Koen Lenaerts*

 

The European Court of Justice’s (the ‘ECJ’) contribution to the Area of Freedom, Security and Justice is greatly facilitated by certain special procedures which allow particular cases to be dealt with more rapidly when required. In all matters that fall within the Area of Freedom, Security and Justice, swift decision-making is of the essence. This is the case not only in the field of immigration and asylum or in respect of criminal proceedings, but also in family matters, particularly as far as the custody of children is concerned. In all of these fields, the maxim ‘justice delayed is justice denied’ is particularly relevant. This requirement for swift decision-making is now explicitly set out in the last paragraph of Article 267 TFEU, which requires the ECJ to act with minimum delay ‘if [the] question [referred] is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody’. This requirement for swift decision-making must not, however, be applied to the detriment of the protection of fundamental rights—particularly with respect to the rights of the defence—or by weakening the EU’s judicial system based on a dialogue between the ECJ and national courts.

It is well-known that preliminary rulings given on the basis of Article 267 TFEU have binding legal effects not only ex tunc, but also erga omnes, meaning that the ECJ’s findings on points of law bind not only the referring court, but also all of the Member States. This is the reason why, on the one hand, a preliminary ruling issued by the ECJ must be translated into all official languages of the Union and why, on the other hand, all Member States are entitled, by virtue of the Statute of the Court of Justice, to submit written and/or oral observations to the ECJ concerning issues raised by a reference for a preliminary ruling.[1]

To reconcile all these requirements, the preliminary ruling procedure has been the object of two important procedural developments which make it possible for the ECJ to deal with cases concerning the Area of Freedom, Security and Justice more quickly[2].

             I.      The Accelerated Procedure

By virtue of Article 104a of the Rules of Procedure of the Court of Justice, at the request of the national court, the President may exceptionally decide to apply an accelerated procedure where the circumstances concerned establish that a ruling on the question put to the ECJ is a matter of exceptional urgency.[3] In contrast to the urgent preliminary ruling procedure, the accelerated procedure is not limited to matters pertaining to the Area of Freedom, Security and Justice. For instance, in Metock[4] the ECJ applied the accelerated procedure on the ground that the interpretation of Directive 2004/38/EC[5] would remove the uncertainty affecting the situation of third country nationals who, because they were in breach of Irish immigration laws, were deprived of the opportunity of living a normal family life, as were their EU-citizen spouses.[6]

The accelerated procedure was also applied in the Kozłowski case,[7] which concerned the execution by the German authorities of a European arrest warrant issued by the Polish authorities against Mr Kozłowski, a Polish national. The referring court submitted that the execution of the European arrest warrant issued against Mr Kozłowski was likely to be compromised to the extent that his detention in Germany would normally come to an end in November 2009.[8] In view of the relevant provisions of German criminal law concerning stays of execution of a criminal sentence, Mr Kozłowski could obtain an early release from custody after serving two-thirds of the duration of his sentence, namely from 10 September 2008 onwards.[9] In response, the President of the Court found that it would undoubtedly be possible for the referring court to order, before the said date and taking into consideration the Polish request to surrender Mr Kozłowski, his arrest for the purposes of complying with that request.[10] However, in any event, his detention had to be for a short time only, since it had to be proportional to the five-month imprisonment to which he was sentenced for crimes committed in Poland.[11] The President of the Court then considered that the case raised problems of interpretation in a sensitive field of legislation which touched upon central aspects of the functioning of the European arrest warrant which was before the ECJ for the first time.[12] Furthermore, the interpretation of the relevant provisions of the Framework Decision on the European arrest warrant (the ‘Framework Decision’)[13] requested by the referring court was liable to have consequences more generally both for national authorities required to cooperate within the framework of the European arrest warrant system and for the rights of the persons whose surrender was requested as they were liable to find themselves in situations of uncertainty.[14] Therefore, a swift reply to the questions referred to the ECJ in the instant case was needed to enable the national judicial authority seised of the surrender request to respond to it in an informed way and thereby to perform its obligations under the Framework Decision.[15] It should further be noted that the referring court had requested the ECJ to decide the case pursuant to the urgent preliminary ruling procedure,[16] but that this procedure was not yet applicable ratione temporis. On the substance of the case, the ECJ was asked to clarify Article 4(6) of the Framework Decision, which provides a ground for optional non-execution of the European arrest warrant. This provision states that where, for the purposes of executing a custodial sentence or a detention order, the requested person ‘is a national’, ‘is staying in’ or ‘is a resident of’ the executing State, the executing judicial authority may refuse to execute the arrest warrant in so far as this State undertakes to execute the sentence or detention order in accordance with its domestic law. In the case at hand, the German executing judicial authority asked whether it could rely on Article 4(6) of the Framework Decision as implemented by German law to refuse execution of a European arrest warrant issued by a Polish court in proceedings involving Mr Kozłowski, a Polish national residing illegally in Germany, staying there interruptedly, and serving a custodial sentence for having committed crimes therein. From the need for uniform application of EU law and the principle of equality, the ECJ inferred that ‘staying’ and ‘resident’ are two autonomous concepts, i.e. Member States are precluded from giving those terms a different meaning.[17] Next, in light of the information provided, the ECJ noted that Mr Kozłowski was not a resident in Germany and proceeded to define ‘staying’. A large definition of ‘staying’ was ruled out, given that it would run counter the objective pursued by the Framework Decision, namely simplifying and facilitating extradition procedures. Yet, ‘staying’ could not be interpreted too narrowly either, so as to exclude situations where the person requested had established connections with the executing State that would increase his chances of reintegrating into society upon completion of his sentence. Thus, when evaluating whether the person requested is ‘staying’ in the executing State, it is for the executing judicial authority ‘to make an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State [without any of them being decisive of itself]’.[18] For Mr Kozłowski this meant that he was not ‘staying’ in Germany for the purposes of Article 4(6), given ‘in particular the length, nature and conditions of his stay, the absence of family ties and his very weak economic connections with the executing Member State’.[19]

More recently, the ECJ also decided to apply the accelerated procedure in Melki and Abdeli[20], E and F[21] and Purrucker II.[22]

In Melki and Abdeli, the French Cour de cassation asked whether, in circumstances where a national legislative provision allegedly breaches the French Constitution by virtue of the fact that it breaches EU law, an assessment of the constitutionality of that legislative provision may take priority over the examination of its compatibility with EU law. If so, then lower French courts would effectively be prevented from setting aside national laws on the basis that they conflict with EU law unless they make a reference to the Cour de cassation (or the Conseil d’État) which would in turn decide whether the question should be forwarded to the Conseil constitutionnel (the so-called ‘double système de renvoi’). The latter would then give a definitive answer to the questions referred as its rulings are not subject to appeal. This would have the effect of preventing French courts from seeking guidance directly from the ECJ. The Cour de cassation based its request for an accelerated procedure on two grounds. First, the dispute involved the detention of two third country nationals illegally residing in France. Second, in accordance with French law, the Cour de cassation is itself subject to tight time constraints, since it has only three months to decide whether to refer the question of constitutionality to the Conseil constitutionnel. On the substance, the ECJ ruled that Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the precedence afforded to that procedure prevents – both before the referral of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court – all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the ECJ for a preliminary ruling.[23]

E and F illustrates the importance of the accelerated procedure in the field of the fight against international terrorism, which, although related to it, falls outside the Area of Freedom, Security and Justice.[24] In that case, two third country nationals were accused by the German authorities of belonging to the DHKP-C, an allegedly terrorist organisation, and of breaching Regulation nº 2580/2001[25] by collecting funds to finance the latter’s activities. In accordance with German criminal procedure, hearings in such cases must be closed, at the latest, eight months after the reference was lodged. This meant that an interpretation of Regulation nº 2580/2001 had to be obtained prior to this deadline, otherwise the hearings would have to be re-opened, thus negatively affecting the conduct of the proceedings before the referring court. In this regard, the ECJ reasoned that, in light of the sensitive nature of the questions referred and in order to preserve the spirit of cooperation between the national and EU judiciaries, an accelerated treatment of the case at hand was required.[26] On the merits, the ECJ ruled that, since the Council had failed to state the reasons why the legal conditions for the application of Regulation nº 2580/2001 to the DHKP‑C were fulfilled, that organisation’s inclusion in the list provided for in Article 2(3) thereof was illegal and, accordingly, could form no part of the basis for a criminal conviction arising from an alleged infringement of that Regulation. Further, the ECJ held that Regulation nº 2580/2001 applies to situations where members of a terrorist organisation, which is listed by that Regulation, transfer funds and other financial assets or economic resources collected or obtained from third persons to that terrorist organisation.

