View of the Advocate General — ECLI:EU:C:2008:377
Date: 2008-07-01
Language of the case: Lithuanian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: Lithuania

Summary of the Judgment 1. Preliminary rulings – Urgent preliminary ruling procedure – Conditions (Rules of Procedure of the Court, Art. 104b) 2. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Enforceability of a certified judgment requiring the return of a child following a judgment of non‑return (Council Regulation No 2201/2003, Arts 11(8), 40 and 42, and Annex IV) 3. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Application for non‑recognition of a judicial decision if no application for recognition has been submitted beforehand (Council Regulation No 2201/2003, Arts 11(8), 21(3) and (4), 40 to 42) 4. Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Application for non‑recognition of a judicial decision if no application for recognition has been submitted beforehand (Council Regulation No 2201/2003, Art. 31(1)) 1. A request from a referring court that a reference for a preliminary ruling concerning the interpretation 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, be dealt with under the urgent procedure pursuant to Article 104b of the Rules of Procedure of the Court of Justice is justified if it is based on a need to act urgently. That is the case where any delay would be very unfavourable to the relationship between the child and the parent with whom he or she does not live and where the damage to that relationship could be irreparable. Such a need is apparent both from recital 17 in the preamble to the regulation, which refers to the return without delay of a child which has been removed or retained, and to Article 11(3) of that regulation, which sets a deadline of six weeks for the court to which an application for return is made to issue its judgment. The need to protect the child against any possible harm and the need to ensure a fair balance between the interests of the child and those of the parents are also capable of justifying recourse to the urgent preliminary ruling procedure. (see paras 44-45) 2. Once a non‑return decision in respect of a child has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in 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, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. If no doubt has been expressed as regards the authenticity of that certificate and if it was drawn up in accordance with the standard form set out in Annex IV to the regulation, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child. The enforceability of a judgment requiring the return of a child following a judgment of non‑return enjoys procedural autonomy, so as not to delay the return of a child who has been wrongfully removed to or retained in a Member State other than that in which that child was habitually resident immediately before the wrongful removal or retention. Procedural steps which, after a non‑return decision has been taken, occur or recur in the Member State of enforcement are not decisive and may be regarded as irrelevant for the purposes of implementing the regulation. If the position were otherwise, there would be a risk that the regulation would be deprived of its useful effect, since the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child is wrongfully retained have been exhausted. Thus, even if the object of Regulation No 2201/2003 is not to unify the rules of substantive law and of procedure of the different Member States, it is nevertheless important that the application of those national rules does not prejudice its useful effect. That interpretation of the regulation, which is consistent with its requirements and purpose, is the only interpretation which best ensures the effectiveness of Community law. (see paras 63, 80-83, 89, operative part 1) 3. Except where the procedure concerns a decision certified pursuant to Articles 11(8) and 40 to 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, the possibility that any interested party may apply for non‑recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand, cannot be discounted in general terms. First, Article 21(3) of the egulation confirms such a possibility, subject to the provisions of Section 4 of Chapter III and, second, it is not precluded that an application for non‑recognition of a decision results incidentally in its recognition, in which case Article 21(4) would apply. The possibility of submitting an application for non‑recognition if no application for recognition has been lodged beforehand is capable of satisfying various objectives, either of a substantive nature, in particular those relating to the best interests of the child or the stability and harmony of the family, or of a procedural nature, by making it possible to bring forward the production of evidence which might no longer be available in the future. Such an application must however comply with the procedure provided for in Section 2 of Chapter III of the regulation and, in particular, it can be pursued according to the provisions of domestic law only if they do not limit the scope and effects of the regulation. (see paras 92-96, operative part 2) 4. Article 31(1) 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, in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for non‑recognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make submissions. The situation envisaged in the event of an application for non‑recognition is different from that covered by Article 31(1). Thus, since the procedure provided for in Article 31 of the Regulation is of an enforceable and unilateral nature, it cannot take account of the submissions of the party against whom enforcement is sought without assuming a declaratory and adversarial nature, which would run counter to its very logic according to which the rights of the defence are ensured by means of the appeal provided for in Article 33 of the Regulation. On the contrary, in the event of an application for non‑recognition of a judicial decision where the applicant is the person against whom the application for a declaration of enforceability might have been brought and where the conditions justifying the exclusion, for the party against whom enforcement is sought, of the possibility of making submissions are not fulfilled, the purpose of the procedure is to seek a negative assessment which, by its nature, calls for an adversarial procedure. It follows that the party against whom the application for non‑recognition has been lodged cannot, in the event of an application for non‑recognition, be deprived of the possibility of making submissions. (see paras 101-107, operative part 3)