FranklinWillemen/mapa_plus huggingface dataset:
Furthermore , if , in exceptional circumstances , a breach of the rules on lis pendens occurs as a result of ignorance of the applicable regulations and of the Court ’ s case-law or if the breach has resulted in harm to more important procedural rights such as those which , for example , ensure that the views of the parent with whom the child does not live are expressed ( 72 ) and that judgments are delivered within a reasonable time , it seems to me that it would be justifiable to invoke non-recognition on the basis of an infringement of public policy in the Member State in which recognition is sought involving fundamental rights recognised under EU law . 95 .
Finally , it should be recalled that the opportunity to bring infringement proceedings can be examined by the Commission , ( 73 ) in the event of the misapplication of national law or EU law or the failure of the system of legal remedies in each Member State , together with the preliminary ruling procedure provided for in Article 267 TFEU , which must be implemented in order to prevent a breach of public policy occurring . ( 74 ) IV .
Conclusion 96 .
In the light of the foregoing considerations , I propose that the Court answer the questions referred for a preliminary ruling by the Corte suprema di cassazione ( Supreme Court of Cassation , Italy ) as follows : Article 35 ( 3 ) of Council Regulation ( EC ) No 44 / 2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Article 24 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 must be interpreted as precluding that a breach of the rules on lis pendens , contained in Article 27 of Regulation No 44 / 2001 and Article 19 of Regulation No 2201 / 2003 , by the court second seised should constitute a ground for withholding recognition of a judgment delivered by that court , on the basis of an infringement of public policy of the Member State in which recognition is sought . 1 Original language : French . 2 OJ 2003 L 338 , p . 1 . 3 C ‑ 455 / 15 PPU , EU : C : 2015 : 763 ( ‘ the judgment in P ’ ) . 4 For the need to refer to this regulation , see points 43 and 44 of this Opinion . 5 OJ 2001 L 12 , p . 1 . 6 GURI No 306 , 3 December 1970 , p . 8046 . 7 Final judgment No 1072 of the Curtea de Apel București ( Bucharest Court of Appeal , Romania ) , 3rd Civil Chamber for Minors and Family , of 12 June 2013 , annexed to the decision to refer and produced by Mr Liberato , states that ‘ the court found that the parties married in Italy in October 2005 and lived , alternately , in Romania and Italy until October 2006 .
The parties have been separated since then and the wife and minor child born of the relationship live exclusively in Romania .
Thus , since 2006 , Ms Grigorescu has lived exclusively in Romania , which has been her sole residence ’ .
It is clear from the decision to refer that the lawfulness of the removal or non-return of the child is not a matter at stake in the arguments . 8 The referring court has confirmed that the judgment acquired the force of res judicata . 9 For further details of the reasoning given , see point 61 of this Opinion . 10 OJ 2009 L 7 , p . 1 . 11 According to the third subparagraph of Article 76 of Regulation No 4 / 2009 , the regulation applied from 18 June 2011 . 12 My proposed reformulation of the question is similar to that carried out by the Court in the judgment of 15 February 2017 , W and V ( C ‑ 499 / 15 , EU : C : 2017 : 118 , paragraphs 44 to 46 and the case-law cited ) . 13 The principal claim was brought on 22 May 2007 before the Tribunale di Teramo ( District Court , Teramo ) , which deferred examination of the dependent claims by a decision of 19 January 2012 and ruled on them by a non-definitive decision of 8 July 2013 . 14 It should be noted that the requirement to observe the priority of proceedings according to the time at which they are brought also appears in Regulation No 4 / 2009 , in Article 12 thereof .
This article could be said to be stricter than Article 19 of Regulation No 2201 / 2003 , at least in the French version , in that it requires three elements to be identical ( in French : ‘ le même objet … la même cause … les mêmes parties ’ ) .
[ Note , however , that the English version of the said Article 12 renders this simply as ‘ the same cause of action and between the same parties ’ . ]
The same is true of Article 17 of three other regulations , these being : Regulation ( EU ) No 650 / 2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction , applicable law , recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession ( OJ 2012 L 201 , p . 107 ) ; Council Regulation ( EU ) 2016 / 1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction , applicable law and the recognition and enforcement of decisions in matters of matrimonial property ( OJ 2016 L 183 , p . 1 ) ; and Council Regulation ( EU ) 2016 / 1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction , applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships ( OJ 2016 L 183 , p . 30 ) .