Purrucker II,[27] concerning the interpretation of the Brussels II bis Regulation,[28] is an interesting example of a case where the ECJ applied the accelerated procedure in the Area of Freedom, Security and Justice.[29] The facts of the case may be summarised as follows. From mid-2005 to early 2007, Mr Vallés Pérez and Ms Purrucker lived together as an unmarried couple in Spain. In May 2006, Ms Purrucker gave birth to boy-girl twins who were born prematurely. The boy, Merlin, was able to leave hospital in September of that year. By contrast, the girl, Samira, had to stay in hospital until March 2007. By the time the twins were born, the relationship between Mr Vallés Pérez and Ms Purrucker had deteriorated. In February 2007, after concluding an agreement before a notary which provided that both parents would have custody of and parental responsibility for the twins and fixed Germany as their permanent place of residence, Ms Purrucker left for Germany with her son Merlin. Samira had to stay in Spain because she still required surgery. In Ms Purrucker’s understanding of the agreement, Samira was to be brought to Germany after she left hospital.

However, no longer wishing to follow the agreement signed before a notary, Mr Vallés Pérez brought an action before a Spanish court seeking interim measures and, in particular, provisional rights of custody in respect of his children. As a provisional measure, the Spanish court ordered the return of Merlin to Spain. Accordingly, Mr Vallés Pérez sought to enforce the judgment of the Spanish court in Germany. In the course of these proceedings, the Bundesgerichtshofreferred a question to the ECJ which led to Purrucker I.[30] In that case, the ECJ held that the provisions laid down in Article 21 et seq. of the Brussels II bis Regulation were not applicable to provisional measures within the meaning of Article 20 of that Regulation, but only to judgments on the substance.[31]

For her part, Ms Purrucker brought an action before the Amtsgericht Stuttgart seeking custody of her children. Having doubts as to its international jurisdiction, the Amtsgericht Stuttgart asked the ECJ how ‘the court first seised’ was to be determined for the purposes of the litispendence rule set out in Article 19 of the Brussels II bis Regulation. It also requested the case to be dealt with under Article 104a of the Rules of Procedure, on the grounds that the ongoing separation of the twins, who had been apart since February 2007, was seriously detrimental to the fraternal bond between them. In addition, ever since that date, neither had Merlin had any personal contact with his father, nor Samira any contact with her mother. The President of the Court held the reasons put forward by the Amtsgericht Stuttgart to be convincing and thus decided to treat the case under the accelerated procedure.[32] On the merits, the ECJ held that the litispendence rule contained in Article 19 of the Brussels II bis Regulation does not apply in relation to the court of a Member State which is called upon to grant only provisional measures.[33] The reasons are twofold. [34] First, referring to Purrucker I,[35] the ECJ held that ‘[i]t is evident from the position of Article 20 in the structure of [the Brussels II bis Regulation] that it cannot be regarded as a provision which determines substantive jurisdiction for the purposes of that [R]egulation’. Second, in light of Article 20 (2) of the Brussels II bis Regulation, provisional measures cease to produce effects as soon as appropriate provisional or definitive measures are adopted by the national court having substantive jurisdiction under that Regulation. It follows that where the court first seised by a party is called upon to grant only provisional measures, then the court of another Member State subsequently seised by the other party – in compliance with the Brussels II bis Regulation – has jurisdiction to rule on the substance of the matter and, as the case may be, to provide interim relief.

          II.      The urgent preliminary ruling procedure

The urgent preliminary ruling procedure enshrined in Article 104b of the Rules of Procedure of the Court of Justice constitutes an additional, new mechanism with crucial implications for preliminary rulings in the context of the Area of Freedom, Security and Justice.[36] It is worth recalling that, unlike the accelerated procedure, it only covers cases dealing with matters falling within the Area of Freedom, Security and Justice. That is why in Pontini,[37] which concerned agriculture, the ECJ declined to hear the case under the urgent preliminary ruling procedure.[38]

Following a request from the Council, the ECJ proposed the introduction of this new procedure in order to be able to deal more quickly with the most sensitive issues arising in respect of the Area of Freedom, Security and Justice, particularly where the answer to the question referred is decisive for the assessment of the legal situation of the person detained by national authorities or in proceedings concerning the parental custody of children. In other words, national courts cannot afford to wait for the replies to questions such as these for the time normally required for the consideration of preliminary rulings.

The urgent preliminary ruling procedure, which came into force on 1 March 2008, makes a clear distinction between those who may participate in the written stage of the procedure and those entitled to participate in the oral stage only, with a view to making it possible to reach a decision quickly.[39] When a request to apply that procedure is granted, or when the President of the Court proposes of his own motion that it should be applied,[40] the handling of the case is accelerated considerably. All cases which might potentially be decided under the urgent preliminary ruling procedure are, from the moment they reach the ECJ, referred to a Chamber of five judges specifically designated for a period of one year to be responsible for the screening and processing of such cases (the ‘PPU Chamber’).[41] Moreover, to avoid hold-ups resulting from the service of documents, communications under the urgent preliminary ruling procedure can be conducted via electronic means.[42] As of June 2011, 12 cases have been dealt with under the urgent preliminary ruling procedure.[43]

A.    Judicial cooperation in civil matters

The urgent preliminary ruling procedure was applied for the first time in Rinau[44]concerning the Brussels II bis Regulation. In that case, the Lithuanian Supreme Court was seised of an application for the non‑recognition of a judgment of a German court awarding custody of a child to her father, who lived in Germany, and ordering her mother, who lived in Lithuania, to return the child to him. The referring court requested that the reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure, since the Brussels II bis Regulation provides for the return without delay of a child who has been removed or retained and sets a deadline of six weeks by which time the court to which an application for return is made must deliver its judgment.[45] The referring court found that it was necessary to act urgently on the ground that any delay would be unfavourable to the relationship between the child and the non-custodial parent.[46] It also relied on the need to protect the child against any possible harm and to ensure a fair balance between the interests of the child and those of her parents.[47] Taking those observations into account, the ECJ granted the referring court’s request that the case be dealt with pursuant to the urgent preliminary ruling procedure.[48] On the substance of the case, the ECJ decided that once a non‑return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in Article 42 of the Brussels II bis Regulation, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. The ECJ further specified that, 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 the Regulation, 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.[49]

In the field of judicial cooperation in civil matters, the ECJ has decided to apply the urgent preliminary ruling procedure in five more cases, namely Detiček,[50] Povse,[51] McB.,[52] Zarraga,[53] and Mercredi,[54]all five of which also concerned the interpretation of the Brussels II bis Regulation.

