VIEW OF ADVOCATE GENERAL

BOT

delivered on 7 December 2010 1( )

Case C‑491/10 PPU

Joseba Andoni Aguirre Zarraga

v

Simone Pelz

(Reference for a preliminary ruling from the Oberlandesgericht Celle (Germany))

(Urgent preliminary ruling procedure – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Provisional rights of custody – Child abduction – Certified judgment ordering the return of a child following a judgment of non‑return – Conditions for the issue of the certificate – Child’s opportunity to be heard – Charter of Fundamental Rights – Hearing of the child by the judicial authorities of the Member State of enforcement in the proceedings which led to the judgment of non-return – Power of the court of the Member State of enforcement to oppose the enforcement of a judgment ordering the return of the child delivered following a judgment of non-return)

1. Disputes between a divorcing couple over the future of their common children can be a distressing not to say traumatising ordeal for the children concerned. That ordeal can be all the more difficult where, in the case of a mixed couple, one of the parents, who does not accept the measures taken in respect of the children by the court of the Member State where the couple resided, takes the children to his or her country of origin and endeavours to obtain a contrary judgment from the courts of that State. If that parent is successful, the children’s situation is then governed by contradictory judicial decisions, the most common outcome of which being that all normal relations with the other parent are broken off, in some cases for a long period of time.

2. The seriousness of the damage caused to children by such conduct prompted States, initially by way of agreement, in the form of the Hague Convention of 25 October 1980, ( ) and then, within the European Union, by way of agreement and subsequently by way of regulation, to establish systems of cooperation between the courts of different States which are intended to ensure that, where a child is wrongly removed or retained by one of its parents, the child is returned as quickly as possible to the place where he or she was living before his/her abduction.

3. Council Regulation (EC) No 2201/2003, ( ) relevant in this case, thus provides for a system whereby, in cases where the court of the Member State to which the child has been wrongfully removed delivers a judgment opposing the child’s return, the court of the child’s place of residence has the last word, so to speak, and may order the child’s return by judgment which is enforceable by operation of law and which is not open to challenge in the other Member States.

4. That enhanced enforceability is dependent on the issue by the court which delivered that judgment of a certificate stating, in particular, that the child has been given an opportunity to be heard, unless that is not possible because of the age or maturity of the child, and that that court has taken account of the evidence underlying the judgment of non-return delivered by the court of the place to which the child was unlawfully removed.

5. The enforcement of judgments certified in this way has already given rise to a number of problems of interpretation which have enabled the Court to confirm and clarify the scope of their specific enforceability. ( ) Thus, in Povse, cited above, it held that, under the division of jurisdiction between the court of the Member State of origin and the court of the Member State of enforcement, the latter can do no more than declare a certified judgment to be enforceable, since challenges to the certificate may be raised only in the courts of the Member State of origin. ( )

6. In this case, the referring court seeks to ascertain whether, despite the specific enforceability of a certified judgment, it can oppose the enforcement of that judgment in the event of a particularly serious infringement of a fundamental right of the child, where the child has not been heard, in breach of the provisions of Regulation No 2201/2003 interpreted in accordance with the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’). In the alternative, it asks to what extent it is required to enforce such a judgment where the certificate accompanying it contains a manifestly inaccurate declaration as to the hearing of the child.

7. The referring court also pointed out that it was not requesting application of the urgent preliminary ruling procedure on the ground that its two questions were fundamental and that they had to be examined as part of a comprehensive preliminary ruling procedure.

8. The Court, in accordance with the power conferred on it by the third and last subparagraphs of Article 104(b)(1) of its Rules of Procedure, took the view, however, that the conditions for the application of the urgent procedure were met and decided to deal with this case under that procedure.

9. In this View, before examining the questions referred for a preliminary ruling, I shall propose that the Court rule on the merits of the premiss on which those questions are based. Those questions are founded on the premiss that the child was not given an opportunity to be heard, contrary to what is stated on the certificate accompanying the judgment ordering her return, and that the court of the Member State of origin did not therefore comply with the conditions governing the issue of such a certificate.

10. However, while the documents before the Court do show that the child could not be heard by that court, they also show that she was heard at the request of the judicial authorities of the Member State of enforcement in the course of the proceedings which led to the judgment of non‑return, and that the view expressed by the child at that hearing was mentioned in the certified judgment at issue.

11. That is why, in this View, I shall propose that the Court should first of all examine the merits of the referring court’s premiss and thus give a ruling on whether, in such circumstances, the condition to the effect that a judgment ordering the return of the child may be certified only if the child has been given an opportunity to be heard has been satisfied.

12. I shall set out the reasons why, in my opinion, the view must be taken that that condition has indeed been satisfied.

13. I shall say next, and in the alternative, that, even assuming that that condition was not satisfied, a court of the requested Member State may not oppose the enforcement of a certified judgment. I shall reiterate that, because of the strict separation of jurisdiction between the courts of the Member State concerned, challenges to such a judgment and to a certificate issued under Article 42 of Regulation No 2201/2003 fall within the exclusive jurisdiction of the courts of the Member State of origin.

I – Legal framework

14. The relevant texts are the 1980 Hague Convention, Regulation No 2201/2003 and the Charter of Fundamental Rights.

15. The 1980 Hague Convention, which entered into force on 1 December 1983, was ratified by all the Member States. It continues to apply between them but its provisions are supplemented by those of Regulation No 2201/2003. In relations between the Member States, the provisions of the Regulation take precedence over those of the Convention. ( )

A – The 1980 Hague Convention

16. The 1980 Hague Convention starts from the assumption that any forced removal of a minor from his or her habitual place of residence without the consent of the person having custody is seriously prejudicial to the interests of the child and constitutes unlawful conduct which must be brought to an end as quickly as possible, without examination of the substance of the dispute between the parents.

17. Under Article 1, the objects of that convention are thus to ensure that rights of custody in one Contracting State are effectively respected in the other Contracting States and to secure the prompt return to the former Contracting State of a child wrongfully removed or retained.

18. Under Article 3 of that convention, removal is considered to be wrongful where it is in breach of rights of custody attributed to a person by law or by a judicial decision of the State in which the child was habitually resident immediately before the removal.

19. In all matters of custody, ‘the interests of the child’ are paramount. The child is entitled to stability, to be able to remain in his or her habitual place of residence, this being regarded as one of the essential foundations of the child’s equilibrium and development. The child is not an object that the parents can use as a tool in the event of disputes between them.

20. In those circumstances, where a child is found to have been wrongfully removed, an order is made for the child’s immediate return to his or her place of habitual residence. The return order is therefore dissociated from the award of custody, which the court of the place of habitual residence is best placed to assess.

21. Article 12 of the 1980 Hague Convention provides:

‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

…’

22. However, the authors of that convention wished to temper the virtually automatic return mechanism by means of exceptions which allow account to be taken of the child’s interests and the circumstances. Article 13 of the Convention thus provides that the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

– the parent having custody was not actually exercising the custody rights at the time of removal, or had consented to or subsequently acquiesced in that removal; or

– there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

– the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

23. Under Article 4, the 1980 Hague Convention is to cease to apply when the child attains the age of 16 years. Moreover, in accordance with Article 20 of the Convention, the return of the child under the provisions of Article 12 of the Convention may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

B – Regulation No 2201/2003

24. Regulation No 2201/2003, like the 1980 Hague Convention, seeks to discourage the abduction of children by ensuring that a child who has been abducted is expeditiously returned to the Member State of origin. The context of that regulation is the area of freedom, security and justice, which, as recital 2 in its preamble points out, has as its cornerstone the mutual recognition of judicial decisions.