The latter two regulations require that , where proceedings are stayed due to lis pendens , ‘ upon request by a court seised of the dispute , any other court seised shall without delay inform the former court of the date when it was seised ’ .
Article 29 of Regulation ( EU ) No 1215 / 2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( OJ 2012 L 351 , p . 1 ) , is worded in a similar way .
It should be noted that the mechanism provided for in Article 33 of that regulation in the event of extra-European lis pendens , which amounts to a major innovation , is not the same . 15 Regulation No 2201 / 2003 repealed Council Regulation ( EC ) No 1347 / 2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses ( OJ 2000 L 160 , p . 19 ) .
Article 11 ( 2 ) of Regulation No 1347 / 2000 contains an exception from the requirement for the cause of action and parties to be identical only in the case of divorce . 16 Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ( OJ 1998 C 27 , p . 1 ) , as modified by successive conventions relating to the accession of new Member States to the convention . 17 See judgment of 6 October 2015 , A ( C ‑ 489 / 14 , EU : C : 2015 : 654 , paragraph 27 ) . 18 See judgment of 6 October 2015 , A ( C ‑ 489 / 14 , EU : C : 2015 : 654 , paragraph 29 ) . 19 See judgment of 6 October 2015 , A ( C ‑ 489 / 14 , EU : C : 2015 : 654 , paragraph 30 ) . 20 See judgment of 6 October 2015 , A ( C ‑ 489 / 14 , EU : C : 2015 : 654 , paragraph 34 ) .
This interpretation , inspired by that of Article 27 of Regulation No 44 / 2001 , is equally applicable to Article 19 ( 2 ) of Regulation No 2201 / 2003 .
This solution enables cases to be resolved where the court first seised has not expressly ruled on its own jurisdiction . 21 See judgment of 9 November 2010 , Purrucker ( C ‑ 296 / 10 , EU : C : 2010 : 665 , paragraph 81 ) .
In that regard , the European Judicial Network in civil and commercial matters ( EJNCCM ) plays a key role in simplifying and accelerating judicial cooperation in applying these provisions relating to lis pendens or Article 15 of Regulation No 2201 / 2003 . 22 The same is true of Article 27 of Regulation No 44 / 2001 , by contrast with the provisions applicable in the event of related actions ( Article 28 of that regulation ) .
It should be noted that Regulation No 2201 / 2003 , as with the preceding Regulation No 1347 / 2000 , does not contain any particular provision on related actions . 23 See judgment of 6 October 2015 , A ( C ‑ 489 / 14 , EU : C : 2015 : 654 , paragraph 29 and the case-law cited ) . 24 See judgment of 9 November 2010 , Purrucker ( C ‑ 296 / 10 , EU : C : 2010 : 665 , paragraph 66 and the case-law cited ) . 25 C ‑ 489 / 14 , EU : C : 2015 : 654 .
It should be noted that that judgment was delivered more than two years after the final decision of the Romanian court in the case in the main proceedings .
However , at that date , the autonomous nature of the concept of ‘ lis pendens ’ had already been stated in several judgments of the Court . 26 Paragraph 33 of that judgment .
Such cases can also be categorised as ‘ quasi lis pendens ’ or ‘ false lis pendens ’ .
That expression was used by Borrás , A . , in the Explanatory Report on the Convention , drawn up on the basis of Article K .3 of the Treaty on European Union , on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters ( OJ 1998 C 221 , p . 27 , in particular paragraph 54 ) .
That explanation relates to Article 11 of Regulation No 1347 / 2000 , which is essentially repeated in Article 19 of Regulation No 2201 / 2003 in a simplified form , requiring only that proceedings relating to divorce , legal separation or marriage annulment are brought between the same parties , regardless of their procedural position . 27 See , to that effect , Gaudemet-Tallon , H . , ‘ Divorce — Divorce prononcé en France — Introduction — Compétence des tribunaux français — Particularités de l ’ instance ’ , JurisClasseur — Droit international , LexisNexis , Paris , March 2017 , fascicle 547 - 10 , in particular paragraph 135 . 28 See , in relation to the interpretation of these concepts , judgment of 9 November 2010 , Purrucker ( C ‑ 296 / 10 , EU : C : 2010 : 665 , paragraphs 67 and 68 and the case-law cited ) .