In Detiček, the facts may be summarised as follows. In the course of divorce proceedings between MsDetiček, a Slovenian national, and Mr Sgueglia, an Italian national, the competent court in Tivoli (Italy) provisionally granted the custody of their daughter to Mr Sgueglia. On the same day this decision was issued, Ms Detiček left Italy with her daughter to go to Slovenia. With a view to having his daughter returned to Italy, Mr Sgueglia sought to enforce the order of the Italian court in Slovenia. The order of the Italian court was declared enforceable in Slovenia but its enforcement was suspended until final disposal of the main proceedings. For her part, Ms Detiček obtained a provisional and protective measure from the Regional Court of Maribor (Slovenia) giving her custody of the child. The Regional Court of Maribor based its jurisdiction to adopt such a measure on Article 20 of the Brussels II bis Regulation, holding that there had been a change of circumstances that militated against removing the child from her social environment in Slovenia. This decision was challenged by Mr Sgueglia before the Court of Appeal of Maribor, which sought guidance from the ECJ. Hence, the questions referred to the ECJ boiled down to determining whether the Regional Court of Maribor had made an appropriate use of the provisions conferring exceptional jurisdiction laid down in Article 20 of the Regulation. The referring court also requested for a preliminary ruling to be dealt with under the urgent preliminary ruling procedure on the grounds that a delayed decision would be contrary to the interests of the child, would adversely affect the relationship between Mr Sgueglia and his daughter, and would prolong the state of legal uncertainty.[55] In light of these considerations, the ECJ granted the request from the Court of Appeal of Maribor.[56] On the substance of the case, the ECJ began by observing that in so far as Article 20 of the Brussels II bis Regulation is an exception to the system of jurisdiction laid down therein, this provision must be interpreted strictly. Next, the ECJ recalled the three cumulative conditions that must be fulfilled for the application of Article 20, namely that the measures concerned [1] must be urgent, [2] must be taken in respect of persons or assets in the Member States where those courts are situated, and [3] must be provisional. The ECJ noted that the circumstances mentioned by the referring court did not satisfy the condition of urgency. First, the ECJ found that applying Article 20 to circumstances such as those in the main proceedings would run counter to the principle of mutual recognition of judgments which underpins the Brussels II bis Regulation. Indeed, if the integration of the child into a new environment were sufficient to trigger the application of Article 20, this would encourage the courts of the requested Member State to block the enforcement of a judgment rendered by a court of another Member State that had been declared enforceable.[57] Second, the ECJ acknowledged that in the present case the change in the child’s circumstances resulted from wrongful removal. Accordingly, the interpretation of Article 20 suggested by the Regional Court of Maribor ‘would amount, by consolidating a factual situation deriving from wrongful conduct, to strengthening the position of the parent responsible for the wrongful removal’.[58] Moreover, the ECJ also found that the second condition for the application of Article 20 was not satisfied either, given that Mr Sgueglia, who did not reside in Slovenia, was concerned by the measure ordering the change of custody of his daughter. Finally, the ECJ pointed out that Article 20 ‘cannot be interpreted in such a way that it disregards Article 24(3) of the Charter’. Stated differently, this provision cannot favour situations where as a result of wrongful removal, a child is deprived from maintaining on a regular basis a personal relationship and direct contact with one of his or her parents.[59]

Povse involved the wrongful removal from Italy of Sofia, a four-year old born to an Italian father, Mr Alpago, and an Austrian mother, Ms Povse. The wrongful removal took place in February 2008, when Ms Povse and her daughter left Italy —the Member State where the child was habitually resident immediately before the wrongful removal — to stay permanently in Austria. That removal was in breach of a provisional decision of the Tribunale per I Minorenni di Venezia which prohibited the mother from leaving Italy with the child. However, in May 2008, the same Tribunal revoked its previous decision and adopted new provisional measures allowing Sofia to stay in Austria. Once settled in Austria, Ms Povse sought to obtain the custody of Sofia before the Bezirksgericht Judenburg, which held that, in accordance with Article 15 of the Brussels II bis Regulation, it enjoyed jurisdiction and requested the Tribunale per I Minorenni di Venezia to decline jurisdiction. However, the latter refused to do so and, in July 2009, ordered the immediate return of Sofia to Italy. In August 2009, the Bezirksgericht Judenburg granted the provisional custody of Sofia to Ms Povse. In September 2009, Mr Alpago sought to enforce the judgment of the Tribunale per I Minorenni di Venezia of July 2009 in Austria. The Austrian court refused to enforce that judgment on the ground that the return of the child to Italy would represent a grave risk of psychological harm to her. On appeal, the Oberster Gerichtshof sought guidance from the ECJ. First, it asked whether a provisional decision such as that of the Tribunale per I Minorenni di Venezia of May 2008 could be considered as ‘a judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) (iv) of the Brussels II bis Regulation. Such a reading of Article 10(b) (iv) would mean that the Tribunale per I Minorenni di Venezia had declined its jurisdiction in favour of the Austrian courts. Second, it asked whether Article 11(8) of the Brussels II bis Regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision only when the basis of that order is a final judgment of the same court relating to rights of custody of the child. Stated differently, the question was whether the judgment of the Tribunale per I Minorenni di Venezia of July 2009 ordering the return of Sofia to Italy had to be a final judgment relating to rights of the custody of the child in order to be enforced. Third, the Oberster Gerichtshof asked whether the provisional decision of the Bezirksgericht Judenburg of August 2009 prevented the enforcement of the judgment of the Tribunale per I Minorenni di Venezia of July 2009 ordering the return of Sofia to Italy. Finally, it asked whether the enforcement of a certified judgment can be refused because, as a result of a change of circumstances, its execution might be seriously detrimental to the best interests of the child.

The referring court also requested the case to be dealt with under the urgent preliminary ruling procedure. The referring court based its request on the fact that contacts between Sofia and her father had been almost completely broken off since the wrongful removal. Accordingly, the passing of time had exacerbated the deterioration in the relationship between father and child due to their separation and thereby increased the risk of psychological harm if the child were ever sent back to Italy. The ECJ granted that request from the Oberster Gerichtshof.[60] On the substance, the ECJ held that, since the unlawful removal of a child should not, in principle, have the effect of transferring jurisdiction from the courts of the Member State where the child was habitually resident immediately before removal (Italy) to the courts of the Member State to which the child was taken (Austria) — even if, following the abduction, the child has acquired a habitual residence in the latter Member State —, Article 10(b) (iv) of the Brussels II bis Regulation must be interpreted restrictively.[61] This means that ‘a judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) (iv) can only be a final judgment.[62] Otherwise, the ECJ noted, ‘the court which has jurisdiction in the Member State where the child was previously habitually resident might be deterred from making such a provisional judgment, notwithstanding the fact that the interests of the child required it’.[63] Accordingly, the judgment of the Tribunale per I Minorenni di Venezia of May 2008 was not ‘a judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) (iv).[64] Next, the ECJ held that Article 11(8) of the Brussels II bis Regulation does not require the decision ordering the return of the child to be preceded by a final judgment relating to the rights of custody of the child. The ECJ found that such a requirement has no legal basis on the wording of Article 11(8). In addition, ‘the court which is ultimately responsible for determining rights of custody must have the power to determine all the interim arrangements and measures, including fixing the child’s place of residence, which might possibly require the return of the child’.[65] The requirement for a final ruling on custody would force the national court ordering the return of the child to take a decision on rights of custody when it had neither all the information nor all the material necessary for that purpose, nor the time required to make an objective and dispassionate assessment.[66] Most importantly, referring to Detiček, the ECJ held that an unlawful removal of a child must be avoided, since it often deprives the child from his/her fundamental right to maintain on a regular basis a personal relationship and direct contact with both parents as provided for by Article 24(3) of the Charter.[67] Thus, requiring the decision ordering the return of the child to be preceded by a final judgment relating to the rights of custody of the child would run the risk of delaying the re-establishment of the relationship of the child with one of his/her parents. This would be contrary to his/her best interests. Further, the ECJ held that the judgment of the Bezirksgericht Judenburg of August 2009 did not prevent the enforcement of the judgment of the Tribunale per I Minorenni di Venezia of July 2009 ordering the return of Sofia to Italy. The ECJ stressed that, in light of Article 42(1) and 43(2) of the Brussels II bis Regulation, a certified judgment ordering the return of a child is automatically enforceable, without any possibility for its recognition to be opposed.[68] As to a change of circumstances that would militate against the return of the child, the ECJ held that this was a question of substance for the courts of the Member State of origin, i.e. the Tribunale per I Minorenni di Venezia, to examine.[69]

In McB., the facts of the case may be summarised as follows. Mr McB. and Ms E. lived together as an unmarried couple in Ireland. They had three children together. By the year 2009, the couple’s relationship had deteriorated. In July 2009, Ms E. took a flight to England, taking with her the children. In November 2009, Mr McB. brought an action before the High Court of England and Wales seeking the return of the children to Ireland. In accordance with Article 15 of the 1980 Hague Convention, the High Court requested Mr McB. to obtain a decision or a determination from the Irish authorities declaring that the removal of the children was wrongful within the meaning of Article 3 of that Convention. Accordingly, Mr McB. brought an action before the Irish High Court seeking to obtain such a decision or a determination. However, the action was dismissed on the ground that the removal was not wrongful under the 1980 Hague Convention since, in accordance with Irish law, the natural father of children does not have automatic rights of custody.[70] On appeal, the Irish Supreme Court decided to stay proceedings and to ask the ECJ whether the Brussels II bis Regulation, read in light of Article 7 of the Charter, must be interpreted as precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights of custody to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that Regulation.[71] The Irish Supreme Court requested that the case be dealt with under the urgent preliminary ruling procedure on the ground that in cases of wrongful removal of a child, the return of the child should be obtained without delay. The ECJ granted that request.[72] It reasoned that the children had been separated from their father for more than a year and that, due to their young age, such ongoing separation could seriously harm their relationship with him.[73] On the substance, the ECJ held that Article 2(9) of the Brussels II bis Regulation defines ‘rights of custody’ as covering ‘rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence’. It also observed that ‘rights of custody’ are an autonomous concept that must be interpreted uniformly throughout the Union.[74] However, the Brussels II bis Regulation does not define the identity of the person who has rights of custody but refers to the laws of the Member State where the child was habitually a resident immediately before its removal or retention. This means that it is for national law to determine ‘the conditions under which the natural father acquires rights of custody in respect of his child, within the meaning of Article 2(9) of [the Brussels II bis Regulation], and which may provide that his acquisition of such rights is dependent on his obtaining a judgment from the national court with jurisdiction awarding such rights to him’.[75]

