Joseba Andoni Aguirre Zarraga v Simone Pelz.
Date: 2010-12-22
39. In that regard, it must be observed that it is apparent from the case‑law that the Court recognises the urgency of ruling in cases of child removal in particular where the separation of a child from the parent to whom, as in the main proceedings, custody had previously been awarded, even if only provisionally, would be likely to bring about a deterioration of their relationship, or harm that relationship, and to cause psychological damage (see, to that effect, Case C‑195/08 PPU Rinau [2008] ECR I‑5271, paragraph 44; Case C‑403/09 PPU Detiček  [2009] ECR I‑0000, paragraph 30; Case C‑211/10 PPU Povse  [2010] ECR I‑0000, paragraph 35; and Case C‑400/10 PPU McB.  [2010] ECR I‑0000, paragraph 28).
48. Accordingly, it is apparent from Articles 42(1) and 43(2) of Regulation No 2201/2003, interpreted in the light of recitals 17 and 24 in the preamble to that regulation, that a judgment ordering the return of a child handed down by the court with jurisdiction pursuant to that regulation, where it is enforceable and has given rise to the issue of the certificate referred to in the said Article 42(1) in the Member State of origin, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition (see, to that effect, Rinau , paragraph 84, and Povse , paragraph 70).
50. Furthermore, only in accordance with the legal rules of the Member State of origin can an action seeking rectification of the certificate issued by the court of origin be brought or questions raised as to the authenticity of that certificate (see, to that effect, Povse , paragraph 73 and case-law cited). Moreover, in order to secure the expeditious enforcement of the judgments concerned and to ensure that the effectiveness of the provisions of Regulation No 2201/2003 is not undermined by abuse of the procedure, any appeal against the issuing of a certificate pursuant to Article 42 of that regulation, other than an action seeking rectification within the meaning of Article 43(1) of the regulation, is excluded, even in the Member State of origin (see, to that effect, Rinau , paragraph 85).
51. In addition, it is also clear from the case-law that, in the context of the clear division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement established by Regulation No 2201/2003 and intended to secure the expeditious return of the child, questions concerning the lawfulness of the judgment ordering return as such, and in particular the question whether the necessary conditions enabling the court with jurisdiction to hand down that judgment are satisfied, must be raised before the courts of the Member State of origin, in accordance with the rules of its legal system ( Povse , paragraph 74).
57. Support for that interpretation can be found in the fact that the grounds laid down in Articles 23 and 31 of Regulation No 2201/2003 which justify the court of the Member State of enforcement not recognising or declaring not enforceable a judgment on matters of parental responsibility, which include a manifest conflict with the public policy of that Member State and the violation of fundamental principles of procedure of that Member State which require that the child be given the opportunity to be heard, were not repeated as grounds capable of justifying opposition by the courts of the Member State of enforcement in the proceedings covered by the provisions of Chapter III, Section 4 of that regulation (see, to that effect, Rinau , paragraphs 91, 97 and 99).
59. In that regard, it must be observed that the clear division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement established by the provisions of Chapter III, Section 4 of Regulation No 2201/2003 (see, to that effect, Povse , paragraph 73) rests on the premiss that those courts respect, within their respective areas of jurisdiction, the obligations which that regulation imposes on them, in accordance with the Charter of Fundamental Rights.
70. As was emphasised in paragraph 46 of this judgment, the systems for recognition and enforcement of judgments handed down in a Member State which are established by that regulation are based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights.
71. That being the case, as stated by the Advocate General in point 135 of his view, it is therefore within the legal system of the Member State of origin that the parties concerned must pursue legal remedies which allow the lawfulness of a judgment certified pursuant to Article 42 of Regulation No 2201/2003 to be challenged.