See also , by way of illustration , judgment of 22 December 2010 , Mercredi ( C ‑ 497 / 10 PPU , EU : C : 2010 : 829 , paragraphs 68 and 69 ) . 29 The same is true when , under Article 15 of Regulation No 2201 / 2003 , at the initiative of either of the courts concerned , the jurisdiction of the court better placed to hear the case is given priority . 30 In relation to the importance of this examination in matters of parental responsibility and the grounds for decisions made on that point , see judgments of 15 July 2010 , Purrucker ( C ‑ 256 / 09 , EU : C : 2010 : 437 , paragraph 73 and the case-law cited ) , and 15 February 2017 , W and V ( C ‑ 499 / 15 , EU : C : 2017 : 118 , paragraphs 51 and 54 ) .
In relation to the obligation to carry out the examination at all stages of proceedings , a comparison can be drawn with the judgment of 12 November 2014 , L ( C ‑ 656 / 13 , EU : C : 2014 : 2364 , paragraph 58 and the case-law cited ) , and the case in IQ ( C ‑ 478 / 17 ) , currently pending , concerning the conditions for the application of Article 15 of Regulation No 2201 / 2003 .
See Opinion of Advocate General Wathelet in that case ( C ‑ 478 / 17 , EU : C : 2018 : 552 ) . 31 Under Article 12 ( 1 ) of Regulation No 2201 / 2003 , prorogation of jurisdiction assumes that the mother has not challenged the jurisdiction of the Italian court ( see point 23 of this Opinion ) and that the Italian court has ensured that its jurisdiction is in the best interests of the child ( see , by analogy , judgment of 1 October 2014 , E .
( C ‑ 436 / 13 , EU : C : 2014 : 2246 , paragraph 44 ) ) .
This can be compared to the order of the President of the Court of 16 January 2018 , PM ( C ‑ 604 / 17 , not published , EU : C : 2018 : 10 , paragraphs 27 to 29 ) , and the judgment of 19 April 2018 , Saponaro and Xylina ( C ‑ 565 / 16 , EU : C : 2018 : 265 , paragraphs 23 , 24 and 33 to 35 and the case-law cited ) . 32 See footnotes 25 and 26 of this Opinion . 33 The consequences of the legal separation judgment do not appear to have been debated , although two further judgments were given in Romania after that date , namely the judgment of 3 December 2012 and the judgment of 12 June 2013 rejecting Mr Liberato ’ s appeal . 34 According to Article 12 ( 2 ) ( a ) of Regulation No 2201 / 2003 , prorogation of jurisdiction ceases as soon as judgment relating to the legal separation becomes final .
In addition , as the Court noted in the judgment of 28 June 2018 , HR ( C ‑ 512 / 17 , EU : C : 2018 : 513 , paragraph 59 and the case-law cited ) , concerning the interpretation of Article 8 ( 1 ) of Regulation No 2201 / 2003 , ‘ the EU legislature considers that the courts geographically closest to the child ’ s place of habitual residence are generally the best placed to assess the measures to be taken in the interests of that child ’ . 35 The Court has not expressly ruled on the application of that provision .
See , to the same effect , the Opinion of Advocate General Wathelet in IQ ( C ‑ 478 / 17 , EU : C : 2018 : 552 , point 45 ) .
That interpretation may be a result of the commentary of Pataut , É . , and Gallant , E . , ‘ Article 12 : Prorogation of jurisdiction ’ , in Magnus , U . , and Mankowski , P . , European Commentaries on Private International Law , Brussels IIbis Regulation , Vol .
IV , Sellier European Law Publishers , Otto Schmidt , Cologne , 2017 , paragraph 41 ( p . 160 ) .
That scenario is not considered by Joubert , N . , in ‘ Autorité parentale — Conflits de juridictions ’ , JurisClasseur — Droit international , LexisNexis , Paris , March 2009 , fascicle 549 - 20 , in particular paragraph 44 . 36 That analysis must be compared to that in the judgments of 1 October 2014 , E .
( C ‑ 436 / 13 , EU : C : 2014 : 2246 , paragraphs 45 to 47 and 49 ) , and of 15 February 2017 , W and V ( C ‑ 499 / 15 , EU : C : 2017 : 118 , paragraphs 51 and 52 ) . 37 In my opinion , it must be clear from the judgment delivered by the last Italian court that its ruling was given following an examination , with regard to the best interests of the child , of the prorogation of jurisdiction allowed after the first Italian court was seised in 2007 . 38 By way of reminder , the parties must be identical in relation to maintenance matters .