In light of the foregoing, the ECJ found that, under the Brussels II bis Regulation, the breach of (existing) rights of custody, conferred by the relevant national law, is a prerequisite in order for a removal to be considered as unlawful.[76] Next, the ECJ went on to determine whether such interpretation of the Brussels II bis Regulation was consistent with the Charter, in particular Articles 7 and 24 thereof.[77] As to Article 7 of the Charter, the ECJ noted that it is almost identical to Article 8 ECHR.[78] In accordance with Article 52(3) of the Charter, the meaning and scope of the rights contained in Article 7 thereof are therefore the same as those laid down in Article 8 ECHR.[79] Referring to the case-law of the ECtHR,[80] the ECJ held that the fact that rights of custody automatically belong to the mother but not to the natural father is not contrary to the latter’s right to a private and family life,[81] in so far as he has ‘the right to apply to the national court with jurisdiction, before the removal, in order to request that rights of custody in respect of his child be awarded to him’.[82] As to Article 24 of the Charter, the ECJ held that the fact that the natural father possesses rights of custody only as the result of a court judgment enables national courts to take a decision on the custody of the child which is apt to protect the child’s best interests. Indeed, national courts may take into account all the relevant facts, in particular ‘the circumstances surrounding the birth of the child, the nature of the parents’ relationship, the relationship of the child with each parent, and the capacity of each parent to take the responsibility of caring for the child’.[83] For the case at hand, the approach followed by the ECJ meant that Ms E. did not commit a wrongful removal within the meaning of the Brussels II bis Regulation. However, that circumstance ‘does not deprive [Mr McB.] of the possibility of exercising his right to submit an application to obtain rights of custody thereafter in respect of [his children] or rights of access to [them]’.[84]

In Zarraga, concerning the non return of a child from Germany to Spain, the Oberlandesgericht Celle asked, in essence, whether the certificate provided for by Article 42 of the Brussels II bis Regulation ordering the return of a child could be disregarded by a court in the executing State in circumstances where its issue amounted to a serious violation of fundamental rights, notably Article 24 of the Charter, or where that certificate contained a statement that was manifestly incorrect. In particular, the referring court asked whether it could oppose the enforcement of a judgment ordering the return of a child where – contrary to what is provided for by Article 42(2)(a) of the Brussels II bis Regulation – that child had not been given the opportunity to be heard. The ECJ decided that the case should be dealt with under the urgent preliminary ruling procedure. In so doing, it referred to its previous case law, stressing that it ‘recognises the urgency of ruling in cases of child removal in particular where the separation of a child from the parent to whom, as in the main proceedings, custody had previously been awarded, even if only provisionally, would be likely to bring about a deterioration of their relationship, or harm that relationship, and to cause psychological damage’.[85]

On the substance, the ECJ began by pointing out that the wrongful removal of a child in breach of a judgment handed down in the Member State of origin is seriously prejudicial to the interests of that child.[86] Accordingly, the Brussels II bis Regulation seeks to facilitate the quick return of a child wrongfully removed to the place where he or she is habitually resident, by setting up a system of recognition and enforcement which is based on the principle of mutual trust and on keeping to a minimum the grounds for non-recognition.[87] To that effect, the Brussels II bis Regulation grants exclusive jurisdiction to the court which is called upon to rule on the rights of custody of that child in accordance therewith – i.e. the court of the Member State of origin – and ensures that the judgments of that court are expeditiously enforced. Stated simply, ‘a judgment ordering the return of a child handed down by the court with jurisdiction pursuant to that regulation, where it is enforceable and has given rise to the issue of the certificate referred to in the said Article 42(1) in the Member State of origin, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition’.[88] The Member State of enforcement is thus prevented from reviewing the conditions for the issue of that certificate and from relying on public policy considerations or on the violation of fundamental national rules of procedure in order to justify the non recognition of a judgment certified pursuant to Article 42(1).[89] From the clear division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement established by the provisions of Chapter III, Section 4, of the Brussels II bis Regulation, the ECJ drew the two following implications. First, it is for the court of the Member State of origin alone to make sure that a judgment certified pursuant to Article 42(1) of the Brussels II bis Regulation complies with the child’s right to be heard as provided for by Article 24(1) of the Charter.[90] Second, the proper forum for the party opposing recognition to argue that a judgment certified pursuant to Article 42(1) does not comply with the Charter is before the courts of the Member State of origin.[91]

In Mercredi, the Court of Appeal of England and Wales requested a preliminary reference to be dealt with under Article 104b of the Rules of Procedure. The facts of the case were as follows. On 7 October 2009, Chloé, a 16-month-old French child, was lawfully removed from the UK to the Island of Réunion (France) by her mother. Prior to that, Chloé had her habitual residence in England. Four days after her arrival to Réunion, Chloé’s father filed applications for parental responsibility, shared residence and rights of access before the High Court. In the course of those proceedings, the High Court ordered the return of the child to England. Chloé’s father also brought proceedings before the Saint-Denis Regional Court (France) relying on the 1980 Hague Convention. However, by judgment of 15 March 2010, that court rejected his application on the ground that there was no evidence he had custody rights at the time of Chloé’s removal. For her part, on 28 October 2009, the mother of Chloé also brought proceedings before the Saint-Denis Regional Court. By judgment of 23 June 2010, that court granted her exclusive rights of custody over Chloé. In July 2010, she also brought an appeal against the ruling of the High Court. In the course of those proceedings, the referring court asked three questions to the ECJ. First, it wished to know how the terms ‘habitual residence’ must be interpreted for the purposes of Articles 8 and 10 of the Brussels II bis Regulation. In particular, it asked whether Chloé had become a habitual resident in Réunion four days after her arrival thereto, i.e. the date when her father seised the High Court. Second, it asked whether, under Article 10 of the Brussels II bis Regulation, a national court could qualify as an ‘institution or other body’ to which rights of custody can be attributed. Last, but not least, the referring court sought guidance on how to assess the concurrent jurisdiction of the UK courts and the French courts to make orders on the applications of Chloé’s father and mother respectively. Given that the passing of time was detrimental to the future relationship of Chloé with her father, from whom she had been separated for more than a year, the ECJ decided that it was appropriate to deal with the case under Article 104b of the Rules of Procedure.[92]

On the substance, it held that, in the absence of an express reference to the law of the Member States and in order to ensure a uniform application of EU law, the concept of ‘habitual residence’ is an autonomous concept.[93] Referring to its previous ruling in A,[94] the ECJ stressed that that concept must give the utmost consideration to the best interests of the child. In that regard, the ECJ pointed out that the concept of ‘habitual residence’ ‘corresponds to the place which reflects some degree of integration by the child in a social and family environment’.[95] For the case at hand, this meant that ‘where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State’.[96] Accordingly, the fact that Chloé had only staid for four days in Réunion before the High Court was seised did not per se rule out that she had become a habitual resident in France.[97] As to the second question, the ECJ reasoned that, since Article 10 of the Brussels II bis Regulation only applies in cases of wrongful removal, the interpretation of that provision was not necessary to solve the case at hand.[98] Finally, in establishing the place of habitual residence, the ECJ ruled that the judgment of the Saint-Denis Regional Court of 15 March 2010 was of no relevance, since it had no effects on determining the merits of rights of custody.[99] In relation to the judgment of the same court of 23 June 2010, the ECJ found that the lis pendens rule encapsulated in Article 19(2) of the Brussels II bis Regulation applied. Since the applications brought by the father and mother of Chloé respectively in the UK and France involved the same child and the same cause of action, it was for the court first seised – the High Court – to interpret the concept of ‘habitual residence’ and for the court second seised – the Saint-Denis Regional Court – to stay proceedings.[100] In interpreting that concept, the ECJ held that the High Court was not required to take into account the determinations of the Saint-Denis Regional Court.

