FranklinWillemen/mapa_plus huggingface dataset:
At the conclusion of my analysis , I will propose that it should be held , primarily , and consistently with the judgment of 19 November 2015 , P , ( 3 ) that Article 35 ( 3 ) of Council Regulation ( EC ) No 44 / 2001 ( 4 ) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 5 ) and Article 24 of Regulation No 2201 / 2003 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 .
Legal context A .
European Union law 1 .
Regulation No 44 / 2001 5 .
Article 5 ( 2 ) of Regulation No 44 / 2001 provides : ‘ A person domiciled in a Member State may , in another Member State , be sued : 2 .
in matters relating to maintenance , in the courts for the place where the maintenance creditor is domiciled or habitually resident or , if the matter is ancillary to proceedings concerning the status of a person , in the court which , according to its own law , has jurisdiction to entertain those proceedings , unless that jurisdiction is based solely on the nationality of one of the parties . ’ 6 .
Article 27 of that regulation is worded as follows : ‘ 1 .
Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States , any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established . 2 .
Where the jurisdiction of the court first seised is established , any court other than the court first seised shall decline jurisdiction in favour of that court . ’ 7 .
Article 28 of the same regulation provides : ‘ 1 .
Where related actions are pending in the courts of different Member States , any court other than the court first seised may stay its proceedings . 2 .
Where these actions are pending at first instance , any court other than the court first seised may also , on the application of one of the parties , decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof . 3 .
For the purposes of this Article , actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings . ’ 8 .
Article 34 of the regulation provides : ‘ A judgment shall not be recognised : 1 .
if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought ; 3 .
if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought ; 4 .
if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties , provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed . ’ 9 .
Article 35 of Regulation No 44 / 2001 states : ‘ 1 .
Moreover , a judgment shall not be recognised if it conflicts with Sections 3 , 4 or 6 of Chapter II , or in a case provided for in Article 72 . 2 .
In its examination of the grounds of jurisdiction referred to in the foregoing paragraph , the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction . 3 .
Subject to the paragraph 1 , 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 . ’ 2 .
Regulation No 2201 / 2003 10 .
Recitals 11 , 12 , 21 and 33 of Regulation No 2201 / 2003 state : ‘ ( 11 ) Maintenance obligations are excluded from the scope of this Regulation as these are already covered by … Regulation No 44 / 2001 .
The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5 ( 2 ) of … Regulation No 44 / 2001 . ( 12 ) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child , in particular on the criterion of proximity .
This means that jurisdiction should lie in the first place with the Member State of the child ’ s habitual residence , except for certain cases of a change in the child ’ s residence or pursuant to an agreement between the holders of parental responsibility . ( 21 ) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required . ( 33 ) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union .
In particular , it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights . . . ’ 11 .
Article 12 of that regulation , entitled ‘ Prorogation of jurisdiction ’ , states , in paragraphs 1 and 2 : ‘ 1 .
The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce , legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where : ( a ) at least one of the spouses has parental responsibility in relation to the child ; and ( b ) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility , at the time the court is seised , and is in the superior interests of the child . 2 .
The jurisdiction conferred in paragraph 1 shall cease as soon as : ( a ) the judgment allowing or refusing the application for divorce , legal separation or marriage annulment has become final ; ( b ) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in ( a ) , a judgment in these proceedings has become final ; ( c ) the proceedings referred to in ( a ) and ( b ) have come to an end for another reason . ’ 12 .
Article 17 of the same regulation , entitled ‘ Examination as to jurisdiction ’ , provides : ‘ Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation , it shall declare of its own motion that it has no jurisdiction . ’ 13 .
Article 19 of the regulation , entitled ‘ Lis pendens and dependent actions ’ , provides : ‘ 1 .
Where proceedings relating to divorce , legal separation or marriage annulment between the same parties are brought before courts of different Member States , the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established . 2 .
Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States , the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established . 3 .
Where the jurisdiction of the court first seised is established , the court second seised shall decline jurisdiction in favour of that court .