25. To that end, the aim of Community legislature was to establish the following system:

– the courts of the Member State of origin retain jurisdiction. The wrongful removal of the child does not in itself lead to a transfer of jurisdiction;

– the courts of the requested Member State must ensure the expeditious return of the child;

– if the court of the requested Member State decides not to order the return of the child, it must forward its judgment and the evidence underlying it to the competent court of the Member State of origin and the two courts must cooperate;

– if the court of the Member State of origin orders the return of the child, its judgment, if certified by that court, is enforceable by operation of law in the requested Member State and cannot be challenged in that State.

26. Recital 17 in the preamble to Regulation No 2201/2003 is worded as follows:

‘In cases of 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] would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.’

27. According to recital 21 in the preamble to that regulation, ‘the recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required’.

28. According to recital 23 in the preamble to that regulation, ‘judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this Regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law’. Recital 24 in the preamble to Regulation No 2201/2003 goes on to say that ‘the certificate issued to facilitate enforcement of the judgment should not be subject to appeal. It should be rectified only where there is a material error, i.e. where it does not correctly reflect the judgment’.

29. That regulation also recognises the importance of hearing the child. According to recital 19 in its preamble, ‘the hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable’.

30. According to recital 20 in the preamble to the aforementioned regulation, ‘[t]he hearing of a child in another Member State may take place under the arrangements laid down in Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters’. ( )

31. Finally, recital 33 in the preamble to Regulation No 2201/2003 states that ‘[t]his Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights … . In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union …’

32. The various intentions of the legislature are implemented in the following way in the articles of Regulation No 2201/2003.

33. Under Article 2(11) of that regulation, which essentially contains the same definition as the 1980 Hague Convention, there is ‘wrongful removal or retention’ where a child’s removal or retention is in breach of rights of custody acquired by judgment under the law of the Member State where the child was habitually resident immediately before the removal or retention, provided that the rights of custody were actually exercised.

34. Article 11 of that regulation, entitled ‘Return of the child’, provides:

‘1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the [1980 Hague Convention] in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given an opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

…

6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately, either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time-limit.

8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.’

35. Article 42 of Regulation No 2201/2003, which forms part of Section 4 of Chapter III, provides:

‘1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment ordering the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.

2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:

(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;

(b) the parties were given an opportunity to be heard; and

(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.

In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.

The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)).

The certificate shall be completed in the language of the judgment.’

36. Under Article 47(2) of Regulation No 2201/2003, ‘[a]ny judgment delivered by a court of another Member State and declared to be enforceable … or certified in accordance with … Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State’.

C – The Charter of Fundamental Rights

37. The Charter of Fundamental Rights, which, under Article 6 TEU, has the same binding force as the treaties, sets out the rights of the child in the following terms in Article 24:

‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

38. The facts giving rise to the dispute in the main proceedings, as presented by the referring court, may be summarised as follows.

39. Joseba Andoni Aguirre Zarraga and Simone Pelz were married on 25 September 1998 in Erandio (Spain). Their daughter from the marriage, Andrea, was born on 31 January 2000. The parents’ family home was in Sondka (Spain).

40. The parents separated at the end of 2007. They each instituted divorce proceedings and applied for the award of sole custody of Andrea.

41. By decision of 12 May 2008, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao (Court of First Instance and Preliminary Investigations No 5, Bilbao) (Biscaya, Spain) awarded provisional rights of custody in respect of Andrea to her father. Andrea then went to her father’s home. In June 2008, Andrea’s mother moved to Germany. At the end of the 2008 summer holidays, during which Andrea had gone to visit her mother, the mother kept her daughter with her. Since 15 August 2008, Andrea has therefore lived in her mother’s home in Germany. On the same day, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao made an order prohibiting Andrea from leaving Spanish territory.

42. Andrea’s father then applied to have his daughter returned to Spain under the 1980 Hague Convention. That application was dismissed by order of 1 July 2009, on the basis of the second paragraph of Article 13 of that convention. The hearing conducted at that time showed that Andrea was resolutely and categorically opposed to her return to Spain. The expert instructed by the court following that hearing concluded that Andrea’s views should be taken into account in the light of both her age and her maturity.

43. The Bundesamt für Justiz (German Federal Office of Justice) sent that order to the Spanish central authority by letter of 8 July 2009.

44. During the same month, the custody proceedings were continued before the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao. That court considered that a fresh expert opinion should be obtained and that Andrea should be heard in person, and set dates for both in Bilbao. Neither Andrea nor her mother attended when called to do so. The Spanish court rejected the earlier application by Andrea’s mother for permission for herself and Andrea to leave Spain freely once the expert opinion had been obtained and Andrea had been heard. Nor did it grant the mother’s express request that Andrea’s hearing be conducted via video conference.

45. By judgment of 16 December 2009, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao awarded sole custody of the child to the father.

46. Andrea’s mother lodged an appeal against that judgment on the ground in particular that Andrea should be heard. By order of 21 April 2010, the Audiencia Provincial de Vizcaya (Regional Court, Biskaya) dismissed that request for the arrangement of a hearing for the child.

47. On 5 February 2010, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao certified the judgment of 16 December 2009 in accordance with Article 42 of Regulation No 2201/2003.

48. For her part, the child’s mother made an application asking [the German court] not to make an order for enforcement and not to recognise that judgment.

49. By order of 28 April 2010, the Amtsgericht Celle (Celle Local Court, sitting as a family court, Germany) granted that application on the ground that the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao had not given Andrea a hearing before delivering its judgment.

50. On 18 June 2010, the child’s father appealed against that order.

51. The Oberlandesgericht Celle (Celle Higher Regional Court) before which the appeal was lodged, states that it has to address the following questions.

52. Although the judgment of 16 December 2009 is a judgment ordering the return of the child following a judgment of non-return, which the court of the Member State of enforcement does not, in principle, have power to review, as is clear from Rinau and Povse, cited above, it considers that, in the event of a particularly serious infringement of fundamental rights, it should itself have a power of review to enable it to oppose the enforcement of such a judgment.

53. The Oberlandesgericht Celle considers that, in the dispute in the main proceedings, the fact that the court of the Member State of origin did not hear Andrea constitutes an infringement of Article 24(1) of the Charter of Fundamental Rights. This is an infringement of such seriousness as to confer a power of review on the court of the Member State of enforcement on the basis of an interpretation of Article 42(1) of Regulation No 2201/2003 in conformity with the Charter of Fundamental Rights.

54. The Oberlandesgericht Celle also asks whether, in the event that, notwithstanding such an infringement of fundamental rights, the court of the Member State of enforcement has no power of review, it can be bound by a certificate issued under Article 42 of Regulation No 2201/2003 the content of which is manifestly incorrect. That would be the situation in this particular case, in which the certificate contains a declaration which is manifestly inaccurate, namely that the child was heard by the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao.

55. The Oberlandesgericht Celle therefore decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power of review, pursuant to an interpretation of Article 42 of the Brussels IIa Regulation in conformity with the Charter on Fundamental Rights?

(2) Is the court of the Member State of enforcement obliged to enforce the judgment of the court of the Member State of origin notwithstanding the fact that, according to the case-file, the certificate issued by the court of the Member State of origin under Article 42 of the Brussels IIa Regulation contains a declaration which is manifestly inaccurate?’

III – My analysis

56. By its questions, the referring court seeks to ascertain, first of all, whether Regulation No 2201/2003 is to be interpreted as meaning that the court of the requested Member State may oppose the enforcement of a judgment ordering the return of a child which was delivered on the basis of Article 11(8) of that regulation where it appears that the child in question was not heard, contrary to the provisions of Article 42 of that regulation, interpreted in accordance with the fundamental right laid down in Article 24 of the Charter of Fundamental Rights. Next, it asks whether, in the event of a negative answer to the first question, that court is obliged to proceed with enforcement where it appears that the certificate accompanying the judgment at issue is manifestly incorrect, in that it wrongly states that the child was heard.

