENFORCEMENT OF A DECISION REQUIRING RETURN) 
 
3 
Provisions of national law referred to 
Constitution of the Republic of Poland, Article 91: 
1. After publication thereof in the Journal of Laws of the Republic of Poland 
(Dziennik Ustaw Rzeczypospolitej Polskiej), a ratified international 
agreement shall constitute part of the domestic legal order and shall be 
directly applicable, unless its application depends on the enactment of a 
statute. 
2. An international agreement ratified upon prior consent granted by statute 
shall have precedence over that statute if such an agreement cannot be 
reconciled with the provisions of that statute. 
3. If an agreement, ratified by the Republic of Poland, establishing an 
international organisation so provides, the laws established by that 
organisation shall be applied directly and have precedence in the event of a 
conflict of laws. 
The kodeks postępowania cywilnego (Civil Procedure Code) (‘the KPC’) 
Art. 388(1) If, as a result of the enforcement of a decision, irreparable harm may 
be caused to a party, the court of second instance may, at the request of one of the 
parties, stay enforcement of its decision until the conclusion of the appeal on a 
point of law. If the appeal is dismissed, the court of second instance may also 
suspend the enforcement of the decision of the court of first instance. 
Art. 5182(1) The court of second instance for cases involving the removal of a 
person subject to parental responsibility or custody conducted under the 1980 
Hague Convention is the Sąd Apelacyjny w Warszawie (Court of Appeal, 
Warsaw). 
Art. 5191(2)1 An appeal on a point of law is also available for cases involving the 
removal of a person subject to parental responsibility or custody conducted under 
the 1980 Hague Convention. 
Art. 5191(2)2 The Public Prosecutor General, the Commissioner for Children’s 
Rights or the Ombudsman may lodge an appeal on a point of law with respect to 
the cases referred to in subparagraph 21 within four months of the date on which 
the decision became final. 
Provisions introduced into the KPC by the ustawą z dnia 7 kwietnia 2022 r. o 
zmianie ustawy Kodeks postępowania cywilnego (Law of 7 April 2022 amending 
the Code of Civil Procedure), which came into force on 24 June 2022: 
Art. 3881(1) In cases involving the removal of a person subject to parental 
responsibility or custody brought under [the 1980 Hague Convention], at the 
request of the entity referred to in Article 5191(2)2 notified to the court referred to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-638/22 PPU 
 
4  
in Article 5182(1) within a period not exceeding two weeks from the date on 
which the order for the removal of the person subject to parental responsibility or 
custody becomes final, the enforcement of such order shall be suspended by 
operation of law. 
Art. 3881(2) The suspension of enforcement of the order referred to in 
paragraph 1 shall cease if the entity referred to in Article 5191(2)2 does not lodge 
an appeal on a point of law within two months of the date on which the order 
became final. 
Art. 3881(3) Where an appeal on a point of law is brought by one of the entities 
referred to in Article 5191(2)2 within two months of the date on which the order 
referred to in Article 3881(1) becomes final, the suspension of enforcement of that 
order shall be extended by operation of law until the conclusion of the appeal on a 
point of law. 
Art. 3881(4) An entity who has applied for the suspension of the enforcement of 
an order as referred to in Article 3881(1) may withdraw such application within 
two months of the date on which the order became final, unless the entity referred 
to in Article 5191(2)2 has appealed on a point of law. 
Art. 3881(5) As a result of the withdrawal of a request to suspend enforcement of 
the order referred to in Article 3881(1), the order becomes enforceable. 
Article 3882 Failure to make a request pursuant to Article 388¹(1) shall not 
preclude the suspension of the enforcement of an order for the removal of a person 
subject to parental responsibility or custody on the application of a party made 
pursuant to Article 388(1). 
Article 3883 The lodging of an extraordinary appeal […] in a case involving the 
removal of a person subject to parental responsibility or custody brought under the 
1980 Hague Convention, shall suspend by operation of law the enforcement of an 
order concerning the removal of a person subject to parental responsibility or 
custody until the conclusion of such extraordinary appeal proceedings. 
Article 5985a The court referred to in Article 5182(1) shall notify the parties to the 
proceedings, the public prosecutor, the entities referred to in Article 5191(2)2 and 
the district court which ruled on the case at first instance where the enforcement of 
the order for the removal of the person subject to parental responsibility or 
custody has been stayed and where that the order becomes enforceable 
The Law of 7 April 2022 amending the Code of Civil Procedure: 
Article 2 
1. The provisions of the Law amended under Article 1, in the version as 
amended under the present Law, shall apply to cases initiated and not 
concluded before the date of entry into force of this Law by a final order on 
RZECZNIK PRAW DZIECKA AND OTHERS (SUSPENSION OF ENFORCEMENT OF A DECISION REQUIRING RETURN) 
 