In that case , the party who brought the relevant action before the court second seised may bring that action before the court first seised . ’ 14 .
Article 21 of Regulation No 2201 / 2003 , entitled ‘ Recognition of a judgment ’ , sets out , in paragraphs 1 and 4 : ‘ 1 .
A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required . 4 .
Where the recognition of a judgment is raised as an incidental question in a court of a Member State , that court may determine that issue . ’ 15 .
Article 22 of the regulation , entitled ‘ Grounds of non-recognition for judgments relating to divorce , legal separation or marriage annulment ’ , provides : ‘ A judgment relating to a divorce , legal separation or marriage annulment shall not be recognised : ( a ) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought ; ( c ) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought ; 16 .
Article 23 of the same regulation , entitled ‘ Grounds of non-recognition for judgments relating to parental responsibility ’ , is worded as follows : ‘ A judgment relating to parental responsibility shall not be recognised : ( a ) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child ; ( e ) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought ; 17 .
Article 24 of the regulation , entitled ‘ Prohibition of review of jurisdiction of the court of origin ’ , provides : ‘ The jurisdiction of the court of the Member State of origin may not be reviewed .
The test of public policy referred to in Articles 22 ( a ) and 23 ( a ) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14 . ’
Italian law 18 .
Article 150 of the Codice civile ( Civil Code ) , entitled ‘ Legal separation ’ , provides : ‘ Legal separation of the spouses is permitted .
The separation may be ordered by the court or be consensual .
The right to apply for court-ordered separation or confirmation of consensual separation is vested solely in the spouses . ’ 19 .
Article 151 of the Civil Code , entitled ‘ Court-ordered separation ’ , provides : ‘ Separation may be applied for when there exist , even if outwith the control of either or both of the spouses , circumstances liable to render intolerable continuing cohabitation or to cause serious harm to the upbringing of the children .
The judge pronouncing separation shall declare , where the relevant circumstances obtain and a request to that effect is made , to which of the spouses the separation is imputable by virtue of conduct inconsistent with the duties devolving from marriage . ’ 20 .
The referring court explains that , for the purposes of the definitive dissolution of marriage ( divorce ) , the applicable provision ratione temporis is Article 3 , first paragraph , indent 2 ( b ) , of Legge n . 898 ( Disciplina dei casi di scioglimento del matrimonio ) ( Law No 898 ( Rules applicable in the event of dissolution of marriage ) ) of 1 December 1970 , ( 6 ) which is worded as follows : ‘ Dissolution or cessation of the civil effects of marriage may be applied for by either of the spouses : 2 ) in cases where : ( b ) the judicial separation of the spouses has been declared by a judgment which has acquired the force of law or a consensual separation has been judicially confirmed or de facto separation has occurred when the de facto separation commenced at least two years prior to 18 December 1970 .
In all the above cases , in order for an application to be made for dissolution or cessation of the civil effects of a marriage , the separation must have lasted without interruption for at least three years from the time at which the spouses appeared before the President of the Court in legal separation proceedings , even where contentious proceedings have been converted into consensual proceedings . ’ 21 .
The referring court adds that parental responsibility and child maintenance obligations are governed in the same way , in the event of separation and divorce , by Article 337a to 337g of the Civil Code .
Facts of the main proceedings and the questions referred for a preliminary ruling 22 .
Mr Liberato and Ms Grigorescu were married in Rome ( Italy ) on 22 October 2005 and lived together in Italy until the birth of their child on 20 February 2006 .
The matrimonial relationship deteriorated progressively .
The mother took the child to Romania and did not return to the family home in Italy . ( 7 ) 23 .
By application of 22 May 2007 to the Tribunale di Teramo ( District Court , Teramo , Italy ) , Mr Liberato sought legal separation and custody of the child .
Ms Grigorescu entered an appearance and sought a declaration that the separation was attributable to her husband , together with sole custody of the child and a contribution from the father to the child ’ s maintenance . 24 .