57. Those two questions are thus based on the premiss that, in the main proceedings, the child was not heard, in breach of Article 42 of Regulation No 2201/2003 read in the light of Article 24 of the Charter of Fundamental Rights.

58. However, it is clear from the information supplied by the referring court and from the documents before the Court that the child was heard by the Amtsgericht Celle (Family Court) at the hearing on 20 March 2009 in the course of the proceedings which led to the order of non-return made by that court on 1 July 2009.

59. It is also clear from an examination of the judgment of the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao of 16 December 2009 ordering the return of the child following that order of non-return that that court took that hearing into consideration and explained the reasons why, despite the child’s refusal to return to live in Spain, it considered that the return of the child was the action which best suited the child’s interests.

60. According to the referring court, that hearing and the reference to it in the judgment of 16 December 2009 do not permit the conclusion that the fundamental rights of the child, implemented in Article 42(2)(a) of Regulation No 2201/2003, were observed. It should be recalled that that provision states that the court of the Member State of origin which decides to order the return of the child notwithstanding a judgment of non-return may certify its judgment and thus give it enhanced enforceability only if the child has been given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity.

61. The referring court’s premiss therefore rests on an interpretation of Article 42 of Regulation No 2201/2003 to the effect that the court of the Member State of origin cannot confine itself to referring to a hearing of the child conducted by the judicial authorities of the requested State in the course of the proceedings which led to the judgment of non-return, but must itself conduct a new hearing of the child, since it would otherwise seriously infringe the child’s fundamental rights, set out in Article 24 of the Charter of Fundamental Rights.

62. In my view, it is essential that the Court, before examining the questions submitted by the referring court, rule on the validity of such a premiss because, on the one hand, it determines whether or not those questions are relevant and, on the other hand, it concerns an important aspect of the system and guarantees provided for in Regulation No 2201/2003.

A – The merits of the premiss underlying the questions referred

63. I propose that the Court should give a ruling first on the following question:

‘Does the hearing of the child by the judicial authorities of the Member State of enforcement in the proceedings which led to a judgment of non-return and which the court of the Member State of origin took into account in its judgment ordering return, delivered under Article 11(8) of Regulation No 2201/2003, justify a conclusion that the condition laid down in Article 42(2)(a) of that regulation, to the effect that the child must have been given an opportunity to be heard, was satisfied?’

64. In accordance with the principle of inter partes proceedings, the parties to the dispute in the main action and the other parties authorised to lodge observations before the Court, in writing or during the oral procedure, were asked to comment on that question.

65. The German Government and the European Commission submit that that question should be answered in the negative. They base their position on a number of arguments which may be summarised as follows.

– The hearing before the court of the Member State of enforcement and the hearing referred to in Article 42(2)(a) of Regulation No 2201/2003 serve different purposes, since the former relates to the return of the child whereas the latter is intended to enable a final ruling to be given on rights of custody in respect of the child and therefore has much wider scope.

– Accepting the proposition that the condition laid down in Article 42(2)(a) of Regulation No 2201/2003 is satisfied where the child was heard by the court of the Member State of enforcement would have the effect of systematically discharging the court of the Member State of origin from the obligation to hear the child and would therefore make it possible to circumvent that provision. This would also be contrary to the scheme of that provision, which lays down the obligation, in subparagraph (a), to hear the child, and not only the duty, in subparagraph (c), to take into account the evidence underlying the judgment of non-return.

– According to the Commission, in this case, the time which elapsed between the hearing of the child by the court of the requested Member State and the delivery of the judgment ordering the child’s return, that is to say almost nine months, did not justify the conclusion that the condition laid down in Article 42(2)(a) of Regulation No 2201/2003 was satisfied.

66. At the hearing of 6 December 2010 Ms Pelz and the Greek, French and Latvian Governments also supported that position.

67. Unlike those intervening parties and the referring court, I share the view of Mr Aguirre Zarraga and the Spanish Government that the question under examination should be answered in the affirmative. I base my position, on the one hand, on the content of the child’s fundamental right to be heard, implemented by Article 42(2)(a) of Regulation No 2201/2003, and, on the other hand, on the system of cooperation between the courts of different Member States provided for in that regulation.

1. The substance of the child’s fundamental right to be heard

68. With regard to the child’s fundamental right to be heard, as implemented by Article 42(2)(a) of Regulation No 2201/2003, I would submit first that it must be given an autonomous interpretation, secondly that it serves to ensure that a child who is sufficiently capable of forming his or her own views has been given an opportunity to express his or her view on his/her return, and, thirdly, that view is not binding on the court but is one of the criteria by which it assesses whether it is in the child’s best interests not to be returned.

a) An autonomous interpretation

69. It is common ground that Regulation No 2201/2003, like any legislative act of the Union, must be implemented in accordance with fundamental rights. As it states in recital 33 in its preamble, that regulation observes the principles of the Charter of Fundamental Rights and, in particular, seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of that charter. Moreover, as stated in recital 19 in the preamble to the Regulation, the hearing of the child plays an important role in its application.

70. Regulation No 2201/2003 thus contains four provisions stipulating that the child must have been given an opportunity to be heard, that is to say Article 11(2) and Article 42(2)(a), which concern the return of a child wrongfully removed or retained, Article 23(b), concerning the grounds for non-recognition of judgments relating to parental responsibility, and Article 41(2)(c), concerning the recognition of a judgment on rights of access.

71. It is true that those provisions do not lay down the procedural rules governing such a hearing. Those rules, as recital 19 in the preamble to Regulation No 2201/2003 states, continue to be determined by each Member State in accordance with the principle of procedural autonomy. In my view, this does not mean, however, that the question whether the fundamental rights of the child were observed in the implementation of the condition laid down in Article 42(2)(a) of that regulation should be assessed in the light of the public policy of each Member State.

72. An examination of the various articles of Regulation No 2201/2003 which make provision for that hearing shows that only Article 23 expressly refers to the public policy of the Member State of enforcement. That article provides that a judgment relating to parental responsibility is not to be recognised if it was given, except in case of urgency, without the child having been given an opportunity to be heard, ‘in violation of fundamental principles of procedure of the Member State in which recognition is sought’.

73. No such reference exists, however, in Article 42(2)(a) of Regulation No 2201/2003, or for that matter in the other two aforementioned articles. As I see it, that difference of wording shows that compliance with the condition laid down in that provision, to the effect that the child must have been given an opportunity to be heard, does not depend on observance of the fundamental rights of the child as provided for in the legal system of the Member State of enforcement. Whether the requirement set out in Article 42(2)(a) of Regulation No 2201/2003 is satisfied is not dependent on the condition that the child must have had an opportunity to be heard in accordance with the fundamental law of the Member State to which the child has been wrongfully removed or where the child is wrongfully retained.

74. It is settled case-law that a provision of Community law which makes no express reference to the legal system of the Member States for the purpose of determining its meaning and scope must be given an autonomous interpretation. ( ) The Court has already applied that case-law in connection with Regulation No 2201/2003, in relation to the meaning of ‘civil matters’ in Article 1(1) ( ) and the meaning of ‘habitual residence’ in Article 8(1). ( )

75. Moreover, the autonomous nature of the content of the condition laid down in Article 42(2)(a) of Regulation No 2201/2003 is also confirmed, in my view, by the procedural autonomy of the enforceability of a judgment ordering the return of a child following a judgment of non-return. ( ) In order to ensure the effective and expeditious return of the child, such a judgment under Article 11(8) of that regulation is enforceable in accordance with Chapter III, Section 4, of that regulation, in other words it is recognised and enforceable in the Member State to which the child has been removed or in which it is wrongfully retained, without there being any need for a declaration of such enforceability in that State or any possibility of opposing its recognition. ( )

76. Regulation No 2201/2003 thus differs from the 1980 Hague Convention, Article 20 of which provides that the return of the child may be refused if it would not be permitted by the fundamental principles of the requested State. The ‘added value’ of Regulation No 2201/2003 in relation to that convention is therefore that it provides a way out of the deadlocks that may be created by divergent assessments of the child’s best interests where that assessment is carried out by the court of origin and by the requested court in the light of their own fundamental rights.