B.     Visas, asylum and immigration

In the field of visas, asylum and immigration, the ECJ has applied the urgent preliminary ruling procedure in three cases, namely Kadzoev,[101] El Dridi,[102] and Mohammad Imran.[103] Whilst the first two cases concerned the interpretation of the Return Directive,[104] in the latter case the ECJ was requested to interpret the Family Reunification Directive.[105]

In Kadzoev, Mr Kadzoev, a third country national born in the Chechnya region of Russia, was detained by Bulgarian authorities, which imposed on him a coercive administrative measure of deportation. In November 2006, he was placed in a detention centre until the relevant travelling documents as well as the necessary funds to travel to Chechnya were obtained. This turned out to be impossible as Russia refused to issue him travelling documents on the ground that it did not recognise him as a Russian citizen. While being detained, Mr Kadzoev applied unsuccessfully for refugee status and for his detention to be replaced by a less severe measure. Efforts to find a safe third country willing to receive him also failed. As a result of this ongoing state of ‘legal limbo’, the detention of Mr Kadzoev continued given that his deportation order could not be executed. Nor could he be released since, unlike Article 15 of the Return Directive, the Bulgarian law applicable at the time did not provide for a maximum duration of detention in such circumstances. This impasse led the Bulgarian immigration authorities to commence administrative proceedings before the Sofia City Administrative Court so that the latter could rule of its own motion on the continued detention of Mr Kadzoev. Given that this case raised questions on the interpretation of Article 15 of the Return Directive, the Sofia City Administrative Court decided to seek guidance from the ECJ.[106] The opening of the urgent preliminary ruling procedure was also requested by the referring court on the ground that the case raised questions the answers to which had a bearing on the decision whether Mr Kadzoev should be kept in detention or released. In addition, the referring court argued that bearing in mind that Mr Kadzoev had been in detention for more than three years, the national proceedings should not be suspended for a prolonged period.[107] The Second Chamber of the ECJ upheld the request of the referring court and, in light of the importance of the questions referred,[108] the case was assigned to the Grand Chamber.[109] On the substance of the case, the ECJ held that the purpose of the Directive is ‘to guarantee that in any event the detention [of a third country national] for the purpose of removal does not exceed 18 months’. There are four implications that flow from this objective. First, ‘the maximum duration of detention must include a period of detention completed in connection with a removal procedure commenced before rules in that directive became applicable’.[110] Second, when calculating the maximum duration of detention under Article 15 of the Return Directive, the period during which the execution of a removal decision is suspended because of the examination of an application for asylum of a third country national who is being held in a detention facility must be taken into account, unless national authorities adopt a decision whereby the stay of the person concerned in a detention facility complies with the conditions laid down by the provisions of EU and national law concerning asylum seekers.[111] Likewise, the period during which the execution of the deportation decree is suspended because of judicial review proceedings brought against that decree by a third country national who is being held in a detention facility must also be included for the purpose of removal under Article 15.[112] Third, once the maximum duration of detention has been exhausted, the national court does not need to examine whether a reasonable prospect of removal exists.[113] As a matter of fact, ‘a reasonable prospect of removal’ does not exist where it seems unlikely that the person concerned will be deported to a third country prior to the expiration of the periods laid down in Articles 15(5) and 15 (6).[114] Last but not least, public order and public safety do not constitute grounds for detention under the Return Directive.[115]

In El Dridi,[116] the facts of the case may be summarised as follows. On 8 May 2004, a deportation decree was issued against Mr El Dridi, a third country national residing illegally in Italy. On 21 May 2010, the Questore di Udine issued a removal order whereby Mr El Dridi was required to leave the country within five days. Since the latter failed to comply with that order, the District Court of Trento sentenced him to one year’s imprisonment. On appeal, the Appeal Court of Trento asked the ECJ whether the Return Directive, in particular Articles 15 and 16 thereof, was to be interpreted as precluding a Member State’s legislation which provided for a sentence of imprisonment to be imposed on an illegally staying third country national on the sole ground that he remained, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period. It also requested the case to be dealt with under the urgent preliminary ruling procedure to which the ECJ agreed. The latter reasoned that a positive answer to the questions referred could cause the criminal sentence imposed on Mr El Dridi to be set aside.[117]

On the substance, the ECJ began by describing the general scheme of the Return Directive. As part of the initial stage of the return procedure, priority is given, as a general rule, to voluntary compliance with the obligation resulting from a return decision against a third country national staying illegally in the territory of the Member State concerned.[118] That third country national must comply with the return decision within a period of between seven and thirty days. Failing to do so, the Member State concerned may adopt the necessary measures including, where appropriate, coercive measures, to enforce the return decision. [119] The competent national authorities may decide to detain an illegally staying third country national in a specialised detention centre until the removal actually takes place.[120] But, in light of Kadzoev, detention may never last more than 18 months. Thus, under Article 8 of the Return Directive, the purpose of detention is to facilitate an effective system of removal and repatriation of illegally staying third country nationals.[121] However, a criminal penalty such as that provided for by Italian law did not pursue that objective. It was ‘a repressive reaction of the legal order […] to non-compliance with an order of the authority’.[122] In addition, such a criminal penalty could actually jeopardise the attainment of that objective, notably by delaying the enforcement of the return decision.[123] Accordingly, the ECJ ruled that the Return Directive must be interpreted as precluding a Member State’s legislation which provides for a sentence of imprisonment to be imposed on an illegally staying third country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.[124]

In Mohammad Imran, Mrs Mohammad Imran, an Afghan national, applied for a provisional residence permit at the Dutch Embassy in India. In so doing, she sought to get reunited with her husband and eight children (seven of whom were minors) in the Netherlands. However, her application was rejected on the ground that no evidence was produced that she had passed (or was exempted from passing) the basic civic integration examination program. Mrs Mohammad Imran challenged that decision before the District Court of The Hague. The latter sought guidance from the ECJ, asking, in essence, whether requiring a third country national to pass an exam demonstrating that he or she has basic knowledge of the Dutch language and Dutch society was compatible with the Family Reunification Directive. In addition, the District Court of The Hague requested the case to be dealt with under the urgent preliminary ruling procedure on the ground that the social, emotional, cognitive, and physical development of the children of Mrs Mohammad Imran could be at risk if separation from their mother persisted. The ECJ agreed to that request. Subsequently, a letter from the Dutch Ministry of Foreign Affairs was received at the registry of the ECJ, which stated that a provisional residence permit had been granted to Mrs Mohammad Imran. This meant for the case at hand that the questions referred were no longer urgent or relevant. Still, the referring court decided not to withdraw its order for a preliminary ruling, on the ground that Mrs Mohammad Imran intended to claim damages against the Dutch government. However, the ECJ ruled that there was no longer any dispute before the referring court and that the claim in damages was, at that stage, of a hypothetical nature, so that there was no need to reply to the reference for a preliminary ruling.