By judgment of 19 January 2012 , ( 8 ) the Tribunale di Teramo ( District Court , Teramo ) pronounced legal separation of the spouses , attributable to Ms Grigorescu , and , by a separate order , referred the case back for a decision on the opposing claims concerning parental responsibility . 25 .
While those parental responsibility proceedings were still pending in Italy , Ms Grigorescu brought proceedings before the Judecãtoria Bucureşti ( Court of First Instance , Bucharest , Romania ) on 30 September 2009 , seeking divorce , sole custody of the child and a contribution from the father to the child ’ s maintenance . 26 .
In the context of the latter proceedings , Mr Liberato entered an appearance and , as a preliminary matter , raised an objection of lis pendens on the grounds that the separation proceedings had been brought in Italy first .
Nonetheless , by a judgment of 31 May 2010 , the Judecãtoria Bucureşti ( Court of First Instance , Bucharest ) pronounced the dissolution of the marriage , awarded custody of the child to the mother , set out the father ’ s visiting arrangements and determined the amount of maintenance payable by the father for the child . 27 .
That judgment acquired the force of res judicata following a judgment of the Curtea de Apel București ( Court of Appeal , Bucharest , Romania ) of 12 June 2013 which confirmed the judgment of the Tribunalul București ( Regional Court , Bucharest , Romania ) of 3 December 2012 , having dismissed the appeal brought by Mr Liberato against the judgment of 31 May 2010 . 28 .
The separation proceedings in Italy subsequently led to a judgment of the Tribunale di Teramo ( District Court , Teramo ) of 8 July 2013 .
The Tribunale di Teramo ( District Court , Teramo ) awarded sole custody of the child to the father , ordered the immediate return of the child to Italy .
The court also set out arrangements for the mother to make visits to Italy , under the supervision of the social services and the public prosecutor , and determined that the mother should make a contribution towards the maintenance of the child . 29 .
The Tribunale di Teramo ( District Court , Teramo ) dismissed the application made by Ms Grigorescu , on an incidental basis , for the recognition in Italy of the divorce judgment of the Tribunalul București ( Regional Court , Bucharest ) of 3 December 2012 , pursuant to Regulation No 2201 / 2003 .
The Tribunale di Teramo ( District Court , Teramo ) observed that the divorce proceedings had been commenced in Romania in 2009 , after the legal separation proceedings brought in Italy in 2007 , and that the Tribunalul București ( Regional Court , Bucharest ) had infringed Article 19 of Regulation No 2201 / 2003 by failing to stay the proceedings before it . 30 .
Ms Grigorescu appealed against that judgment and , as a preliminary matter , made an incidental application for the recognition of the judgment of the Curtea de Apel București ( Court of Appeal , Bucharest ) of 12 June 2013 which dismissed the objection of lis pendens on the grounds , according to the referring court , that the two cases did not involve the same cause of action under Romanian procedural law . ( 9 ) By a judgment of 31 March 2014 , the Corte d ’ appello di L ’ Aquila ( Court of Appeal , L ’ Aquila , Italy ) reversed the judgment delivered at first instance and upheld the objection that the divorce judgment delivered by the Romanian courts , which related also to custody and maintenance of the child , had acquired the force of res judicata .
The Corte d ’ appello di L ’ Aquila ( Court of Appeal , L ’ Aquila ) held that a breach of the rules on lis pendens under EU law by the judicial authorities seised second , in other words , by the Romanian courts , was not ‘ relevant ’ when examining the conditions for the recognition of definitive measures taken by Romania , that the Romanian judgments were not irreconcilable with the judgments given in Italy and that there were no grounds — in particular , no public policy grounds — for withholding recognition of the Romanian judgment . 31 .
Mr Liberato brought an appeal in cassation against that judgment of the Corte d ’ appello di L ’ Aquila ( Court of Appeal , L ’ Aquila ) . 32 .
The Corte suprema di cassazione ( Supreme Court of Cassation , Italy ) , the referring court , states that the judgment given in Romania concerns marriage , parental responsibility and maintenance obligations .