77. The effectiveness of that regulation would therefore be compromised if the court of the Member State of origin had to verify compliance with the conditions for issuing the certificate conferring such specific enforceability on its judgment in the light of the fundamental rights of the Member State to which the child has been wrongfully removed or in which it is wrongfully retained.

78. It follows, in my view, that the fundamental right of the child to be heard, as implemented in Article 42 of Regulation No 2201/2003, must have an autonomous content. In the present case, this means that the question whether Article 42(2)(a) of that regulation was observed must be assessed in the light not of the requirements of German fundamental law but of the content of that condition as it must be uniformly understood by all the Member States, in accordance with the interpretation given by the Court. I would point out in this regard that the German Government takes the same view.

b) The content of the right to be heard

79. Article 42(2)(a) of Regulation No 2201/2003 provides that the court of the Member State of origin may certify its judgment ordering the return of the child following a judgment of non-return only if ‘the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity’.

80. It is clear from the wording of that provision, read in the light of Article 24(1) of the Charter of Fundamental Rights, that the child to whom a judgment of non-return given on the basis of Article 11(8) of Regulation No 2201/2003 relates must have been given an opportunity to express his or her views freely on that return. In the field of child abduction, that article reflects contemporaneous changes in international and European law to the effect that the opinions of children capable of forming their own views must now be taken into consideration in decisions which concern them. ( )

81. The wording of that fundamental right as implemented in Article 42(2)(a) of Regulation No 2201/2003 is instructive in a number of slightly more specific respects. It should be emphasised at the outset that that fundamental right must help protect the child’s best interests.

82. In the context of the provisions of Regulation No 2201/2003 which are applicable in cases where a child is wrongfully removed or retained, the child’s best interests are, in principle, served by expeditious return to his or her original place of residence because the wrongful act committed against the child adversely affects his or her fundamental right to maintain direct and personal relations with both parents. ( ) Consequently, the only possible exception to return arises where return is itself contrary to the child’s interests.

83. The purpose of the right conferred on the child by Article 42(2)(a) of Regulation No 2201/2003 is therefore to enable the child to take part in the decision-making process that will lead to the final judgment on his or her return, although such participation must not itself be contrary to the child’s own interests. In my view, the tension between those rights and those interests gives rise to the following conclusions.

84. First, Article 42(2)(a) of Regulation No 2201/2003 establishes a right which may be derogated from only on the ground referred to in that provision, that is to say where the hearing is ‘inappropriate’ having regard to the child’s age or degree of maturity. It is interesting to note that the text uses the word ‘inappropriate’ and does not refer to any medically-established objective state of physical incapacity. Such inappropriateness therefore refers to an assessment by the court of the child’s ability to express a personal opinion. The principle which must inform that assessment is that any child capable of forming his or her own views must have been given the opportunity to express those views. However, it does not seem unreasonable to assume that, below a certain age, a child is not capable of expressing a personal opinion which is to be taken into consideration. ( )

85. In this case, there is no difference in the assessments made by court of the Member State of enforcement and the court of the Member State of origin as to Andrea’s capacity to be heard, since the latter court had summoned her to attend a hearing.

86. Next, Article 42(2)(a) of Regulation No 2201/2003 establishes the right of a child to have been given an opportunity to be heard. It does not provide that the child must have been heard. As I see it, that wording has two consequences. First, a child sufficiently capable of forming his or her own views must have been informed that he or she is entitled to express his or her opinion freely. In so far as the hearing of a child, in particular a young child, depends in practice on the cooperation of the parent who has wrongfully removed or retained the child, the Member States must provide the court with the means to overcome any obstacles which that parent may place in the way of the child being heard.

87. Secondly, that wording implies that the child is also entitled not to express any views. The child must not be forced to choose between the parent who has wrongfully removed or retained him or her and the other parent. Nor must the child be put in a position which might give him or her the impression that he or she is alone responsible for the decision on his/her return and, therefore, for any suffering which that decision may cause to one of his or her parents. The conditions under which the child’s views are obtained must be suited to the circumstances, as well as to the child’s age and maturity, so as to ensure that this does not represent a traumatic experience for him or her. ( ) In my opinion, a national court should thus be able to arrange for the child to be heard by a competent person in an appropriate setting where it considers it inappropriate to conduct the hearing itself. The Juzgado de Primera Instancia e Instrucción No 5 de Bilbao was also entitled, in my opinion, to consider that, in the context of this case, the hearing of a child as young as Andrea by videoconference was inappropriate.

88. It is in the light of those conditions that the court of the Member State of origin must verify, before certifying its judgment under Article 42 of Regulation No 2201/2003, that the child was given an opportunity to be heard within the meaning of paragraph 2(a) of that article.

c) The child’s opinion is not binding on the court of the Member State of origin

89. Finally, the opinion expressed by the child at the hearing is not binding on the court of the Member State of origin, which has jurisdiction to deliver a judgment under Article 11(8) of Regulation No 2201/2003. In the 1980 Hague Convention, the child’s objection to being returned is expressly cited, in Article 13, as one of the grounds capable of justifying a judgment of non-return, ( ) although it is not binding on the court of the Member State of enforcement. Regulation No 2201/2003 does not include that provision when conferring on the court of the Member State of origin the power to give a ruling following such a judgment.

90. Article 42(2)(c) of Regulation No 2201/2003 simply provides that the court of the Member State of origin which orders the child’s return in such circumstances must certify that, in giving its judgment, it has taken into account the reasons for and evidence underlying the judgment of non-return delivered by the court of the Member State of enforcement.

91. The wording of Regulation No 2201/2003, even more than that of the 1980 Hague Convention, therefore demonstrates that the child’s opinion is a factor which the court must take into account in its assessment, but it is not binding.

92. Where, as in this case, the child stated that she objected to being returned at the hearing before the court of the Member State of enforcement and that court, exercising its absolute discretion, has taken the view that it must deliver a judgment of non-return, that opinion must indeed be taken into account by the court of the Member State of origin in its final judgment but it is not binding on the latter court.

93. Nor does it compel that court itself to hear the child again before delivering the final judgment, as I shall now demonstrate in the second part of my analysis, which is concerned with the system under Regulation No 2201/2003.

2. The system under Regulation No 2201/2003

94. By way of preface, it must be pointed out that Article 42(2)(a) of Regulation No 2201/2003 does not provide that the court of the Member State of origin must itself hear the child. It simply requires that the child must have been given an opportunity to be heard. That condition may therefore be satisfied where the child was heard by the judicial authorities of another Member State, as is confirmed by recital 20 in the preamble to that regulation, which states that the hearing of a child in another Member State may take place under the arrangements laid down in Regulation No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

95. Where the child concerned has been heard by the judicial authorities of the Member State of enforcement not at the request of the court of the Member State of origin under Regulation No 1206/2001 but in the course of proceedings which led to a judgment of non-return, I do not consider, having regard to the system provided for by Regulation No 2201/2003, that the court of the Member State of origin has an obligation under Article 42(2)(a) of that regulation to conduct a new hearing.

