Criminal proceedings against ZW.
Date: 2020-11-19
It should be noted that, in accordance with settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 18 and the case-law cited).
In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 19 and the case-law cited).
It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 20 and the case-law cited).
In the present case, it should be recalled that a Union citizen, such as ZW, a national of a Member State, who moved to another Member State, made use of her right to move freely, so that her situation falls within the scope of EU law (see, to that effect, judgments of 26 February 2015, Martens, C‑359/13, EU:C:2015:118, paragraph 22, and of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 27 and the case-law cited).
In so far as the national court raises the question of the compatibility with EU law of a provision of national criminal law, it should be recalled that although, in principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, the Court has consistently held that EU law imposes certain limits on their powers in such matters. National criminal provisions may not discriminate against persons to whom EU law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by EU law (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 19, and of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 57). Where such a provision is incompatible with the principle of equal treatment or with one of the fundamental freedoms guaranteed by EU law, it will be for the national court, which is called upon, within the exercise of its jurisdiction, to apply and give full effect to provisions of EU law, to disapply that provision (see, to that effect, judgment of 28 April 2011, El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 61 and the case-law cited).
In addition, in so far as the national court, by its questions, enquires about the interpretation of EU law, without referring to any specific provision thereof, it should be noted that, in accordance with the Court’s settled case-law, Article 21 TFEU contains not only the right to move and reside freely in the territory of the Member States but also a prohibition of any discrimination on grounds of nationality (see, to that effect, judgment of 8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraph 31 and the case-law cited).
National legislation which places certain of the nationals of a Member State at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union (see, to that effect, judgments of 14 October 2008, Grunkin and Paul, C‑353/06, EU:C:2008:559, paragraph 21; of 26 February 2015, Martens, C‑359/13, EU:C:2015:118, paragraph 25 and the case-law cited; and of 8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraph 35).
In accordance with the Court’s settled case-law, a restriction on the freedom of movement of Union citizens which, as in the case in the main proceedings, is independent of the nationality of the persons concerned, may be justified if it is based on objective considerations of public interest and is proportionate to the legitimate objective pursued by the national legislation in question. A measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective (judgments of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 41 and the case-law cited, and of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 67).
The Court has consistently held that the protection of the child is a legitimate interest which, in principle, justifies a restriction on a fundamental freedom guaranteed by the TFEU (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 42). The same applies to the protection of the fundamental rights of the child, as enshrined in Article 24 of the Charter of Fundamental Rights of the European Union.
It is also apparent from the Court’s case-law that it is not indispensable that measures laid down by a Member State to protect the rights of the child correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it. As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion. While it is true that it is for the Member States, in the absence of harmonisation within the European Union, to determine the level at which they intend to protect the interest concerned, the fact remains that that discretion must be exercised in conformity with the obligations arising under EU law and, in particular, the requirements set out in paragraph 36 of this judgment (see, to that effect, judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraphs 44 to 46).
That regulation is based, as is apparent from recitals 2 and 21 thereof, on the principle of mutual recognition of judicial decisions, the cornerstone for the creation of a genuine judicial area, and on the principle of mutual trust. The Court has consistently held that the principle of mutual trust requires each Member State, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 191, and judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36).