Information Note on the Court’s case-law No. 138
February 2011
Karoussiotis v. Portugal - 23205/08
Judgment 1.2.2011 [Section II]
Article 35
Article 35-2
Same as matter submitted to other procedure
Application to the Court when individual complaint to European Commission pending: admissible
Facts – The case concerned proceedings for the return of a child unlawfully removed from Germany to Portugal and the custody of that child. In March 2005 the applicant, a German national, requested the assistance of the German authorities to secure the child’s return, as provided for in the Hague Convention. In 2009 a Portuguese court of appeal found that the child was being kept in Portugal illegally but, having regard to European Council Regulation EC 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility), considered that it was in the best interests of the child that he should stay in Portugal. The custody proceedings, which had opened in March 2005, are still pending before the Portuguese courts. In April 2008 the applicant brought “infringement proceedings” against Portugal before the European Commission for violation of Regulation EC 2201/2003 because of the excessive length of the proceedings before the Portuguese courts. Those proceedings are also still pending.
Law – Admissibility:
The existence of a similar application before the European Commission: The similarity of the facts and complaints submitted by the applicant to the Court and to the European Commission was undeniable.
It had to be ascertained whether the proceedings before the latter body could be considered, from the procedural viewpoint and that of their potential effects, as an individual application within the meaning of Article 34 of the Convention. Any individual could challenge a member State by lodging a complaint with the European Commission against a measure or practice attributable to a member State deemed by the complainant to be in breach of a provision or legal principle of the European Union. The complaint was ruled admissible if it related to a violation of Community law by a member State. According to the settled case-law of the European Court of Justice, the European Commission had discretion to launch infringement proceedings before the Court of Justice of the European Union. The sole purpose of “infringement proceedings” or “pre-litigation proceedings” was to secure voluntary compliance by the member State concerned with the requirements of European Union law. As regards an action for breach of Community law, if the Court of Justice were to deliver a judgment for breach, it would be able to order the member State concerned to pay a lump sum or a fine up to the amount indicated by the Commission with a view to obliging it to comply with Community law. Thus, any such judgment would have no effect on the complainant’s rights as the result would not be to settle an individual situation. For any request for individual redress, the complainant would have to go through the national courts. That is why the complainant did not have to establish that he or she had legal standing and was principally and directly concerned by the breach in question. Having regard to the foregoing, that procedure could not be compared, from either the procedural viewpoint or that of its potential effects, with an individual application under Article 34. When the European Commission ruled, as in the instant case, on a complaint lodged by an individual, it did not constitute a “procedure of international investigation or settlement” for the purposes of Article 35 § 2 (b) of the Convention.
Conclusion: preliminary objection dismissed (unanimously).
The Court also joined to the merits and rejected the Government’s preliminary objection concerning the failure to exhaust domestic remedies; it also found that there had been a violation of Article 8.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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