Case C-214/08 P: Appeal brought on 22 May 2008 by Philippe Guigard against the judgment of the Court of First Instance (Third Chamber) delivered on 11 March 2008 in Case T-301/05 Guigard v Commission
Date: 2008-05-22
Institutions: Court of Justice
Subjects: European Commission, action by staff, appeal, fourth Lomé Convention, personnel administration

30.8.2008

EN

Official Journal of the European Union

C 223/19

— in order to ascertain whether there are connections between the
requested person and the executing Member State which lead to
the conclusion that that person is covered by the term ‘staying’
within the meaning of Article 4(6), it is for the executing judicial
authority to make an overall assessment of various objective factors
characterising the situation of that person, including, in particular,
the length, nature and conditions of his presence and the family
and economic
connections which that person has with the
executing Member State.

(1) OJ C 107, 26.4.2008.

Judgment of the Court (Third Chamber) of 11 July 2008
(reference for a preliminary ruling from the Lietuvos
Aukščiausiasis Teismas, Republic of Lithuania) — Pro-
ceedings brought by Inga Rinau

(Case C-195/08 PPU) (1)

(Judicial cooperation in civil matters — Jurisdiction and enfor-
cement of judgments — Enforcement in matrimonial matters
and matters of parental responsibility — Regulation (EC)
No 2201/2003 — Application for non-recognition of a deci-
sion requiring the return of a child wrongfully retained in
ruling
another Member State — Urgent preliminary

procedure)

(2008/C 223/30)

Operative part of the judgment

1. Once a non-return decision has been taken and brought to the
attention of the court of origin, it is irrelevant, for the purposes of
issuing the certificate provided for in Article 42 of Council Regu-
lation (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, that that decision has
been suspended, overturned, set aside or,
in any event, has not
become res judicata or has been replaced by a decision ordering
return, in so far as the return of the child has not actually taken
place. Since no doubt has been expressed as regards the authenticity
of that certificate and since it was drawn up in accordance with the
standard form set out in Annex IV to the Regulation, opposition
to the recognition of the decision ordering return is not permitted
and it is for the requested court only to declare the enforceability of
the certified decision and to allow the immediate return of the
child.

2. Except where the procedure concerns a decision certified pursuant to
Articles 11(8) and 40 to 42 of Regulation No 2201/2003, any
interested party can apply for non-recognition of a judicial decision,
even if no application for recognition of
the decision has been
submitted beforehand.

3. Article 31(1) of Regulation No 2201/2003,

the person against whom enforcement

in so far as it
provides that neither
is
sought, nor the child is, at this stage of the proceedings, entitled to
make any submissions on the application,
is not applicable to
proceedings initiated for non-recognition of a judicial decision if no
application for recognition has been lodged beforehand in respect of
that decision. In such a situation, the defendant, who is seeking
recognition, is entitled to make such submissions.

Language of the case: Lithuanian

(1) OJ C 171, 5.7.2008.

Referring court

Lietuvos Aukščiausiasis Teismas, Lithuania

Party to the main proceedings

Inga Rinau

Re:

Reference for a preliminary ruling — Lietuvos Aukščiausiasis
Teismas — Interpretation of Articles 21, 23, 24, 31(1), 40(2)
and 42 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 (OJ 2003 L 338, p. 1) — Application for non-
recognition in Member State A of a decision delivered by a
court in Member State B ordering the return of a child, who is
regarded as being unlawfully held by her mother in Member
State A, to her father, who is resident in Member State B and
has been awarded custody of the child

Appeal brought on 22 May 2008 by Philippe Guigard
against the judgment of the Court of First Instance (Third
Chamber) delivered on 11 March 2008 in Case T-301/05
Guigard v Commission

(Case C-214/08 P)

(2008/C 223/31)

Language of the case: French

Parties

Appellant: Philippe Guigard (represented by: S. Rodrigues and
C. Bernard-Glanz)

Other party to the proceedings: Commission of
Communities

the European

C 223/20

EN

Official Journal of the European Union

30.8.2008

Form of order sought

— declare the appeal admissible;

— set aside the judgment of the Court of First Instance of the
European Communities of 11 March 2008 in Case
T-301/05;

— grant the application for annulment and damages made by

the applicant at first instance;

— order the defendant at first instance to pay all the costs of

the proceedings at first instance and on appeal.

Pleas in law and main arguments

The appellant puts forward essentially three pleas in support of
its appeal.

By its first plea, which consists of two parts, the appellant
claims, first of all, that the Court of First Instance incorrectly
interpreted the Fourth Lomé Convention (1).

The error consists, first, of the fact that the Court held that
under Article 313(2)(k) of the Lomé Convention it is for the
national authorising officer to decide on the hiring of consul-
tants and other technical assistance experts, without
taking
account of the power of budgetary control and administration
of funds afforded to the Commission by that convention and
the obligation on the latter institution to offer the national
authorising officer technical assistance in the negotiation of
contracts.

The error committed by the Court consists, second, of the fact
that it held that the request from the national authorising officer
to the Commission for approval of the decision to renew the
appellant's contract of employment must contain an explicit
reference to Article 314 of the Lomé Convention in order to
make the 30-day time-limit referred to therein start to run, even
though no such a requirement arises
from that article.
According to the appellant,
if the Court had correctly inter-
preted that article it should have held that the Commission did
not comply with that time-limit.

By its second plea, the appellant submits that the judgment
under appeal is vitiated by a clear contradiction in its reasoning
as the Court held that, as regards the plea alleging infringement
of Article 317(a) of the Lomé Convention, on one hand, that
plea was out of time and, on the other, that it was subsumed
within the plea alleging infringement of Article 313(2)(k) of the
convention. According to the appellant, the same plea cannot
be rejected as being both inadmissible and unfounded.

lastly, that the Court
By its third plea, the appellant claims,
infringed his rights of defence in that, first,
it failed to take
account of all the arguments that he put forward at the hearing
it misinterpreted the scope of his plea alleging
and, second,

infringement of the principles of care and sound administration
and the principle of protection of legitimate expectations.

(1) Fourth convention concluded between the African, Caribbean and
Pacific States (ACP) and the European Economic Community, signed
at Lomé on 15 December 1989 (approved by Decision of
the
Council and the Commission of 25 February 1991 on the conclu-
sion of the fourth ACP-EEC Convention (OJ 1991 L 229, p. 1), as
amended by the agreement signed in Mauritius on 4 November
1995 (OJ 1998 L 156, p. 3).

Reference for a preliminary ruling from the Audiencia
Provincial, Salamanca (Spain) lodged on 26 May 2008 —
Eva Martín Martín v EDP Editores, S.L and Juan Caballo
Bueno

(Case C-227/08)

(2008/C 223/32)

Language of the case: Spanish

Referring court

Audiencia Provincial, Salamanca

Parties to the main proceedings

Applicant: Eva Martín Martín

Defendant: EDP Editores, S.L and Juan Caballo Bueno

Question referred

in conjunction with Articles 3 EC and
Must Article 153 EC,
95 EC, Article 38 of the Charter of Fundamental Rights of the
European Union, and Council Directive 85/577/EEC (1) of
20 December 1985 to protect
the consumer in respect of
contracts negotiated away from business premises, specifically
Article 4 thereof, be interpreted as meaning that a court seised
of an appeal against a judgment given at first instance may, of
its own motion, declare a contract which falls within the scope
of that directive void, where no plea of nullity was raised at any
point by the defendant consumer when submitting a defence to
the order for payment procedure, at the hearing, or during the
appeal?

(1) OJ L 372, p. 31 — EE 15/06, p. 131.