By contrast, in Zurita Garcia[125] concerning the interpretation of Regulation nº 562/2006,[126] the ECJ decided not to hear the case under the urgent preliminary ruling procedure. It seems that the ECJ was not convinced by the fact that the questions referred could also help to solve thousands of other cases of the same nature pending in Spain.[127]

C.     Police and judicial cooperation in criminal matters

The urgent preliminary ruling procedure was also applied in the field of police and judicial cooperation in criminal matters in Santesteban Goicoechea,[128]Leymann and Pustovarov,[129] and Gataev and Gataeva,[130] all three concerning the Framework Decision. In the former case, the French referring court’s request was granted by the ECJ because Mr Santesteban Goicoechea was being detained, after serving a sentence of imprisonment, on the sole basis of detention for the purpose of extradition ordered in the extradition proceedings in which the reference was made.[131] In this way, the ECJ was able to provide its response to the referring court’s questions in about one month’s time.[132] On the substance of the case, the Court held that Article 31 of the Framework Decision on the European arrest warrant refers only to the situation in which the European arrest warrant system is applicable, which is not the case where a request for extradition relates to acts committed before a date specified by a Member State in a statement made pursuant to Article 32 of that Framework Decision.[133] The ECJ further held that Article 32 of the Framework Decision does not preclude the application by an executing Member State of the Convention relating to extradition between the Member States of the European Union drawn up by Council Act of 27 September 1996 and signed on that date by all the Member States, even where that convention became applicable in that Member State only after 1 January 2004. [134]

In Leymann and Pustovarov, the ECJ granted the Finnish referring court’s request for a preliminary reference to be dealt with under Article 104b of the Rules of Procedure, on the ground that a clarification on the interpretation of Article 27 of the Framework Decision could lead the national court to reduce the sentence imposed on Mr Pustovarov and, consequently, to bring forward his release.[135] Given that in any event, Mr Pustovarov was due to be released on parole a few months later, the urgency of the matter was particularly pressing.[136] On the substance of the case, the ECJ was called upon to clarify the meaning of an offence other than that for which the person was surrendered, as provided for by Article 27(2) of the Framework Decision. In essence, the case boiled down to determining whether there was an offence other than that for which the person was surrendered ‘where both the arrest warrant and the final prosecution were based on a (serious) narcotics offence but the description of the offence was subsequently altered so that the prosecution concerned a different kind of narcotics [hashish] from that referred to in the arrest warrant [amphetamines]’. [137] In the light of the objectives pursued by the Framework Decision, the ECJ ruled that the national court had to evaluate whether the constituent elements of the offence described in the arrest warrant matched those described in the later procedural document. Additionally, the national court had to examine whether the information contained in the arrest warrant sufficiently corresponded to that contained in the later procedural document. Further, alterations to the place and time of the offence as described in the arrest warrant were allowed, provided that [1] they resulted from subsequent investigations undertaken in the issuing State in relation to the offence described in the arrest warrant, [2] they did not modify the nature of the offence and [3] they did not fall within the non-execution grounds laid down in Articles 3 and 4 of the Framework Decision.[138] For the case at hand this meant that a modification in the description of the offence concerning the kind of narcotic was not sufficient to trigger the application of Article 27(2), given that ‘the offence concerned is still punishable by imprisonment for a maximum period of at least three years and comes under the rubric ‘illegal trafficking in narcotic drugs’ in Article 2(2) of the Framework Decision’.[139] Finally, in the light of Article 27(3)(c) in conjunction with Article 27(4) of the Framework Decision, the ECJ added that where there is an offence other than that for which the person was surrendered, consent from the executing judicial authority must be obtained, in so far as ‘a penalty or measure involving deprivation of liberty is to be executed’. Prior to that, the issuing State may carry on with its criminal proceedings, but it may not enforce any penalty or measure involving deprivation of liberty, unless the imposition of such a penalty or measure results from other (unmodified) charges already contained in the arrest warrant.[140]

In Gataev and Gataeva,[141] the Supreme Court of Finland asked the ECJ to clarify the interaction between the Framework Decision and the Procedures Directive,[142] where a person whose surrender is requested under an arrest warrant, who is a national of a third country, has applied for asylum in the executing Member State and the application for asylum is in progress at the same time as the case concerning the execution of the arrest warrant. The ECJ granted the Finnish referring court’s request for a preliminary reference to be dealt with under the urgent preliminary ruling procedure. However, the ECJ did not have the opportunity to rule on the substance. Following the Supreme Court of Finland’s decision to withdraw its reference for a preliminary ruling, the case was removed from the register.[143]

By contrast, in Wolzenburg[144] Kita,[145] and Mantello,[146] the ECJ declined to set in train the urgent preliminary ruling procedure. In the former case, concerning the execution of an arrest warrant, the ECJ found that the defendant was no longer in prison and that the arrest and subsequent detention took place 18 months prior to the reference being made. In the second case which was subsequently removed from the register, Mr Kita, a Romanian national, was surrendered to Austrian authorities for the purpose of criminal proceedings, where he was convicted and sentenced to fifteen years in prison. In accordance with Article 5(3) of the Framework Decision, the Romanian authorities requested his return in order to serve his custodial sentence there. However, Mr Kita did not want to leave Austria, the Member State where his family lived. The question was thus whether Article 5(3) was to be interpreted as meaning that the return (transfer) of the sentenced person, surrendered earlier in accordance with a European arrest warrant for the purposes of criminal proceedings, to the State of which he was a national takes place automatically, even without his consent, although such consent is one of the conditions provided for by the European Convention on the Transfer of Sentenced Persons. It appears that the ECJ refused to apply Article 104b of the Rules of Procedure on the ground that the factual situation was not detrimental to Mr Kita. First, it was unlikely that Mr Kita could be let out on probation. Second, he was serving the sentence in Austria, i.e. close to his family.[147] Finally, Mantello concerned the execution by German authorities of an arrest warrant issued by Italian authorities in respect of Mr Mantello, who was charged with having participated in a criminal organisation involved in drug trafficking and with unlawful possession of cocaine. Finding that Mr Mantello was not detained and that the referring court itself had admitted that a swift treatment of the case was not strictly necessary – but it was requested on a precautionary basis –, the ECJ decided not to apply Article 104b of the Rules of Procedure.

       III.      Conclusion

A close examination of the cases decided under the accelerated procedure and the urgent preliminary ruling procedure reveals that the ECJ has followed clear and coherent criteria in identifying those cases where time is of the essence. The examples discussed above show that the ECJ will hear a case under the accelerated procedure or, where appropriate, under the urgent preliminary ruling procedure (1) where a delayed reply would adversely affect the family life of the parties in the main proceedings, (2) where the questions referred have a direct bearing on whether a person should be kept in prison or released, and (3) where, in the event of a person being detained and in light of the sensitivity of the questions referred, a delayed reply would be of no assistance to the referring court or would negatively affect the pursuit of proceedings before that court.

In the face of a relentless increase in the number of cases brought, such clear and coherent criteria should contribute to releasing some of the pressure resulting from the ECJ’s heavy workload by deterring national courts from making unfounded requests.

 

Annex:

Cases dealt with under the urgent preliminary ruling procedure

 

	Referring Court	EU act interpreted	Date on which the reference was received at the ECJ	Date on which the request was granted	Date of the hearing	Date of the judgment	Length of proceedings
Rinau,C-195/08 PPU	Supreme Court, Lithuania	Brussels II bis Regulation	14 May 2008(PPU request: 22 May 2008)	23 May 2008	26 et 27 June 2008	11 July 2008	50 days
Santesteban Goicoechea,C-296/08 PPU	Court of Appeal, Montpellier	Framework Decision on the European arrest warrant	3 July 2008	7 July 2008	6 August 2008	12 August 2008	40 days
Leymann et Pustovarov,C-388/08 PPU	Supreme Court, Finland	Framework Decision on the European arrest warrant	5 September 2008	11 September 2008	4 November 2008	1st December 2008	87 days
Kadzoev, C‑357/09 PPU(Grand Chamber)	Administrative Court, Sofia	Directive 2008/115/EC(the Return Directive)	7 September 2009(PPU request: 10 September 2009)	22 September 2009	27 October 2009	30 November 2009	81 days
Detiček,C-403/09 PPU	Court of Appeal, Maribor	Brussels II bis Regulation	20 October 2009	27 October 2009	7 December 2009	23 December 2009	64 days
Gataev and Gataeva,C-105/10 PPU	Supreme Court, Finland	Framework Decision on the European arrest warrant and Directive 2005/85/EC(the Procedure Directive)	25 February 2010	2 March 2010
Povse,C‑211/10 PPU	Supreme Court, Austria	Brussels II bis Regulation	3 May 2010	11 May 2010	14 June 2010	1 July 2010	59 days
McB.,C-400/10 PPU	Supreme Court,Ireland	Brussels II bis Regulation	6 August 2010	11 August 2010	20 September 2010	5 October 2010	60 days
Zarraga,C-491/10 PPU	Higher Regional Court,Celle	Brussels II bis Regulation	15 October 2010	28   October 2010	6 December 2010	22 December 2010	68 days
Mercredi,C-497/10 PPU	Court of Appeal,England & Wales	Brussels II bis Regulation	18 October 2010	28   October 2010	1 December 2010	22 December 2010	65 days
El DridiC-61/11 PPU	Court of Appeal, Trento	Directive 2008/115/EC(the Return Directive)	10 February 2011	17 February 2011	30 March 2011	28 April 2011	77 Days
Mohammad Imran,C-155/11 PPU	District Court, The Hague	Directive 2003/86/EC(the Family Reunification Directive)	11 April 2011	14 April 2011

 

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Линк към резюмето нa български език: ПРЕГЛЕД НА БЪРЗОТО И СПЕШНОТО ПРЕЮДИЦИАЛНО ПРОИЗВОДСТВО В ПРОСТРАНСТВОТО НА СВОБОДА, СИГУРНОСТ И ПРАВОСЪДИЕ

***

 

*President of Chamber at the European Court of Justice. All opinions expressed herein are personal to the author.