5 
the removal of a person subject to parental responsibility or custody in a 
case conducted under [the 1980 Hague Convention]. 
2. In cases concerning the removal of a person subject to parental 
responsibility or custody conducted under [the 1980 Hague Convention], 
where an extraordinary appeal has been lodged but not examined before the 
date of entry into force of the present Law […], enforcement of the order 
relating to the removal of a person subject to parental responsibility or 
custody shall be suspended by operation of law until the conclusion of those 
appeal proceedings. 
Succinct presentation of the facts and procedure in the main proceedings 
1 T.C. and M.C., Polish citizens, are the parents of the children N.C., born on 8 June 
2011, and M.C.(l), born on 1 January 2017. The family has lived in Ireland for 
several years. That is where the children, who also hold Irish citizenship, were 
born. The parents have a permanent employment in Ireland, with M. C. currently 
on long-term sick leave. 
2 In the summer of 2021, M. C. went on holiday to Poland with the children, having 
the consent of their father to do so. In September 2021, M.C. informed T. C. that 
she would remain permanently in Poland with the children. T. C. never consented 
to the permanent relocation of the children from Ireland to Poland. 
3 On 18 November 2021, T.C. lodged an application with Sąd Okręgowy we 
Wrocławiu (Regional Court, Wrocław) seeking an order requiring M.C. to ensure 
the return of the children N.C. and M.C.(1) to Ireland on the basis of the 
provisions contained the 1980 Hague Convention. M.C sought to have the 
application dismissed. The Prokurator Okręgowy [Regional Prosecutor] in 
Wrocław joined the proceedings and supported the application to order the return 
of the children to Ireland 
4 By order of 15 June 2022, the Sąd Okręgowy we Wrocławiu (Regional Court, 
Wrocław) directed M.C. to secure the return of the children N.C and M.C.(l) to 
Ireland within seven days of the order becoming final.  
5 M. C. lodged an appeal against the order of the Sąd Okręgowy (Regional Court) 
with the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) that essentially 
sought the dismissal of the application for an order requiring the return of the 
children to Ireland  
6 T. C. and the Regional Prosecutor in Wrocław requested the dismissal of the 
appeal. 
7 By order of 21 September 2022, the Sąd Apelacyjny w Warszawie (Court of 
Appeal, Warsaw) dismissed the appeal, which it deemed to be unfounded. The 
Sąd Apelacyjny (Court of Appeal) agreed with the assessment of the Sąd 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-638/22 PPU 
 
6  
Okręgowy (Regional Court), especially with regard to the conditions stipulated in 
the 1980 Hague Convention for refusing to order the children’s return to Ireland 
not having been met. 
8 The order of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) of 
21 September 2022 became final upon being delivered. At the same time, the 
order of the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław) dated 
15 June 2022 also became final. 
9 On 28 September 2022, the seven-day deadline set for M.C. to comply with the 
obligation to ensure the return of the children expired without effect. 
10 On 29 September 2022, T. C. requested a copy of the final judgment along with a 
notice of enforceability. 
11 In a letter filed on 30 September 2022, the Commissioner for Children’s Rights 
requested that the enforcement of the final orders of the courts of both instances 
be suspended pursuant to Article 388¹(1) of the KPC. On 5 October 2022, the 
same request was made by the Public Prosecutor General.  
Brief summary of the reasons for the referral 
12 As the law currently stands, with effect from 24 June 2022, the Sąd Apelacyjny w 
Warszawie (Court of Appeal, Warsaw) is bound by an application for the 
suspending of the enforceability of the order for the return of the children on the 
basis of the provisions of the 1980 Hague Convention lodged by the 
Commissioner for Children’s Rights or by the Prosecutor General pursuant to 
Article 3881(1) of the KPC. 
13 In such case, the Sąd Apelacyjny (Court of Appeal) should issue an order 
suspending enforcement of the order for the return of the children and notify the 
court responsible for enforcement that the enforcement has been suspended. Given 
the circumstances of the case, Sąd Apelacyjny (Court of Appeal), in view of the 
requests received from the Prosecutor General and the Commissioner for 
Children’s Rights pursuant to Article 3881(1) of the KPC, the Court of Appeal 
should, moreover, dismiss the request submitted by T. C. with regard to appending 
a notice of enforceability to the final order and being provided with a copy. 
14 The Sąd Apelacyjny (Court of Appeal), in its current composition, doubts, 
however, whether the provisions of the two regulations referred to in the wording 
of the question referred and Article 47 of the Charter of Fundamental Rights allow 
the referring court to apply Article 3881 of the KPC in the present case or whether 
that provision must, in accordance with the principle of the primacy of EU law, be 
disregarded in a case with an EU dimension. The EU nature of the case is certain 
as both Ireland, the state where the children are habitually resident, and Poland, 
the state where the children were wrongfully retained, are members of the 
RZECZNIK PRAW DZIECKA AND OTHERS (SUSPENSION OF ENFORCEMENT OF A DECISION REQUIRING RETURN) 
 