In relation to the matrimonial matter , the Italian court delivered a final judgment . 39 C ‑ 497 / 10 PPU , EU : C : 2010 : 829 . 40 See paragraphs 68 and 69 of that judgment . 41 See paragraph 70 of that judgment . 42 C ‑ 497 / 10 PPU , EU : C : 2010 : 829 . 43 On why a divorce judgment is not irreconcilable with a legal separation judgment , see the Explanatory Report of Borrás , A . , cited in footnote 26 , in particular paragraph 71 . 44 The same is true in relation to maintenance matters .
Article 34 ( 1 ) and Article 35 ( 3 ) of Regulation No 44 / 2001 apply . 45 The contested decision had been delivered by the court first seised .
The dispute related to the place of residence of the child and , therefore , to the jurisdiction of that court which was alleged to have ruled in breach of the obligations in Article 15 of Regulation No 2201 / 2003 . 46 C ‑ 681 / 13 , EU : C : 2015 : 471 ( paragraphs 40 to 42 and 44 ) . 47 Paragraph 35 of the judgment in P . 48 Paragraph 36 of the judgment in P .
Very recently , the Court recalled in the judgment of 15 February 2017 , W and V ( C ‑ 499 / 15 , EU : C : 2017 : 118 , paragraph 50 and the case-law cited ) , that the principle of mutual recognition of judicial decisions is the ‘ cornerstone for the creation of a genuine judicial area ’ , those terms being taken from recital 2 of Regulation No 2201 / 2003 . 49 Such a prohibition features in most regulations since it is an integral element of the principle of mutual trust .
See , in particular , Article 45 ( 3 ) of Regulation No 1215 / 2012 and Article 39 of Regulations 2016 / 1103 and 2016 / 1104 .
The Court regards it as a fundamental principle ; see judgment of 28 March 2000 , Krombach ( C ‑ 7 / 98 , EU : C : 2000 : 164 , paragraph 31 ) . 50 See paragraph 42 of the judgment in P . 51 In making such reference , the wording of that article differs from Article 35 ( 3 ) of Regulation No 44 / 2001 , which is worded in general terms : ‘ … the jurisdiction of the court of the Member State of origin may not be reviewed .
The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction ’ . 52 See paragraph 45 of the judgment in P . 53 See judgment of 28 June 2018 , HR ( C ‑ 512 / 17 , EU : C : 2018 : 513 , paragraph 59 and the case-law cited ) . 54 See paragraph 46 of the judgment in P , reiterating an established rule prohibiting the revision of a judgment ( see , in particular , Article 36 and Article 45 ( 2 ) of Regulation No 44 / 2001 and Article 26 of Regulation No 2201 / 2003 ) . 55 Expression used in the judgments of 16 July 2009 , Hadadi ( C ‑ 168 / 08 , EU : C : 2009 : 474 , paragraph 56 ) , and of 9 October 2014 , C ( C ‑ 376 / 14 PPU , EU : C : 2014 : 2268 , paragraph 37 ) . 56 See , by way of illustration , the judgment in P and the judgment of 15 February 2017 , W and V ( C ‑ 499 / 15 , EU : C : 2017 : 118 ) .
See , also , the observations of Joubert , N . , in ‘ La résidence de l ’ enfant du divorce face à la demande de modification de la décision relative à la garde et aux aliments ’ , Revue critique de droit international privé , Dalloz , Paris , 2018 , pp . 138 to 142 , in particular paragraph 9 ( pp . 140 and 141 ) . 57 Given the importance of this question , like the one dealt with in the judgment in P , an addition could be proposed in relation to Article 24 when Regulation No 2201 / 2003 is recast .
It should be noted that no amendment to the rules on jurisdiction was made in the initial draft , namely the proposal for a Council regulation on jurisdiction , the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility , and on international child abduction ( COM ( 2016 ) 411 final ) , nor in the European Parliament legislative resolution of 18 January 2018 on that proposal , available at the following address : http : / / www.europarl.europa.eu / sides / getDoc.do ?
pubRef = - / / EP / / TEXT + TA + P8 - TA - 2018 - 0017 + 0 + DOC + XML + V0 / / EN .