[1] See Article 23 of the Statute of the Court of Justice.

[2] See generally, C. Naômé, La procédure accélérée et la procédure préjudicielle d’urgence devant la Cour de justice des Communautés européennes (2009) Journal de droit européen 237; B. Chevalier, Les nouveaux développements de la procédure préjudicielle dans le domaine de l’espace judiciaire européen: la procédure préjudicielle d’urgence et les réformes principales prévues par le traité de Lisbonne (2009) ERA Forum 591; C. Barnard, The PPU : is it worth the candle ? An early assessment (2009) European Law Review 281; A. Rosas, Justice in Haste, Justice Denied ? The European Court of Justice and the Area of Freedom, Security and Justice (2008-2009) Cambridge Yearbook of European Legal Studies 9 ; K. Lenaerts, the Contribution of the European Court of Justice to the Area of Freedom, Security and Justice (2010) International & Comparative Law Quarterly 255.

[3] In that event, those mentioned in Article 23 of the Statute of the Court of Justice may, within a period prescribed by the President which shall not be less than fifteen days, lodge written observations, and the President may request them to restrict the matters addressed in their oral statements or written observations to the essential points of law raised by the question referred. Article 104a, paras 2–3, of the Rules of Procedure of the Court of Justice.

[4] See Case C‑127/08 Metock and Others, order of the President of the Court of 17 April 2008. As for the judgment of the ECJ, see Case C‑127/08 Metock and Others [2008] ECR I‑6241.

[5] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77.

[6] Case C‑127/08 Metock and Others, order of the President of the Court, supra note 4, paras 12-15.

[7] As regards the application concerning the accelerated procedure, see Case C-66/08 Kozłowski, order of 22 February 2008. As for the ECJ’s judgment, see Case C-66/08 Kozłowski [2008] ECR I-6041.

[8] Case C-66/08 Kozłowski, order of 22 February 2008, para. 10.

[9]Ibid.

[10]Ibid.

[11]Ibid.

[12]Ibid, para. 11.

[13] Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1.

[14]Ibid.

[15]Ibid, para. 12.

[16]Ibid, paras 5–7.

[17] C‑66/08 Kozłowski, supra note 7, paras 42–43.

[18]Ibid, para. 48

[19]Ibid. See also Case C-123/08 Wolzenburg [2009] ECR I-9621.

[20] Joined Cases C-188/10 and 189/10 Melki and Abdeli, judgment of 22 June of 2010, not yet reported.

[21] Case C-550/09 E and F, judgment of 29 June 2010, not yet reported.

[22] Case C-296/10 Purrucker II, judgment of 9 November 2010, not yet reported.

[23] However, such national legislation is not incompatible with Article 267 TFEU, provided that the other national courts or tribunals remain free ‘—to refer to the ECJ for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary, —to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the EU legal order, and —to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law’. Joined Cases C-188/10 and 189/10 Melki and Abdeli, supra note 20, para. 57.

[24] Article 215 (2) TFEU is the legal basis for the adoption of restrictive measures (e.g. economic sanctions) against international terrorists. This Treaty provision is to be found in Title IV (Restrictive Measures), Part V (External Action by the Union) of the TFEU.

[25] Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2001] OJ L 344/ 70.

[26] See Case C-550/09 E and F, order of the President of the Court of 1 March 2010, para. 11.

[27] Case C-296/10 Purrucker II, supra note 22.

[28] 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 [2003] OJ L338/1.

[29] In this regard, it is worth noting that at first, the referring court requested the case to be dealt with under the urgent preliminary ruling procedure, while also insisting on having the Second Chamber, which decided Purrucker I, ruling on Purrucker II. However, since the Second Chamber was not the PPU Chamber for the year 2009-2010, the only possible way of accommodating both requests (expediency and continuity) was to apply the accelerated procedure. That is why the referring court subsequently modified its request, asking the ECJ to treat the case in accordance with Article 104a of the Rules of Procedure. See Case C-264/10 Purrucker II, supra note 22, para. 52; order of the President of the Court of 15 July 2010, para. 4

[30] Case C-256/09 Purrucker I, judgment of 15 July 2010, not yet reported.

[31] Ibid, paras 82 et seq.

[32] Case C-264/10 Purrucker II, order of the President of the Court of 15 July 2010.

[33] Case C-296/10 Purrucker II, supra note 22, paras 73-77. But the ECJ stressed that it is not the nature of the proceedings before a national court that determines the application of the litispendance rule contained in Article 19 of the Brussels II bis Regulation. For example, prior to ruling on the substance of the matter, national law may require the adoption of provisional measures. Hence, the application of Article 19 of that Regulation requires national courts to engage in a comparative analysis of the claims of the respective applicants. To that effect, if the facts of the case and the claim of the applicant reveal no elements indicating that the court first seised is called upon to exercise its substantive jurisdiction, then the litispendance rule contained in Article 19 does not apply.

[34]Ibid, paras 70-71.

[35] Case C-256/09 Purrucker I, supra note 30, para. 61.

[36]See Council Decision 2008/79/EC, Euratom of 20 December 2007 amending the Protocol on the Statute of the Court of Justice [2008] OJ L24/42; and Amendments to the Rules of Procedure of the Court of Justice [2008] OJ L24/39.

[37] See Case C-375/08 Pontini, judgment of 24 June 2010, not yet reported.

[38] Alternatively, the referring court also requested the case to be dealt with under the accelerated procedure. But again the President of the Court declined to hear the case under that procedure, ruling that, while the request was drafted on 8 May 2008, it only reached the ECJ on 18 August 2008. In addition, he pointed out that the fact that criminal proceedings are brought against the parties in the main proceedings is not a sufficient basis in itself to request the case to be dealt with under the accelerated procedure. See Case C-375/08 Pontini, order of the President of the Court of 29 September 2008, paras 9-11.

[39] In the urgent preliminary ruling procedure, only the parties to the main proceedings, the Member State of the court making the reference, the Commission and, if appropriate, the Council and the European Parliament, if one of their measures is at issue, are authorised to lodge written observations in the language of the case within a short period of time. The other interested parties and, in particular, the Member States other than that of the referring court, are not given the opportunity to submit written observations, but they are invited to a hearing at which they may submit their oral observations on the questions referred by the national court and on the written observations related thereto. See Article 104b(2)-(3) of the Rules of Procedure of the Court of Justice.

[40] The President of Court requested for the first time the case to be dealt with under the urgent preliminary ruling procedure in Case C-491/10 PPU Zarraga, judgment of 22 December 2010, not yet reported, para. 38.

[41]If that Chamber decides to grant the request for the urgent preliminary ruling procedure to be applied, it will proceed to give its ruling at the close of the oral stage of the proceedings after hearing the Advocate General. See Article 104b(5) of the Rules of Procedure.

[42]Communication between the ECJ and the national courts, the parties to the main proceedings, the Member States and the EU institutions will, as far as possible, be conducted electronically. Court of Justice Information for the Press No 12/08 of 3 March 2008, available at the ECJ’s website, http://curia.europa.eu.

[43] See Annex.

[44] Case C‑195/08 PPU Rinau [2008] ECR I‑5271.

[45] Case C-195/08 PPU Rinau, supra note 44, para. 44.

[46]Ibid.

[47]Ibid, para. 45.

[48]Ibid, para. 46. The referring court submitted the reference on 30 April 2008, and the ECJ’s ruling was delivered on 11 July 2008.

[49]Ibid, para. 89.

[50] Case C-403/09 PPU Detiček, judgment of 23 December 2009, not yet reported.

[51] Case C‑211/10 PPU Povse, judgment of 1 July 2010, not yet reported.

