Case C-195/08 PPU, Rinau

This the first of the two cases so far in which the urgent preliminary rulings procedure as provided for in Art. 104b of the Rules of Procedure was used (see further this post). The second case will be discussed in the next post.

Mrs Rinau was a Lithuanian national residing in Germany. Because of a divorce from her German husband, she travelled with her daughter Luisa to Lithuania, where she had remained ever since. In 2007, her German ex-husband was awarded custody of Luisa by the Amtsgericht Oranienburg. Mrs Rinau was ordered to send Luisa back to Germany and to leave her in the custody of her father.
On the same day, the Amtsgericht Oranienburg annexed to its decision a certificate issued pursuant to Art. 42 of Regulation 2201/2003. After an appeal against this judgment was dismissed, Mrs Rinau lodged an application for non-recognition of the judgment of the Amtsgericht Oranienburg .

The application was found inadmissible on the ground that the certificate issued by the Amtsgericht Oranienburg pursuant to Art. 42 of Regulation 2201/2003 stated that all the conditions necessary to the issue of such a certificate, as set out in Art. 42(2), had been satisfied. Mrs Rinau lodged an appeal on a point of law before the referring court.

The referring Court, asking several questions concerning the interpretation of Regulation 2201/2003, requested that the reference for a preliminary ruling be dealt with under the urgent procedure provided for in Art. 104b of the Rules of Procedure, arguing inter alia that the preamble to Regulation 2201/2003 referred to the return without delay of a child which had been removed or retained, to Art. 11(3) of that regulation, which set a deadline of six weeks for the court to which an application for return was made to issue its judgment. The referring court found that it was necessary to act urgently on the ground that any delay would be very unfavourable to the relationship between the child and the parent with whom she did not live. The damage to that relationship could be irreparable.

The referring court also relied on the need to protect the child against any possible harm and the need to ensure a fair balance between the interests of the child and those of her parents. On a proposal from the Judge-Rapporteur and after hearing the Advocate General, the Third Chamber of the Court decided to allow the referring court’s request that the reference for a preliminary ruling be dealt with under an urgent procedure.

The Court reiterated that even if the object of Regulation 2201/2003 was not to unify the rules of substantive law and of procedure of the different Member States, it was nevertheless important that the application of those national rules did not prejudice its useful effect. (see also
Case C-365/88 Hagan [1990]; Case C-68/93 Shevill and Others [1995]; and Case C-159/02 Turner [2004]).

The Court of Justice held once a non-return decision had been taken and brought to the attention of the court of origin, it was irrelevant, for the purposes of issuing the certificate provided for in Art. 42 of Regulation 2201/2003 that that decision had been suspended, overturned, set aside or, in any event, had not become res judicata or had been replaced by a decision ordering return, in so far as the return of the child had not actually taken place.

Since no doubt had 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 Regulation 2201/2003, opposition to the recognition of the decision ordering return was not permitted and it was for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child.

The Court held that except where the procedure concerned a decision certified pursuant to Arts 11(8) and 40 to 42 of Regulation 2201/2003, any interested party could apply for non-recognition of a judicial decision, even if no application for recognition of the decision had been submitted beforehand.

Article 31(1) of Regulation 2201/2003, in so far as it provided that neither the person against whom enforcement was sought, nor the child was, at this stage of the proceedings, entitled to make any submissions on the application, was not applicable to proceedings initiated for non-recognition of a judicial decision if no application for recognition had been lodged beforehand in respect of that decision. In such a situation, the defendant, who was seeking recognition, was entitled to make such submissions.

Text of Judgment