Case 195/08 PPU Rinau

Case sUMMARY - Situation In 2003 Ms Rinau, a Lithuanian national, married and lived in Germany with a national of that country. In 2005 the couple separated and divorce proceedings were initiated; little Luisa, born of this union, went to live with her mother. In July 2006 Ms Rinau left Germany with Luisa for a 2 weeks vacation and settle in Lithuania without telling the father. In August 2006 the competent German court provisionally confided the custody of Luisa to her father, but in December 2006 the Lithuanian court rejected the request for return of the girl in Germany submitted by his father on the basis of the Hague Convention of 1980 and Regulation No 2201/2003 (known as the Brussels II bis Regulation). In March 2007 this decision was reformed by a new appeal decision ordering the return of the child to Germany, which had not yet been executed. Finally, in June 2007, the competent German court decided to divorce the Rinau spouses, also assigned Luisa permanent’s custody to Mr Rinau and ordered Mrs Rinau to send Luisa back to Germany to the father's house. In order to do this, the court issued the certificate conferring, under the Brussels II bis Regulation, binding force on its June 2007 return decision and allowing its automatic recognition in another Member State. Ms Rinau then lodged an application with the Lithuanian courts for the non-recognition of the return decision taken by the German court.

This dispute resulted in the Supreme Court of Lithuania, which asked the Court of Justice questions concerning the interpretation of the Brussels II bis Regulation, in particular the possibility for the court of a Member State to certify the enforceability of his decision to return when, following the amendment of the decision of the court of the other Member State refusing the return of the child, the conditions under which that regulation provides for the issue of the certificate were no longer fulfilled. In this case the Court provided important indications for the interpretation of the so-called "Brussels II bis" regulation, as regards the conditions of execution of a judicial decision ordering the return of a child unlawfully detained in another Member State.

New procedure in area for freedom, security and justice This judgment is particularly important as the Court is applying for the first time the new urgent preliminary ruling procedure, which was created with effect from 1 March 2008 to enable the Court to deal with matters relating to the area of ​​freedom, security and justice in a considerably shortened time. Thus, in this case the judgment was pronounced only seven weeks after the referral to the Court, whereas a preliminary ruling procedure now lasts 20 months on average.

QUESTIONS ASKED "1. Can an interested party within the meaning of Article 21 of [the Regulation] apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision? 2. If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision brought by a person against whom that decision is to be enforced, to apply Article 31(1) of [the Regulation], which states that "… [n]either the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application"? 3. Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring the child staying with that person to be returned to the State of origin, and in respect of which the certificate provided for in Article 42 of [the Regulation] has been issued, required to examine that application on the basis of the provisions of Sections 1 and 2 of Chapter III of [the Regulation], as provided for in Article 40(2) of that regulation?(The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter.) 4. What meaning is to be attached to the condition laid down in Article 21(3) of [the Regulation] ("[w]ithout prejudice to Section 4 of this Chapter”)?(Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised. ) 5. Does the adoption of the decision to return the child and the issue of the certificate under Article 42 of [the Regulation] in the court of the Member State of origin, after a court of the Member State in which the child is wrongfully retained has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under [the Regulation]? 6. Does the prohibition in Article 24 of [the Regulation] of review of the jurisdiction of the court of the Member State of origin mean that, if it is unable to review the jurisdiction of the court of the Member State of origin and cannot identify any other grounds for non-recognition of decisions as set out in Article 23 of [the Regulation], a national court which has received an application for recognition or non-recognition of a decision of a foreign court is obliged to recognise the decision of the court of the Member State of origin ordering the child's return if the court of the Member State of origin failed to observe the procedures laid down in the Regulation when deciding on the issue of the child's return?”

Basically the main points in question are can Mrs Rinau apply for non-recognition when there was no recognition application and will the provisions in Chapter 3 be used in examining the application And most importantly how do the decision made by the court for refusal of return, the appeal, the suspension affect the enforceability of the certificate?And if no ground of non recognition exist is it obliged to enforce the decision? Art.42 on the return of the child 1.The return of child referred to in art.40(1)b entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.

Courts cONCLUSIONS On the merits, the Court notes that the certificate of enforceability of a decision ordering the return of the child can only be issued if a decision of non-return has previously been given by the court of another Member State . However, the fact that such a decision (as in this case that of the Lithuanian court of December 2006 refusing the return of Luisa) has meanwhile been reformed does not, however, prevent the issuance of the certificate. If it were otherwise, the Brussels II bis Regulation might be rendered redundant, since the objective of the immediate return of the child would remain conditional on the exhaustion of the procedural routes allowed by national law of the Member State in which the child is unlawfully detained. The Court concludes that, once a decision of non-return has been taken and brought to the attention of the court of origin, the certificate conferring enforceability of the decision of that court may be issued, even if the initial decision of no return has been suspended, reformed, annulled or, in any event, has not become res iudicata or has been replaced by a return decision, provided that the child's return has not in fact occurred. place. Since in the present case there is no doubt as to the authenticity of this certificate, opposition to the recognition of the return decision is prohibited 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 Also the Court stated that there was no possibility for an application of non-recognition where a return order had been adopted and certified pursuant to Articles 11(8) and 42, or where an Art 41 access order had been made, the possibility of making an independent application for non-recognition could not be discounted in general terms. Such an application was capable of satisfying various objectives, either of a substantive nature, in particular those relating to the best interests of the child, or the stability and harmony of the family, or of a procedural nature, by making it possible to bring forward the production of evidence which might no longer be available in the future. As regard the second question the Court held that Article 31(1) of the Regulation, 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. The answer to the third question was self evident: an application for non-recognition of a judicial decision was not permitted if a certificate had been issued pursuant to Article 42 of the Regulation.