[52] Case C-400/10 PPU McB., judgment of 5 October 2010, not yet reported.

[53] Case C-491/10 PPU Zarraga, supra note 40.

[54] Case C-497/10 PPU Mercredi, judgment of 22 December 2010, not yet reported.

[55] Case C-403/09 PPU Detiček, supra note 50, para. 30.

[56]The referring court submitted the reference on 19 October 2009, and the ECJ’s ruling was delivered on 23 December 2009.

[57] Case C-403/09 PPU Detiček, supra note 50, para. 47.

[58]Ibid, para. 49.

[59]Ibid, para. 57.

[60]The referring court submitted the reference on 20 April 2010, and the ECJ’s ruling was delivered on 1 July 2010.

[61] Case C‑211/10 PPU Povse, supra note 51, paras 45-45.

[62]Ibid, para. 46.

[63]Ibid, para. 47.

[64]Ibid, paras 48-49.

[65]Ibid, para. 61.

[66]Ibid, para. 62.

[67]Ibid, para. 64.

[68]Ibid, para. 70.

[69]Ibid, para. 81.

[70] Case C-400/10 PPU McB., supra note 52, para. 48. In accordance with Irish law, the natural father is required to reach an agreement with the mother or to obtain a court judgment.

[71]Ibid, para. 25.

[72]The referring court submitted the reference on 30 July 2010, and the ECJ’s ruling was delivered on 5 October 2010.

[73]Ibid, paras 28-29.

[74]Ibid, para. 41.

[75]Ibid, para. 43.

[76]Ibid, para. 44.

[77] In this regard, Mr McB. argued that ‘rights of custody’ should be interpreted as meaning that such rights are acquired by a natural father by operation of law in a situation where he and his children have a family life which is the same as that of a family based on marriage. Ibid, para. 47.

[78]Ibid, para. 53. The only difference is that, whilst Article 7 of the Charter refers to ‘the right to respect for his or her communications’, the wording of Article 8 ECHR uses the expression ‘the right to respect for his correspondence’.

[79] This is so notwithstanding the fact that EU law may grant a greater protection. See Article 52(3) of the Charter.

[80] See Guichard v. France ECHR 2003-X 714; see also, to that effect, Balbontin v.United Kingdom, no.39067/97, 14 September 1999.

[81] Case C-400/10 PPU McB., supra note 52, para. 54.

[82]Ibid, para. 55.

[83]Ibid, para. 62.

[84]Ibid, para. 58.

[85] Case C-491/10 PPU Zarraga, supra note 40, para. 39.

[86]Ibid, paras 43 to 45.

[87]Ibid, para. 46.

[88]Ibid, para. 48.

[89]Ibid, paras 54 and 57.

[90] As to Article 24(1) of the Charter, the ECJ ruled that ‘while remaining a right of the child, hearing the child cannot constitute an absolute obligation, but must be assessed having regard to what is required in the best interests of the child in each individual case’. Ibid, para. 64.

[91]Ibid, para 71.

[92] Case C-497/10 PPU Mercredi, supra note 54, paras 39 and 40. The referring court submitted the reference on 8 October 2010, and the ECJ’s ruling was delivered on 22 December 2010.

[93]Ibid, para. 45.

[94] Case C‑523/07 A [2009] ECR I‑2805.

[95] Case C-497/10 PPU Mercredi, supra note 54, para. 47.

[96]Ibid, para. 56.

[97]Ibid, para. 51.

[98]Ibid, paras 60 and 61.

[99]Ibid, paras 65 and 66.

[100]Ibid, paras 68 to 70.

[101] Case C-357/09 PPU Kadzoev [2009] ECR I-11189.

[102] Case C-61/11 PPU El Dridi, judgment of 28 April 2011, not yet reported.

[103] Case C-155/11 PPU Mohammad Imran, order of 10 June 2011, not yet reported.

[104] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L 348/98.

[105] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L 251/12.

[106] In essence, the Sofia City Administrative Court asked four questions: [1] Must the maximum duration of detention laid down in Article 15 include a period of detention completed before the rules in Directive 2008/115 became applicable? [2] When calculating the period of detention for the purposes of removal under Articles 15 (5) and (6) of Directive 2008/115, must the period during which the execution of the removal decision was suspended because of the examination of an application for asylum of (or because of judicial review proceedings brought against the decree of deportation by) a third country national who is being held in a detention facility be taken into account? [3] Does the concept of ‘reasonable prospect of removal’ remain relevant after the expiration of the period laid down in Articles 15 (5) and 15 (6)? [4] May grounds of public order and public safety be put forward by national authorities to keep a person in a detention facility?

[107] Case C-357/09 PPU Kadzoev, supra note 101, para. 32.

[108] This was the first time that Directive 2008/115 was interpreted by the ECJ.

[109]The referring court submitted the reference on 10 August 2009, and the ECJ’s ruling was delivered on 30 November 2009.

[110] Case C-357/09 PPU Kadzoev, supra note 101, para. 39.

[111]Ibid, para. 47.

[112]Ibid, para. 53.

[113]Ibid, para. 61.

[114]Ibid, para. 66.

[115]Ibid, para. 70. It is worth nothing that, as a result of the ruling of the ECJ, Mr Kadzoev was released on 3 December 2009. Information available at: http://lcrien.wordpress.com/2009/12/03/said-kadzoev-has-been-released-from-the-busmantsi-detention-centre/.

[116] Case C-61/11 PPU El Dridi, supra note 102.

[117]Ibid, para. 28. The referring court submitted the reference on 2 February 2011, and the ECJ’s ruling was delivered on 28 April 2011.

[118] Case C-61/11 PPU El Dridi, supra note 102, para. 36.

[119]Ibid, para. 38.

[120]Ibid, paras 39 and 40.

[121]Ibid, para. 58

[122] SeeView of AG Mazák in Case C-61/11 PPU El Dridi, supra note 102, delivered on 1 April 2011, not yet reported, para. 40.

[123]Case C-61/11 PPU El Dridi, supra note 102, para. 59.

[124]Ibid, para. 62. The same question was, in essence, referred in Cases C-140/11 Ngagne; C-94/11 Godwin; C-63/11 Austine; C-60/11 Mrad; C-50/11 Emegor; C-43/11 Samb, and C-113/11 Cherni (all removed from the register). Accordingly, after the ECJ delivered its ruling in El Dridi, a letter from the Registrar of the Court was sent to the referring courts, asking them whether, in light of that ruling, they still wished to maintain their orders for reference. Since the latter replied in the negative, those cases were removed from the register.

[125] Joined Cases C‑261/08 and C‑348/08 Zurita García [2009] ECR I-10143.

[126] Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L105/1.

[127] See Barnard, supra note 2, at 286.

[128] Case C-296/08 PPU Santesteban Goicoechea [2008] ECR I-6307.

[129] Case C-388/08 PPU Leymann and Pustovarov [2008] ECR I-8993.

[130] Case C-105/10 PPU Gataev and Gataeva (removed from the register).

[131] Case C-296/08 PPU Santesteban Goicoechea, supra note 128, para. 33.

[132]The referring court submitted the reference on 3 July 2008, and the ECJ’s ruling was delivered on 12 August 2008.

[133] Case C-296/08 PPU Santesteban Goicoechea, supra note 128,para. 63.

[134]Ibid, para. 81.

[135] Case C-388/08 PPU Leymann and Pustovarov, supra note 129, para. 38.

[136] The referring court submitted the reference on 5 September 2008, and the ECJ’s ruling was delivered on 1 December 2008.

[137] Case C-388/08 PPU Leymann and Pustovarov , supra note 129, para. 36.

[138]Ibid, para. 57.

[139]Ibid, para. 62.

[140]Ibid, para. 76.

[141] Case C-105/10 PPU Gataev and Gataeva (removed from the register).

[142] Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for Granting And Withdrawing Refugee Status [2005] OJ L 326/13.

[143] See order of the President of the Third Chamber of 3 April 2010.

[144] Case C‑123/08 Wolzenburg, supra note 19.

[145] Case C-264/10 Kita (removed from the register).

[146] Case C-261/09 Mantello, judgment of 16 November 2010, not yet reported.

[147] Subsequently, the ECJ also rejected the request for the case to be dealt with under the accelerated procedure. See Case C-264/10 Kita, order of the President of the Court of 15 July 2010.