96. The main characteristic of the system provided for by the aforementioned regulation in the event of a child’s abduction lies in the fact that the proceedings before the court of the Member State of enforcement which led to a judgment of non-return and those before the court of the Member State of origin required to deliver the final judgment on that return are not separate, competing proceedings. They are the complementary components of one and the same set of proceedings, which concern the situation of a child whose parents are in dispute over custody and in which two courts in different Member States have an overriding duty under Regulation No 2201/2003 to work together to find the solution best suited to safeguarding that child’s interests.

97. Under that system, where the parent of a child wrongfully removed to or retained in another Member State has applied for the child to be returned, the court of the Member State of enforcement and the court of the Member State of origin are each in turn faced with the same question: whether there is a legitimate and compelling reason precluding the return of that child. As the Court held in Povse, under that system, the issue of the return of the child is examined twice, thereby ensuring that the judgment is more soundly based and that the interests of the child have increased protection. ( )

98. The mutual trust and recognition which govern Regulation No 2201/2003 are accordingly intended to create, in the European judicial area, a system which resembles so far as possible the situation which pertains within a single Member State when one parent refuses to accept provisional measures relating to the custody of a common child. In a purely domestic legal context, how the courts deal with such a refusal is by incidental proceedings attached to the principal divorce proceedings.

99. To my mind, that is why, in providing that the child must have been given an opportunity to be heard, both in Article 11(2) of Regulation No 2201/2003 and then in Article 42(2)(a) of the same regulation, the Community legislature did not wish to make the hearing of the child a formal requirement which must compulsorily be observed at each stage of the proceedings relating to the child’s return. It sought to ensure that the child involved in such proceedings must actually have been given an opportunity to express his or her views in the course of the proceedings as a whole, starting from the stage initiated in the requested Member State. It did not stipulate that the child should systematically be heard again by the court of the Member State of origin required to deliver a judgment on the basis of Article 11(8) of Regulation No 2201/2003.

100. That court must be able to rely on the hearing conducted by the court of the Member State of enforcement where it provides it with the information necessary for its own judgment.

101. I base my analysis, first, on Article 11(6) of Regulation No 2201/2003, under which all the information obtained by the court of the Member State of enforcement as a basis for its decision to make an order of non-return, in particular the transcripts of the hearings before that court, must be transmitted to the court of the Member State of origin, which has jurisdiction to deliver the final judgment on return. ( )

102. My analysis is based, secondly, on the fact that, under Article 42(2)(c) of Regulation No 2201/2003, the court of the Member State of origin must take into account the reasons for and evidence underlying the non-return order issued by the court of the requested Member State.

103. The transcript of the hearing of the child which the court of the Member State of enforcement was required to conduct in the course of the proceedings which led to a judgment of non-return is therefore an integral part of the information which must be forwarded to the court of the Member State of origin with territorial jurisdiction and which that court is obliged to take into account.

104. Finally, I consider my analysis to be borne out by the requirement of rapid action which governs these proceedings. In the context of the return of a child who has been wrongfully removed or retained, it is generally the case that the child has not yet had time to become fully integrated into his or her new environment. That is why Regulation No 2201/2003 requires courts to which an application for return to act expeditiously in giving a ruling, using the most expeditious procedures available in national law and within a maximum of six weeks of the application being lodged. ( ) Logically, that the requirement of rapid action is also incumbent on the court of the Member State of origin required to deliver the final decision on return.

105. It is true that the latter court may consider it useful or appropriate to hear the child again before delivering its final judgment. I note that, in this case, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao, following the judgment of non-return delivered by the Amtsgericht Celle, summoned the child and her mother to a hearing in Spain.

106. However, the fact that, following the non‑appearance of Andrea and her mother, it gave its final judgment ordering that the child be returned without having heard her via video conference and without having attempted to arrange a hearing in Germany, either by going there itself or instructing the German judicial authorities to conduct such a hearing, falls within its absolute discretion and cannot be regarded as an infringement of the child’s fundamental right to have been given an opportunity to be heard.

107. Nor do I see any justification for a different conclusion in the fact that, in its judgment of 16 December 2009, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao did not simply order that Andrea be returned but gave a ruling on custody, which it awarded to the father.

108. Regulation No 2201/2003, as the Court explained in Povse, allows the court of the Member State of origin to order the child’s return following a judgment of non-return without having to give a ruling first on the permanent custody of the child. ( ) However, it also allows it to combine the two by giving a final ruling on rights of custody in respect of the child, as is clear from Article 11(7) of the regulation, with the result that the judgment on the return of the child then appears to be the consequence of that award.

109. That approach has the advantage of ensuring that the child is not to-ing and fro-ing between the States concerned if the court of the Member State of origin considers that custody must ultimately be awarded to the parent who wrongfully removed or retained the child. It presupposes, however, that the court has sufficient information to enable it to give a ruling on custody, including the hearing of the child where the latter is sufficiently capable of forming his or her own views.

110. Unlike the German Government and the Commission, I do not consider that, in these circumstances, the hearing of the child conducted by the court of the Member State of enforcement in the course of the proceedings which led to a judgment of non-return is necessarily insufficient to justify the conclusion that the child’s right to be heard was observed because its subject‑matter is much more restricted, being confined to the issue of return.

111. The question of return and the question of final rights of custody are not unconnected. This is particularly true in the present case, given that Andrea has stated that she objects to returning to Spain, which implies that she will be all the more opposed to the idea of her custody being awarded to her father. Whether or not the court of the Member State of origin may take the view that the child has been given an opportunity to be heard on the issue of the award of his or her custody therefore depends on the circumstances and the content of the hearing of that child conducted in the Member State of enforcement. In my view, it is important in such matters to leave to the national court the power to assess whether that hearing provides it with the information to enable it to give a ruling on final rights of custody in respect of the child in its judgment on the basis of Article 11(8) of Regulation No 2201/2003.

112. It should be added that, as the Spanish Government stated at the hearing, a decision on the custody of a child, such as that of the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao of 16 December 2009, is said to be ‘final’ only to distinguish it from the provisional measures adopted during the divorce proceedings, and that, in principle, such a decision is always open to review, either in the event of an agreement between the parents or if new information comes to light.

113. Finally, the Commission submits that, in this case, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao could not legitimately consider that the condition laid down in Article 42(2)(a) of Regulation No 2201/2003 was satisfied because of the time which had elapsed since the child’s hearing in Germany, a period of almost nine months.

114. It is true that this may appear to be a long period of time in the context of return proceedings, but, once again, I fail to see what could have been gained from a further hearing of the child once she had stated that she objected to returning to Spain.

115. In the light of all those considerations, I therefore propose that the Court should rule that Article 42(2)(a) of Regulation No 2201/2003 must be interpreted as meaning that the condition laid down in that provision is satisfied where the child was heard by the judicial authorities of the Member State of enforcement in the course of the proceedings which led to a judgement of non-return and the court of the competent Member State took that hearing into consideration in its judgment ordering return delivered under Article 11(8) of the same regulation.

B – Examination of the questions referred for a preliminary ruling

116. Taking into account my position concerning the premiss underpinning the questions referred for a preliminary ruling by the Oberlandesgericht Celle, I shall examine those questions only in the alternative.

117. By those questions, which I propose to examine jointly, that court asks in essence whether Regulation No 2201/2003 must be interpreted as meaning that the court of the requested Member State may oppose the enforcement of a certified judgment ordering the return of a child following a judgment of non-return, where it appears that the child at issue, contrary to the information provided on the certificate issued under Article 42 of that regulation, was not given an opportunity to be heard, in breach of the provisions of that article and of the fundamental right set out in Article 24(1) of the Charter of Fundamental Rights.