For the latest state of Council discussions relating to this project , see Europe Daily Bulletin No 12033 , Agence Europe , 5 June 2018 , p . 2 . 58 See footnote 51 of this Opinion . 59 See paragraphs 35 to 39 of that judgment and the judgment of 16 July 2015 , Diageo Brands ( C ‑ 681 / 13 , EU : C : 2015 : 471 ) , cited in paragraphs 37 and 39 of the judgment in P , which allows the same solution to be applied in maintenance matters , governed by Regulation No 44 / 2001 . 60 In relation to Regulation No 44 / 2001 , see , by way of recent illustration , judgment of 25 May 2016 , Meroni ( C ‑ 559 / 14 , EU : C : 2016 : 349 , paragraphs 38 to 42 and the case-law cited ) . 61 See paragraph 39 of the judgment in P .
See also point 93 of this Opinion . 62 See paragraph 53 of the judgment in P . 63 See judgments of 28 March 2000 , Krombach ( C ‑ 7 / 98 , EU : C : 2000 : 164 ) , and of 2 April 2009 , Gambazzi ( C ‑ 394 / 07 , EU : C : 2009 : 219 ) , compared to the judgment of 25 May 2016 , Meroni ( C ‑ 559 / 14 , EU : C : 2016 : 349 ) . 64 By way of illustration of the way in which delaying tactics are favoured by the assimilation of separation to divorce and by delays in dealing with a divorce application as a result of the rule on lis pendens , see Bonomi , A . , ‘ La compétence internationale en matière de divorce , quelques suggestions pour une ( improbable ) révision du règlement Bruxelles II bis ’ , Revue critique de droit international privé , Dalloz , Paris , 2017 , pp . 511 to 534 , in particular pp . 528 to 530 ( heading ( a ) ) and the reference , in footnote 80 , to the commentary of Mankowski , P . , ‘ Article 19 : Lis pendens and dependent actions ’ , in Magnus , U . , and Mankowski , P . , op . cit . , paragraph 37 ( pp . 249 and 250 ) . 65 See , to that effect , judgment of 16 July 2015 , Diageo Brands ( C ‑ 681 / 13 , EU : C : 2015 : 471 , paragraph 40 ) . 66 That interpretation will need to be taken in combination with judgments already delivered by the Court in relation to Regulation No 4 / 2009 applicable to maintenance matters since 18 June 2011 . 67 See point 50 of this Opinion . 68 See , on that point , the very interesting proposals made by Niboyet , M .
- L . , and de Geouffre de la Pradelle , G . , Droit international privé , 6th edition , Librairie générale de droit et de jurisprudence , ‘ Manuels ’ Collection , Paris , 2017 , paragraphs 621 and 622 ( pp . 424 to 426 ) . 69 In relation to the limitations on staying proceedings due to lis pendens determined by the Court for situations where there has been a lack of response from the court first seised , see , by way of illustration , judgment of 9 November 2010 , Purrucker ( C ‑ 296 / 10 , EU : C : 2010 : 665 , paragraphs 82 to 84 ) .
See also a more pronounced assertion of this principle in the Council proposal to recast Regulation No 2201 / 2003 , cited in footnote 57 of this Opinion . 70 It should be noted that , in the present case , which relates to parental responsibility and maintenance applications made in respect of a child who was born in February 2006 and who has been living in Romania since October 2006 , proceedings have been pending in Italy for 11 years ( after proceedings were brought in May 2007 , the first judgment on the substance of the case was given in July 2013 , after a deferral in January 2012 ) and that the dispute relates to the recognition of a judgment delivered in Romania which became final five years ago ( 12 June 2013 ) . 71 For a reminder of the general principle in cases where Article 15 of Regulation No 2201 / 2003 applies , see , in particular , judgment of 27 October 2016 , D .
( C ‑ 428 / 15 , EU : C : 2016 : 819 , paragraph 43 ) . 72 This can be compared to paragraph 44 of the judgment of 28 March 2000 , Krombach ( C ‑ 7 / 98 , EU : C : 2000 : 164 ) , which states that ‘ recourse to the public-policy clause must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention [ of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters , as amended by subsequent conventions relating to the accession of new Member States to that convention ] itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin , as recognised by the [ European Convention for the Protection of Human Rights and Fundamental Freedoms , signed in Rome on 4 November 1950 ] ’ , and the judgment of 25 May 2016 , Meroni ( C ‑ 559 / 14 , EU : C : 2016 : 349 , paragraphs 44 to 46 and the case-law cited ) . 73 See judgment of 16 July 2015 , Diageo Brands ( C - 681 / 13 , EU : C : 2015 : 471 , paragraph 55 ) . 74 See judgment of 25 May 2016 , Meroni ( C - 559 / 14 , EU : C : 2016 : 349 , paragraph 47 and the case-law cited ) .