Case law Developments in PIL

August 2021 at the Court of Justice

The decision corresponding to case C-262/21 PPU A, will be delivered on 2 August 2021. It corresponds to a preliminary reference from the Supreme Court of Finland, with five questions on Regulation 2201/2003 and the 1980 Hague Convention, as well as on the interface between the first one and the Dublin III Regulation. Practicalities surrounding the application of Article 11(4) Brussels II bis regulation are also at stake.

1. Must Article 2(11) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

2. If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

3. If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either

(i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or

(ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or

(iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

4. If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

5. If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

AG Pikamäe’s Opinion was published in French and Finnish on July 14. He proposed the Court to answer as follows (translation by the author):

Council Regulation (EC) No 2201/2003 … must be interpreted as meaning that the situation, such as that in the main proceedings, in which a child and its mother have moved and remain in a Member State in execution of a transfer decision taken by the competent authority of the Member State of origin in accordance with Regulation (EU) No 604/2013 … cannot be considered as unlawful removal or retention within the meaning of Article 2 (11) of Regulation No 2201/2003, except if it is established that, under cover of an application for international protection made for the child, the mother has de facto tried circumvent the rules of judicial jurisdiction provided for by Regulation No 2201/2003, which is for the referring court to verify in the light of all the specific circumstances of the case.

The case will be decided by the First Chamber (M. Bonichot, as reporting judge ; M. Bay Larsen, Mme. Toader, M. Safjan, M. Jääskinen).

Legal Secretary CJEU Full Professor PIL, University of La Laguna (Spain) Senior research fellow MPI Luxembourg (on leave)

1 comment on “August 2021 at the Court of Justice

  1. Marta Requejo Isidro

    Update (translation by author): Article 2, point 11, of Council Regulation No. 2201/2003, must be interpreted in such a way the situation in which one of the parents, without the consent of the other parent, is obliged to transfer his child from his State of habitual residence to another Member State pursuant to a transfer decision adopted by the first Member State on the basis of the Dublin III Regulation, and subsequently to remain in the second Member State once that transfer decision has been annulled without, at the same time, the authorities of the first Member State having decided to readmit the transferred persons or to authorize their residence, does not constitute an illicit transfer nor an illicit retention within the meaning of the provision.

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