118. In analysing this question, it must therefore be taken as read that the child to whom the judgment delivered under Article 11(8) of Regulation No 2201/2003 relates was not given an opportunity to be heard, contrary to the information provided on the certificate accompanying that judgment.

119. I am of the opinion, like the Commission and unlike the German Government, that, even in such circumstances, the court of the Member State of enforcement would not be entitled to oppose the enforcement of the judgment at issue. I base my view on the system provided for by Regulation No 2201/2003, as it has been interpreted by case-law.

120. As we have seen, that regulation, like the 1980 Hague Convention, starts from the assumption that the wrongful removal or retention of a child in breach of a judicial decision is seriously prejudicial to the interests of that child, so that the child must be returned to his or her original place of residence as quickly as possible.

121. We have also seen that the added value of the regulation in relation to the Convention is that it instituted a system under which, in the event of a difference of opinion between the court of the child’s habitual place of residence and the court of the place to which the child has been wrongfully removed, the former retains jurisdiction and has the last word, so to speak, in deciding whether or not the child must actually return to his or her original place of residence.

122. The jurisdiction of the court of the Member State of origin rests on the assumption that that court is best placed to make the final judgment on return because it can obtain from those close to the child and from everyone with whom the child was in contact all the information enabling it to assess whether there is a legitimate ground for opposing the child’s return.

123. The structure and the purpose of that system were very clearly explained by the Court in Povse, in answer to the question whether a judgment awarding provisional custody, delivered subsequently by a court of the Member State of enforcement and considered enforceable under the law of that State, precluded the enforcement of an earlier judgment ordering the return of the child delivered under Article 11(8) of Regulation No 2201/2003 and certified in accordance with Article 42 of that regulation.

124. The Court held as follows:

‘73 It follows from [Articles 42(1) and 43(1) and (2) of Regulation No 2201/2003], which establish a clear division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement and are intended to secure the rapid return of the child, that a certificate issued under Article 42 of [that] regulation, which gives to the judgment thus certified a specific enforceability, is not subject to any appeal. The requested court can do no more than declare such a judgment to be enforceable, since the only pleas in law which can be relied on in relation to the certificate are those to support an action for rectification or doubts as to its authenticity, according to the rules of law of the Member State of origin (see, to that effect, Rinau, paragraphs 85, 88 and 89). The only rules of law of the requested Member State that are applicable are those governing procedural matters.

74 On the other hand, questions concerning the merits of the judgment as such, and in particular the question whether the necessary conditions enabling the court with jurisdiction to hand down that judgment are satisfied, including any challenges to its jurisdiction, must be raised before the courts of the Member State of origin, in accordance with the rules of its legal system. Likewise, an application to suspend enforcement of a certified judgment can be brought only before the court which has jurisdiction in the Member State of origin, in accordance with the rules of its legal system.

75 Accordingly, no plea in law can be raised before the courts of the Member State of removal challenging the enforcement of such a judgment, since the rules of law of that State govern solely matters of procedure, as provided for in Article 47(1) of the [aforementioned] regulation, namely the arrangements for enforcement of the judgment. However, proceedings such as those which are the subject of this question are concerned neither with formal requirements nor matters of procedure, but rule on matters of substance.

76 Consequently, the question whether a certified judgment is irreconcilable, within the meaning of the second subparagraph of Article 47(2) of [Regulation No 2201/2003], with a subsequent enforceable judgment must be addressed only in relation to any judgments subsequently handed down by the courts with jurisdiction in the Member State of origin.’

125. In brief, the court of the Member State of enforcement cannot therefore oppose the enforcement of a certified judgment delivered on the basis of Article 11(8) of Regulation No 2201/2003.

126. I am of the opinion that the foregoing interpretation of that regulation must also apply in the exceptional case where the certificate was wrongly drawn up in the sense that the child was not given an opportunity to be heard.

127. In Regulation No 2201/2003 the Community legislature drew on the lessons learned from the shortcomings of the system provided for in the 1980 Hague Convention, in which differences of opinion between the courts of the Contracting States as to the best interests of the child, where those interests were measured in the light of the public policy of each State, had the effect of legalising the abduction of the child.

128. It therefore provided, on the one hand, that, under Regulation No 2201/2003, those fundamental rights were to have an autonomous content which would be uniform in all the Member States, namely that established in the Charter of Fundamental Rights. It considered, on the other hand, that the level of mutual trust between the Member States in the capacity of the courts of the other Member States to ensure genuine protection for those rights made it possible to take that logic to its ultimate conclusion and confer on the final judgment delivered by the court with territorial jurisdiction a specific enforceability which cannot be challenged in the other Member States.

129. In this connection, it is sufficient to compare the wording of the provisions of Section 4 of Chapter III of Regulation No 2201/2003, which establish that specific enforceability, with those of the articles in Council Framework Decision 2002/584/JHA ( ) on the European arrest warrant. That framework decision explicitly provides that surrender of the person forming the subject of a European arrest warrant must be based on a decision given by a court of the Member State of execution and lists the grounds on which that court may or must oppose surrender. ( ) In the Framework Decision, the European Union legislature therefore sought to ensure that respect for fundamental rights would be the subject of dual review, by the courts of the requesting Member State and by those of the requested Member State.

130. In Regulation No 2201/2003, on the other hand, the Community legislature went a step further in favour of mutual recognition, since it did not provide for such dual review. However, that additional step must not have the consequence of lesser protection for the fundamental rights of the child. We have seen that, in recital 33 in the preamble to that regulation, the Community legislature underscored the importance of respecting those rights. It considered, however, that those rights could be safeguarded by the courts of the Member State of origin.

131. It therefore falls to the parent who considers that the judgment ordering the return of the child was delivered without the child having been given an opportunity to be heard, in breach of the child’s fundamental rights, and, therefore, that the certificate was incorrect, to challenge that judgment before the competent court of the Member State of origin, although the exercise of such a remedy may not, as such, justify a suspension of enforcement of that judgment in the Member State of enforcement.

132. The German Government asks the Court to extend its reasoning by considering the situation in which the competent courts of the requested Member State have failed to fulfil their obligations and have not reversed a judgment vitiated by a manifest breach of fundamental rights.

133. The German Government thus submits that the court of the requested Member State should be able to oppose the enforcement of such a judgment where proceedings before the courts of the Member State of origin have failed although the fundamental rights of the child have manifestly been disregarded. The German Government maintains that, in such circumstances, Regulation No 2201/2003 cannot require the enforcement of a judgment which manifestly infringes fundamental rights. It bases its argument on the fact that, in this case, the appeal lodged by Andrea’s mother in Spain against the judgment of 16 December 2009 was unsuccessful.

134. I take the view that this case does not require that any position be taken on such a situation. For one thing, if the Court concurs with my analysis on the premiss underpinning the questions referred for a preliminary ruling, the child’s fundamental right to be heard has not been manifestly infringed. That right was observed. Further, the Spanish Government, at the hearing, challenged the claim that the child’s mother had exhausted all the remedies available to her in Spain. The Spanish Government argued that, in its domestic legal system, there exists a legal remedy specifically provided when a party claims an infringement of his or her fundamental rights. The situation referred to by the German Government does not therefore arise in this case.

135. In that regard, I am of the view that the existence, in the legal system of the Member State of origin, of legal remedies (as there are in this case) intended to permit the parties concerned to challenge the merits of a judgment certified pursuant to Article 42 of Regulation No 2201/2003 and, therefore, to challenge whether fundamental rights have been respected by the court handing down that judgment, is the essential counterpart of the fact that there is no possibility of challenging such a judgment in the Member State of enforcement.

