Case C-191/08: Action brought on 7 May 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-05-07
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, foreign national, national implementing measure, right of asylum, stateless person

5.7.2008

EN

Official Journal of the European Union

C 171/27

Pleas in law and main arguments

The period prescribed for transposing the directive into national
law expired on 10 October 2006.

Reference for a preliminary ruling from the Lietuvos
Aukščiausiasis Teismas (Republic of Lithuania) lodged on
14 May 2008 — Inga Rinau

(1) OJ 2004 L 304, p. 12.

(Case C-195/08)

(2008/C 171/42)

Language of the case: Lithuanian

Action brought on 7 May 2008 — Commission of the
European Communities v Portuguese Republic

Referring court

Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania)

(Case C-191/08)

(2008/C 171/41)

Language of the case: Portuguese

Parties to the main proceedings

Appellant: Inga Rinau

Third party: Michael Rinau

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Condou-Durande and A. Caeiros, agents, acting as
Agents)

Questions referred

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2004/83/EC (1) of 29 April 2004 on minimum
standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of
the protection granted, the Portuguese Republic has failed to
fulfil
its obligations under Article 38(1) of Directive
2004/83/EC;

— in the alternative, declare that, by failing, in any event, to
inform the Commission of the adoption of such measures,
the Portuguese Republic has failed to fulfil
its obligations
under Article 38(1) of Directive 2004/83/EC;

— order Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2004/83/EC
into national law expired on 10 October 2006.

(1) OJ 2004 L 304, p. 12.

1. Can an interested party within the meaning of Article 21 of
Council Regulation (EC) No 2201/2003 (1) apply for non-
recognition of a judicial decision if no application has been
submitted for recognition of that decision?

2. If the answer to Question 1 is in the affirmative: how is a
national court, when examining an application for non-
recognition of a decision brought by a person against whom
that decision is to be enforced, to apply Article 31(1) of
Regulation No 2201/2003, which states that ‘… Neither the
person against whom enforcement is sought, nor the child
shall, at this stage of the proceedings, be entitled to make
any submissions on the application’?

3. Is the national court which has received an application by
the holder of parental responsibility for non-recognition of
that part of the decision of the court of the Member State of
origin requiring that that holder return to the State of origin
the child staying with that holder, and in respect of which
the certificate provided for
in Article 42 of Regulation
No 2201/2003 has been issued, required to examine that
application on the basis of
the provisions contained in
Sections 1 and 2 of Chapter III of Regulation No 2201/2003,
as provided for in Article 40(2) of that regulation?

4. What meaning is to be attached to the condition laid down
in Article 21(3) of Regulation No 2201/2003 (‘Without
prejudice to Section 4 of this Chapter’)?

5. Do the adoption of a decision that the child be returned and
the issue of a certificate under Article 42 of Regulation
No 2201/2003 in the court of the Member State of origin,
after a court of the Member State in which the child is being
unlawfully kept has taken a decision that
the child be
returned to his or her State of origin, comply with the objec-
tives of and procedures under Regulation No 2201/2003?