Case C-523/07: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 23 November 2007 — A
Date: 2007-11-23
Institutions: Court of Justice
Subjects: child protection, interpretation of the law, jurisdiction, matrimonial law, parental responsibility, public law, residence

26.1.2008

EN

Official Journal of the European Union

C 22/35

— give a final decision in the case and dismiss the application

Questions referred

as unfounded;

— order the applicant in the main proceedings to pay the costs
the

these appeal proceedings as well as the costs of

of
proceedings at first instance in Case T-196/02.

1.

Pleas in law and main arguments

The Court of First Instance erred in assuming that it was not
possible to make a decision on the basis of the available infor-
mation for the purpose of establishing the actual beneficiary of
the aid. Establishing the actual beneficiary is normally an inte-
gral part of Commission decisions ordering recovery of unlawful
aid. Making this determination is indeed necessary to ensure
efficient recovery of unlawful aid. Excluding the possibility of
establishing the actual beneficiary of aid on the basis of the
available information is thus not compatible with Article 13(1)
of Regulation (EC) No 659/1999.

Secondly, the Court was wrong to assume that the Commission
decision was based on a mere presumption which did not meet
the requirements of a decision on the basis of the available
information. On the one hand, where a decision is made on the
the information available no absolute certainty is
basis of
required. On the other, the Commission decision was based on
the information sent by SKL-M's insolvency administrator as to
the development costs of the know-how. The Commission thus
had sufficient evidence to allow it to conclude that the transfer
of the know-how to MTU represented an advantage for that
undertaking.

(a) Does Council Regulation (EC) No 2201/2003 (1)
concerning jurisdiction and the recognition and enforce-
judgments in matrimonial matters and the
ment of
matters of parental responsibility, repealing Regulation
(EC) No 1347/2000, (the Brussels IIa Regulation) apply
to the enforcement, such as in the present case, of a
public-law decision made in connection with child
protection,
the
immediate taking into care of a child and his or her
placement outside the home, in its entirety,

concerning

decision,

single

as

a

(b) or, having regard to the provision in Article 1(2)(d) of
the regulation, only to the part of the decision relating to
the placement outside the home?

2. How is the concept of habitual residence in Article 8(1) of
the regulation, like the associated Article 13(1), to be inter-
preted in Community law, bearing in mind in particular the
situation in which a child has a permanent residence in one
Member State but
is staying in another Member State,
carrying on a peripatetic life there?

3.

(a) If it is considered that the child's habitual residence is
not in the latter Member State, on what conditions may
an urgent measure (taking into care) nevertheless be
taken in that Member State on the basis of Article 20(1)
of the regulation?

Reference for a preliminary ruling from the Korkein
hallinto-oikeus (Finland) lodged on 23 November 2007 —
A

(b) Is

a protective measure within the meaning of
Article 20(1) of the regulation solely a measure which
can be taken under national law, and are the provisions
of national law concerning that measure binding when
the article is applied?

(Case C-523/07)

(2008/C 22/63)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: A

(c) Must the case, after the taking of the protective measure,
be transferred of the court's own motion to the court of
the Member State with jurisdiction?

4. If the court of a Member State has no jurisdiction at all,
must it dismiss the case as inadmissible or transfer it to the
court of the other Member State?

(1) OJ L 338, p. 1.