Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
The CJEU noted that Regulation No 2201/2003 had set up a system whereby, in the event that there is a difference of opinion between the court where the child is habitually resident and the court where the child is wrongfully present, the former retains exclusive jurisdiction to decide whether the child is to be returned.
To this end a certified judgment ordering the return of a child handed down by the court with jurisdiction in the Member State of origin pursuant to Article 42, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition. Consequently, the court of the Member State of enforcement can do no more than declare that a judgment thus certified is enforceable.
The Court confirmed that there was no basis under Article 42(2) for the court of the Member State of enforcement to review the conditions for the issue of the certificate. Such a power could undermine the effectiveness of the system set up by the Regulation.
Turning to the views of the child, the Court noted that before an Article 42 certificate could be issued the court of the Member State of origin must ensure that the judgment was made with due regard to the child’s right to freely express his or her views and that a genuine and effective opportunity to express those views was offered to the child, taking into account the procedural means of national law and the instruments of international judicial cooperation.
However, it equally noted that it was solely for the national courts of the Member State of origin to examine the lawfulness of that judgment. This was because the Regulation’s recognition and enforcement system was based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights.
Consequently, the answer to the questions referred was that, in circumstances such as those of the main proceedings, the court with jurisdiction in the Member State of enforcement cannot oppose the enforcement of a certified judgment, ordering the return of a child who has been wrongfully removed, on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42 of Regulation No 2201/2003, interpreted in accordance with Article 24 of the Charter of Fundamental Rights, since the assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin.
Author of the summary: Peter McEleavy