7 
European Union and the subject matter of the dispute is governed by the 
provisions contained in Regulation 2201/2003. 
15 The doubts on the part of the Sąd Apelacyjny (Court of Appeal) relate to three 
issues: 
(1) The impact of the provision contained in Article 3881 of the KPC on 
the effectiveness of the protection of the rights of those to whom EU law 
applies, especially Article 11(3) of Regulation 2201/2003, i.e. the right to 
obtain and enforce a judgment ordering the return of an abducted child; 
(2) the relationship between Article 3881 of the KPC and Article 47 of the 
Charter of Fundamental Rights in cases where the provisions of the Charter 
are applicable; 
(3) the consequences – especially in the light of the principle of sincere 
cooperation – of the insertion into the KPC of Article 3881 during the period 
following the adoption, by the EU legislature, of Regulation No 2019/1111 
(although before its entry into force), a regulation which seeks to contribute 
to faster judgments and to the more expeditious enforcement of judgments 
ordering the return of a child. 
16 Civil proceedings in Poland are proceedings involving courts at two levels. 
Substantive judgments rendered by a court of second instance shall be final and 
enforceable, including where they are subject to an appeal on a point of law to the 
Sąd Najwyższy (Supreme Court) as an extraordinary remedy. 
17 As a rule, final decisions are enforceable even if an appeal on a point of law has 
been lodged against a judgment. However, the legislator has provided for the 
possibility of derogation from this rule. Pursuant to Article 388 of the KPC, at the 
request of a party, the court may suspend the effectiveness and enforceability of a 
final judgment until the conclusion of appeal proceedings on a point of law if 
irreparable damage may be caused to a party as a result of the enforcement of a 
judgment. On the basis of this provision, it is up to the court of second instance, 
which issued a final decision, to assess whether the prerequisites for the 
suspension of effectiveness and enforceability are met. 
18 Courts are required to grant applications pursuant to Article 388 of the KPC only 
if they consider, in the light of all the circumstances of a case, that the party on 
whom a judgment has imposed certain obligations may be threatened with 
irreparable damage, which could not be reversed if the Supreme Court, in appeal 
proceedings on a point of law, were to set aside the final judgment of a court of 
second instance. Case-law shows that in such cases, the courts balance the 
legitimate interests of all the participants in proceedings whose rights will be 
affected by a final judgment. 
19 As of 24 June 2022, an amendment to the KPC entered into force. In particular, 
Article 388¹, quoted above, was added, referring exclusively to cases in which, on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-638/22 PPU 
 
8  
the basis of the provisions of the 1980 Hague Convention, the ordinary courts 
have validly ordered the return of a child wrongfully removed or retained. This 
provision obliges the Court of Appeal in Warsaw, as a court of second instance 
with exclusive jurisdiction over such cases, to stay the enforcement of any 
judgment ordering the return of a child under the provisions of the 1980 Hague 
Convention, including in cases in which the provisions of Regulation 
No 2201/2003 or Regulation No 2019/1111 are applicable, if such stay is 
requested by the Public Prosecutor General, the Commissioner for Children’s 
Rights or the Ombudsman and the request is made within 14 days of the Court of 
Appeal ordering the return of a child. 
20 The provision of Article 388¹ of the KPC thus allows designated public entities to 
block the enforcement of a final judgment for months in cases where the speed of 
enforcement is crucial for the protection of the interests of a child. The provision 
would appear to undermine the requirement under EU law for expeditious court 
proceedings. 
21 In addition, the Court of Appeal points out that even in the event that the Civil 
Chamber of the Supreme Court refuses to examine an appeal on a point of law or 
dismisses it, so that the order regains its enforceability a few months after the 
application of Article 3881 of the KPC, the same public entities will again be able 
to have the enforcement of the order suspended, this time on the basis of 
Article 3883 of the KPC, added by the same amending law, using their right to 
lodge an extraordinary appeal, which will be subject to examination by the Izba 
Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public 
Affairs Chamber) of the Supreme Court. The consideration of an appeal on a point 
of law by the Civil Chamber of the Supreme Court does not in fact preclude the 
filing of an extraordinary appeal; all that has been introduced is a restriction 
stipulating that an extraordinary appeal cannot be based on grounds that have been 
the subject of the consideration of an appeal on a point of law or an appeal 
accepted for consideration by the Supreme Court. The lodging of an extraordinary 
appeal now suspends by operation of law the enforcement of an order for the 
return of a child who has been abducted or unlawfully retained pursuant to 
Article 3883 of the KPC. 
22 The Court of Appeal also submits that, although literally Article 3881 of the KPC 
provides for an ex lege effect, such effect is triggered by the lodging of a request 
by the Commissioner for Children’s Rights, the Ombudsman or the Public 
Prosecutor General. In reality, this effectively means that a decision to suspend the 
enforcement of a final judgment has been delegated to entities, none of which can 
be considered a court. Neither the Commissioner for Children’s Rights, nor the 
Ombudsman, nor the Public Prosecutor General – whose function is performed by 
a politician, the incumbent Minister of Justice – are a court. In the meantime, it is 
their assessment and their will that decides whether to suspend the enforceability 
of a final decision issued by a court under the procedure provided for by law in a 
case where the imperative for the conduct of expeditious court proceedings 
derives from EU law. A request by one of these entities for the suspension of 
RZECZNIK PRAW DZIECKA AND OTHERS (SUSPENSION OF ENFORCEMENT OF A DECISION REQUIRING RETURN) 
 