136. In any event, the situation described by the German Government does not arise. It is for the national courts to apply European Union law in accordance with fundamental rights and, in the event of any doubt as to the scope of those rights, to refer questions on them to the Court under the preliminary ruling procedure. It is also for the Member States to make provision, in their legal system, for adequate remedies to ensure that those rights are effectively observed. Finally, compliance with those obligations is subject to review by the Commission, which may, inter alia, institute infringement proceedings against a Member State if its courts, and in particular its supreme court, were to fail to fulfil those obligations. ( )

137. This case does not raise any doubts as to the capacity of the legal system of each Member State to ensure that Regulation No 2201/2003 is applied in a manner which respects the fundamental rights of the child.

138. On the contrary, it demonstrates that conferring a right of opposition on the courts of the Member State of enforcement would recreate the possibility of blocking or unjustifiably delaying the enforcement of judgments ordering the return of a child delivered on the basis of Article 11(8) of Regulation No 2201/2003. As I have already stated, in the specific and very distressing matter of child abductions, every month’s delay in enforcing a return order makes return more difficult and thus exacerbates the situation. The effectiveness of Regulation No 2201/2003 would therefore be undermined if the enforcement of such a judgment could be challenged in one way or another before the judicial authorities of the Member State of enforcement and thus depended on the outcome of proceedings before those courts.

139. In the light of those considerations, I propose that the Court should supplement the previous answer by adding that, even if the child has not been given an opportunity to be heard, contrary to the information provided on the certificate issued under Article 42 of Regulation No 2201/2003 and in breach of the provisions of that article and of the fundamental right under Article 24(1) of the Charter of Fundamental Rights, that regulation must be interpreted as meaning that the court of the requested Member State may not oppose the enforcement of a certified judgment ordering the return of a child delivered on the basis of Article 11(8) of that regulation.

IV – Conclusion

140. In the light of the foregoing considerations, I propose that the questions referred by the Oberlandesgericht Celle should be answered as follows:

Article 42(2)(a) 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, must be interpreted as meaning that the condition laid down in that provision is satisfied where the child was heard by the judicial authorities of the Member State of enforcement in the course of the proceedings which led to a judgement of non-return and the court of the competent Member State took that hearing into consideration in its judgment ordering return delivered under Article 11(8) of the same regulation.

Even if the child has not been given an opportunity to be heard, contrary to the information provided on the certificate issued under Article 42 of Regulation No 2201/2003 and in breach of the provisions of that article and of the fundamental right under Article 24(1) of the Charter of Fundamental Rights of the European Union, that regulation must be interpreted as meaning that the court of the requested Member State may not oppose the enforcement of a certified judgment ordering the return of a child delivered on the basis of Article 11(8) of that regulation.

VIEW OF ADVOCATE GENERAL

BOT

delivered on 7 December 2010 1( )

Case C‑491/10 PPU

Joseba Andoni Aguirre Zarraga

v

Simone Pelz

(Reference for a preliminary ruling from the Oberlandesgericht Celle (Germany))

(Urgent preliminary ruling procedure – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Provisional rights of custody – Child abduction – Certified judgment ordering the return of a child following a judgment of non‑return – Conditions for the issue of the certificate – Child’s opportunity to be heard – Charter of Fundamental Rights – Hearing of the child by the judicial authorities of the Member State of enforcement in the proceedings which led to the judgment of non-return – Power of the court of the Member State of enforcement to oppose the enforcement of a judgment ordering the return of the child delivered following a judgment of non-return)

1. Disputes between a divorcing couple over the future of their common children can be a distressing not to say traumatising ordeal for the children concerned. That ordeal can be all the more difficult where, in the case of a mixed couple, one of the parents, who does not accept the measures taken in respect of the children by the court of the Member State where the couple resided, takes the children to his or her country of origin and endeavours to obtain a contrary judgment from the courts of that State. If that parent is successful, the children’s situation is then governed by contradictory judicial decisions, the most common outcome of which being that all normal relations with the other parent are broken off, in some cases for a long period of time.

2. The seriousness of the damage caused to children by such conduct prompted States, initially by way of agreement, in the form of the Hague Convention of 25 October 1980, ( ) and then, within the European Union, by way of agreement and subsequently by way of regulation, to establish systems of cooperation between the courts of different States which are intended to ensure that, where a child is wrongly removed or retained by one of its parents, the child is returned as quickly as possible to the place where he or she was living before his/her abduction.

3. Council Regulation (EC) No 2201/2003, ( ) relevant in this case, thus provides for a system whereby, in cases where the court of the Member State to which the child has been wrongfully removed delivers a judgment opposing the child’s return, the court of the child’s place of residence has the last word, so to speak, and may order the child’s return by judgment which is enforceable by operation of law and which is not open to challenge in the other Member States.

4. That enhanced enforceability is dependent on the issue by the court which delivered that judgment of a certificate stating, in particular, that the child has been given an opportunity to be heard, unless that is not possible because of the age or maturity of the child, and that that court has taken account of the evidence underlying the judgment of non-return delivered by the court of the place to which the child was unlawfully removed.

5. The enforcement of judgments certified in this way has already given rise to a number of problems of interpretation which have enabled the Court to confirm and clarify the scope of their specific enforceability. ( ) Thus, in Povse, cited above, it held that, under the division of jurisdiction between the court of the Member State of origin and the court of the Member State of enforcement, the latter can do no more than declare a certified judgment to be enforceable, since challenges to the certificate may be raised only in the courts of the Member State of origin. ( )

6. In this case, the referring court seeks to ascertain whether, despite the specific enforceability of a certified judgment, it can oppose the enforcement of that judgment in the event of a particularly serious infringement of a fundamental right of the child, where the child has not been heard, in breach of the provisions of Regulation No 2201/2003 interpreted in accordance with the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’). In the alternative, it asks to what extent it is required to enforce such a judgment where the certificate accompanying it contains a manifestly inaccurate declaration as to the hearing of the child.

7. The referring court also pointed out that it was not requesting application of the urgent preliminary ruling procedure on the ground that its two questions were fundamental and that they had to be examined as part of a comprehensive preliminary ruling procedure.

8. The Court, in accordance with the power conferred on it by the third and last subparagraphs of Article 104(b)(1) of its Rules of Procedure, took the view, however, that the conditions for the application of the urgent procedure were met and decided to deal with this case under that procedure.

9. In this View, before examining the questions referred for a preliminary ruling, I shall propose that the Court rule on the merits of the premiss on which those questions are based. Those questions are founded on the premiss that the child was not given an opportunity to be heard, contrary to what is stated on the certificate accompanying the judgment ordering her return, and that the court of the Member State of origin did not therefore comply with the conditions governing the issue of such a certificate.

10. However, while the documents before the Court do show that the child could not be heard by that court, they also show that she was heard at the request of the judicial authorities of the Member State of enforcement in the course of the proceedings which led to the judgment of non‑return, and that the view expressed by the child at that hearing was mentioned in the certified judgment at issue.

11. That is why, in this View, I shall propose that the Court should first of all examine the merits of the referring court’s premiss and thus give a ruling on whether, in such circumstances, the condition to the effect that a judgment ordering the return of the child may be certified only if the child has been given an opportunity to be heard has been satisfied.

12. I shall set out the reasons why, in my opinion, the view must be taken that that condition has indeed been satisfied.

13. I shall say next, and in the alternative, that, even assuming that that condition was not satisfied, a court of the requested Member State may not oppose the enforcement of a certified judgment. I shall reiterate that, because of the strict separation of jurisdiction between the courts of the Member State concerned, challenges to such a judgment and to a certificate issued under Article 42 of Regulation No 2201/2003 fall within the exclusive jurisdiction of the courts of the Member State of origin.

