J. McB. v L. E..
Date: 2010-10-05
28. In that regard, it must be observed that, according to the order for reference, the present case concerns three children aged three, seven and nine years old who have been separated from their father for more than a year. Given that the children concerned, and especially the youngest, are young children, the continuation of the current situation might seriously harm their relationships with their father.
32. In that regard, it must be recalled that, according to the Court’s case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (Joined Cases C‑376/05 and C‑377/05 Brünsteiner and Autohaus Hilgert  [2006] ECR I‑11383, paragraph 26 and case-law cited).
33. Consequently, where the questions submitted by the national court concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 38, and Case C‑103/08 Gottwald  [2009] ECR I‑9117, paragraph 16).
34. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, in particular where it is quite obvious that the interpretation which is sought of the provisions of European Union law referred to in those questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Gottwald , paragraph 17, and Case C‑82/09 Dimos Agios Nikolaos  [2010] ECR I‑0000, paragraph 15).
51. First, according to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it.
53. Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C‑450/06 Varec  [2008] ECR I‑581, paragraph 48).
58. That finding is not invalidated by the fact that, if steps are not taken by such a father in good time to obtain rights of custody, he finds himself unable, if the child is removed to another Member State by its mother, to obtain the return of that child to the Member State where the child previously had its habitual residence. Such a removal represents the legitimate exercise, by the mother with custody of the child, of her own right of freedom of movement, established in Article 20(2)(a) TFEU and Article 21(1) TFEU, and of her right to determine the child’s place of residence, and that does not deprive the natural father of the possibility of exercising his right to submit an application to obtain rights of custody thereafter in respect of that child or rights of access to that child.
60. It must also be borne in mind that Article 7 of the Charter, mentioned by the referring court in its question, must be read in a way which respects the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of that Charter, and taking into account the fundamental right of a child to maintain on a regular basis personal relationships and direct contact with both of his or her parents, stated in Article 24(3) (see, to that effect, Case C‑540/03 Parliament  v Council  [2006] ECR I‑5769, paragraph 58). Moreover, it is apparent from recital 33 in the preamble to Regulation No 2201/2003 that that regulation recognises the fundamental rights and observes the principles of the Charter, while, in particular, seeking to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter. Accordingly, the provisions of that regulation cannot be interpreted in such a way that they disregard that fundamental right of the child, the respect for which undeniably merges into the best interests of the child (see, to that effect, Case C‑403/09 PPU Detiček  [2009] ECR I‑0000, paragraphs 53 to 55).