9 
enforcement is binding on the court and is not subject to any review. The role of 
the Court of Appeal was reduced by Article 5985a of the KPC to notifying the 
participants in proceedings and the court of first instance that the enforcement of 
the decision has been suspended under Article 3881 of the KPC. 
23 In addition to doubts about compliance with the EU regulations referred to, the 
question also arises whether Article 3881 of the KPC deprives to that extent the 
participants in proceedings of their right of access to a court and whether this is 
compatible with the content of Article 47 of the Charter of Fundamental Rights in 
cases where it applies. 
24 At the same time, the Court of Appeal submits that this is a procedural solution 
that has not been applied to any other type of case heard in accordance with the 
provisions of the KPC, including other family cases. 
25 In the present case, given the date when the request was submitted, Regulation 
No 2201/2003 is applicable. Recital 17 of the Regulation states that in cases of the 
wrongful removal or retention of a child, the return of the child should be obtained 
without delay, and to this end the 1980 Hague Convention continues to apply as 
complemented by the provisions of the Regulation, in particular Article 11. 
Article 11 of Regulation 2201/2003 stipulates, in paragraph 3 thereof, that courts 
should act expeditiously using the most expeditious procedures available under 
national law and obliges a court to issue its judgment no later than six weeks after 
the application is lodged, except where special circumstances make it impossible 
to comply with such deadline. 
26 The principle of expeditious court proceedings has now been reinforced by 
Regulation No 2019/1111, which requires a court of first instance to give its 
decision no later than six weeks after it is seised and a court of higher instance to 
give its decision no later than six weeks after all the required procedural steps 
have been taken and the court is in a position to examine the appeal (Article 24(2) 
and (3)). In addition, the enforcement of decisions ordering the return of a child 
should in principle take place within six weeks (Article 28(2)). It is further 
provided that a decision ordering the return of the child may be declared 
provisionally enforceable, notwithstanding any appeal, where the return of the 
child before the decision on the appeal is required by the best interests of the child 
(Article 27). 
27 Pursuant to Article 100 of Regulation No 2019/1111, the provisions of that 
measure are not applicable to the present case, as the application was received by 
the court of first instance before 1 August 2022. However, the Court of Appeal 
notes that the provision contained in Article 3881 of the KPC was introduced in 
June 2022, that is, some time after the enactment of Regulation No 2019/1111 and 
shortly before its entry into force. The chronology of the legislative actions gives 
rise to doubts about the compatibility of the Polish legislature’s actions with 
Treaty rules and seems likely to constitute one of the circumstances for the Court 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-638/22 PPU 
 
10  
of Justice to consider in the course of preliminary ruling proceedings in order to 
provide an answer. 
28 In the event that the Court of Justice should confirm the aforementioned doubts 
expressed by the Court of Appeal, it is also important for the Court of Justice to 
decide whether the relevant provisions of EU law, in accordance with the 
principle of primacy, oblige national courts to disapply the provision of national 
law referred to in such cases (see judgments of the Court of Justice of 15 July 
1964, Costa, 6/64, EU:C:1964:66; of 19 June 1990, Factortame and Others, 
C-213/89, EU:C:1990:257; of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49. 
Grounds for the application of the urgent procedure 
The referring court justifies its application for the urgent procedure on the grounds 
of the welfare of the children concerned, pointing in particular to the risk of a 
deterioration in the parent/child relationship due to prolonged separation from the 
father and the risks to the welfare of the children arising from the prolonged 
destabilisation of their lives. In this regard, the referring court refers to judgments 
of the Court of Justice: of 22 December 2010, [Aguirre Zarraga] C-491/10 PPU, 
EU:C:2010:828 and Mercredi, C-497/10 PPU, EU:C:2010:829).