Bundesverfassungsgericht; 2022-09-01; 1 BvR 1691/22
Decision by national courts in the field of European Union law — ECLI:DE:BVerfG:2022:rk20220901.1bvr169122
Date: 2022-09-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0901(51)_ENG_SUMJURE
JURE summary
JURE summary
This order relates to an application for a temporary injunction in a case concerning the rights of a minor made to the Bundesverfassungsgericht (hereinafter ‘the Federal Constitutional Court’).
The legal guardian of a minor child (hereinafter ‘the plaintiff’) sought a temporary suspension of an order of the Amtsgericht Bamberg (hereinafter ‘the Court of First Instance’) authorising the enforcement of a Spanish court decision ordering the return of the child to her father, who lives in Spain. The plaintiff alleged a violation of the child’s rights under the GG (1) and Article 24 of the Charter of Fundamental Rights of the European Union (2). According to the plaintiff, the child had not been heard in the proceedings before the Madrid court, and no account had been taken of the facts that the child had lived in Germany for most of her life, did not know the father and did not speak Spanish.
The Federal Constitutional Court declared the application admissible. According to the Federal Constitutional Court, it could not be ruled out that both the Court of First Instance and the Oberlandesgericht Bamberg (hereinafter ‘the Court of Appeal’) had interpreted and applied Article 42 of the new Brussels II Regulation (3) in such a way as to result in constitutionally unjustified infringements of the minor’s fundamental rights. If the outcome of the constitutional complaint is pending, the consequences that would arise if the temporary injunction were not granted but the constitutional complaint is later successful must be weighed against the disadvantages that would occur if the temporary injunction requested is granted but the constitutional complaint is unsuccessful. The conditions for issuing the requested temporary injunction were met.
Therefore, the Federal Constitutional Court suspended the enforcement of the Court of First Instance’s decision until the final decision on the constitutional complaint, for a maximum of 6 months.
(1) Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany).
(2) Charter of Fundamental Rights of the European Union.
(3) 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.