I – Legal framework

14. The relevant texts are the 1980 Hague Convention, Regulation No 2201/2003 and the Charter of Fundamental Rights.

15. The 1980 Hague Convention, which entered into force on 1 December 1983, was ratified by all the Member States. It continues to apply between them but its provisions are supplemented by those of Regulation No 2201/2003. In relations between the Member States, the provisions of the Regulation take precedence over those of the Convention. ( )

A – The 1980 Hague Convention

16. The 1980 Hague Convention starts from the assumption that any forced removal of a minor from his or her habitual place of residence without the consent of the person having custody is seriously prejudicial to the interests of the child and constitutes unlawful conduct which must be brought to an end as quickly as possible, without examination of the substance of the dispute between the parents.

17. Under Article 1, the objects of that convention are thus to ensure that rights of custody in one Contracting State are effectively respected in the other Contracting States and to secure the prompt return to the former Contracting State of a child wrongfully removed or retained.

18. Under Article 3 of that convention, removal is considered to be wrongful where it is in breach of rights of custody attributed to a person by law or by a judicial decision of the State in which the child was habitually resident immediately before the removal.

19. In all matters of custody, ‘the interests of the child’ are paramount. The child is entitled to stability, to be able to remain in his or her habitual place of residence, this being regarded as one of the essential foundations of the child’s equilibrium and development. The child is not an object that the parents can use as a tool in the event of disputes between them.

20. In those circumstances, where a child is found to have been wrongfully removed, an order is made for the child’s immediate return to his or her place of habitual residence. The return order is therefore dissociated from the award of custody, which the court of the place of habitual residence is best placed to assess.

21. Article 12 of the 1980 Hague Convention provides:

‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

…’

22. However, the authors of that convention wished to temper the virtually automatic return mechanism by means of exceptions which allow account to be taken of the child’s interests and the circumstances. Article 13 of the Convention thus provides that the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

– the parent having custody was not actually exercising the custody rights at the time of removal, or had consented to or subsequently acquiesced in that removal; or

– there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

– the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

23. Under Article 4, the 1980 Hague Convention is to cease to apply when the child attains the age of 16 years. Moreover, in accordance with Article 20 of the Convention, the return of the child under the provisions of Article 12 of the Convention may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

B – Regulation No 2201/2003

24. Regulation No 2201/2003, like the 1980 Hague Convention, seeks to discourage the abduction of children by ensuring that a child who has been abducted is expeditiously returned to the Member State of origin. The context of that regulation is the area of freedom, security and justice, which, as recital 2 in its preamble points out, has as its cornerstone the mutual recognition of judicial decisions.

25. To that end, the aim of Community legislature was to establish the following system:

– the courts of the Member State of origin retain jurisdiction. The wrongful removal of the child does not in itself lead to a transfer of jurisdiction;

– the courts of the requested Member State must ensure the expeditious return of the child;

– if the court of the requested Member State decides not to order the return of the child, it must forward its judgment and the evidence underlying it to the competent court of the Member State of origin and the two courts must cooperate;

– if the court of the Member State of origin orders the return of the child, its judgment, if certified by that court, is enforceable by operation of law in the requested Member State and cannot be challenged in that State.

26. Recital 17 in the preamble to Regulation No 2201/2003 is worded as follows:

‘In cases of 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] would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.’

27. According to recital 21 in the preamble to that regulation, ‘the recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required’.

28. According to recital 23 in the preamble to that regulation, ‘judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this Regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law’. Recital 24 in the preamble to Regulation No 2201/2003 goes on to say that ‘the certificate issued to facilitate enforcement of the judgment should not be subject to appeal. It should be rectified only where there is a material error, i.e. where it does not correctly reflect the judgment’.

29. That regulation also recognises the importance of hearing the child. According to recital 19 in its preamble, ‘the hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable’.

30. According to recital 20 in the preamble to the aforementioned regulation, ‘[t]he hearing of a child in another Member State may take place under the arrangements laid down in Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters’. ( )

31. Finally, recital 33 in the preamble to Regulation No 2201/2003 states that ‘[t]his Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights … . In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union …’

32. The various intentions of the legislature are implemented in the following way in the articles of Regulation No 2201/2003.

33. Under Article 2(11) of that regulation, which essentially contains the same definition as the 1980 Hague Convention, there is ‘wrongful removal or retention’ where a child’s removal or retention is in breach of rights of custody acquired by judgment under the law of the Member State where the child was habitually resident immediately before the removal or retention, provided that the rights of custody were actually exercised.

34. Article 11 of that regulation, entitled ‘Return of the child’, provides:

‘1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the [1980 Hague Convention] in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given an opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

…

6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately, either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time-limit.

8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.’

35. Article 42 of Regulation No 2201/2003, which forms part of Section 4 of Chapter III, provides:

‘1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment ordering the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.

2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:

(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;

(b) the parties were given an opportunity to be heard; and

(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.

In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.

The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)).

The certificate shall be completed in the language of the judgment.’

36. Under Article 47(2) of Regulation No 2201/2003, ‘[a]ny judgment delivered by a court of another Member State and declared to be enforceable … or certified in accordance with … Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State’.

C – The Charter of Fundamental Rights

37. The Charter of Fundamental Rights, which, under Article 6 TEU, has the same binding force as the treaties, sets out the rights of the child in the following terms in Article 24:

‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

38. The facts giving rise to the dispute in the main proceedings, as presented by the referring court, may be summarised as follows.

39. Joseba Andoni Aguirre Zarraga and Simone Pelz were married on 25 September 1998 in Erandio (Spain). Their daughter from the marriage, Andrea, was born on 31 January 2000. The parents’ family home was in Sondka (Spain).

40. The parents separated at the end of 2007. They each instituted divorce proceedings and applied for the award of sole custody of Andrea.

41. By decision of 12 May 2008, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao (Court of First Instance and Preliminary Investigations No 5, Bilbao) (Biscaya, Spain) awarded provisional rights of custody in respect of Andrea to her father. Andrea then went to her father’s home. In June 2008, Andrea’s mother moved to Germany. At the end of the 2008 summer holidays, during which Andrea had gone to visit her mother, the mother kept her daughter with her. Since 15 August 2008, Andrea has therefore lived in her mother’s home in Germany. On the same day, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao made an order prohibiting Andrea from leaving Spanish territory.

42. Andrea’s father then applied to have his daughter returned to Spain under the 1980 Hague Convention. That application was dismissed by order of 1 July 2009, on the basis of the second paragraph of Article 13 of that convention. The hearing conducted at that time showed that Andrea was resolutely and categorically opposed to her return to Spain. The expert instructed by the court following that hearing concluded that Andrea’s views should be taken into account in the light of both her age and her maturity.

43. The Bundesamt für Justiz (German Federal Office of Justice) sent that order to the Spanish central authority by letter of 8 July 2009.

44. During the same month, the custody proceedings were continued before the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao. That court considered that a fresh expert opinion should be obtained and that Andrea should be heard in person, and set dates for both in Bilbao. Neither Andrea nor her mother attended when called to do so. The Spanish court rejected the earlier application by Andrea’s mother for permission for herself and Andrea to leave Spain freely once the expert opinion had been obtained and Andrea had been heard. Nor did it grant the mother’s express request that Andrea’s hearing be conducted via video conference.

45. By judgment of 16 December 2009, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao awarded sole custody of the child to the father.

46. Andrea’s mother lodged an appeal against that judgment on the ground in particular that Andrea should be heard. By order of 21 April 2010, the Audiencia Provincial de Vizcaya (Regional Court, Biskaya) dismissed that request for the arrangement of a hearing for the child.

47. On 5 February 2010, the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao certified the judgment of 16 December 2009 in accordance with Article 42 of Regulation No 2201/2003.

48. For her part, the child’s mother made an application asking [the German court] not to make an order for enforcement and not to recognise that judgment.

49. By order of