The proceedings for legal separation commenced in Italy involved the same claims , except for that relating to marriage , which was not identical , since the Italian legal system requires conditions prescribed by law to be met for spouses to be legally separated , prior to divorce . 33 .
The referring court explains , first , that there are no grounds under Article 22 ( c ) of Regulation No 2201 / 2003 , under Article 23 ( e ) of the same regulation or under Article 34 ( 4 ) of Regulation No 44 / 2001 that would allow recognition of the Romanian judgment to be withheld in relation to , respectively , marriage , parental responsibility or maintenance obligations . 34 .
According to the referring court , it is therefore necessary to examine whether there has been a breach of the relevant provisions concerning lis pendens under EU law , namely Article 19 of Regulation No 2201 / 2003 and Article 27 of Regulation No 44 / 2001 , on the part of the courts of the Member State which delivered the judgment recognition of which is being sought and , in the event that both provisions have been breached , then whether that breach can be regarded as a ground for withholding recognition due to it being manifestly contrary to public policy . 35 .
The referring court stresses the fact that lis pendens under EU law is the expression of the cardinal principle of the system of trust and cooperation underlying the free movement of judicial pronouncements between Member States .
Lis pendens is based on three principles : the autonomy of that concept ; the prohibition on the court second seised from reviewing the jurisdiction of the court first seised ; and the priority in time of the court first seised , which is binding on the court second seised . 36 .
The referring court notes that the objection of lis pendens raised by Mr Liberato at each stage of the Romanian proceedings , and in particular before the Curtea de Apel București ( Court of Appeal , Bucharest ) , was rejected on the basis that the cause of action and parties must be totally identical , both under the Romanian domestic rules on lis pendens and also under the concept of ‘ lis pendens ’ in EU law , as it appears in Article 19 ( 1 ) of Regulation No 2201 / 2003 .
The referring court concludes that the Romanian courts misconstrued the wording of Article 19 ( 1 ) of Regulation No 2201 / 2003 which groups all proceedings relating to divorce , legal separation or marriage annulment into one category and therefore does not require the cause of action to be identical . 37 .
The referring court also notes that the decision relating to child maintenance is causally subordinate to the decision relating to parental responsibility and cannot be separated from it logically or legally , since it depends on the main decision .
The referring court considers that the conditions in Article 28 of Regulation No 44 / 2001 , when read in the light of Article 3 of Council Regulation ( EC ) No 4 / 2009 of 18 December 2008 on jurisdiction , applicable law , recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations , ( 10 ) are met , even though that provision is not directly applicable . ( 11 ) 38 .
According to the referring court , the final Romanian judgment recognition of which is sought was delivered by a court which did not have jurisdiction to hear the case , as it was seised second . 39 .
The referring court is of the view that the infringement concerns not only the application of the test for determining jurisdiction between two Member States but also , in view of the function of lis pendens in the system of automatic recognition and enforcement of judicial decisions of the Member States , the implementation of a principle of procedural public policy under EU law , consisting in the legitimate free movement of judicial decisions within the European Union .
The principle that priority is accorded to the proceedings commenced first , which underlies the procedural rules on lis pendens , is of central importance in EU procedural law because its purpose is to avoid judicial initiatives the sole intention of which is to frustrate the outcome of cases in which a party disagrees with decisions on the merits that have already taken by the competent court first seised , whose jurisdiction has , as in the present case , been incontestably accepted . 40 .
The referring court also notes that Article 24 of Regulation No 2201 / 2003 , which prohibits the review of jurisdiction of the court of origin , refers to the rules determining jurisdiction contained in Articles 3 to 14 of that regulation but not to the rule in Article 19 thereof . 41 .
In those circumstances , the Corte suprema di cassazione ( Supreme Court of Cassation ) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling : ‘ ( 1 ) Does an infringement of the rules on lis pendens contained in Article 19 ( 2 ) and ( 3 ) of Regulation No 2201 / 2003 affect only the determination of jurisdiction , with the consequent application of Article 24 [ thereof ] or , on the contrary , may it constitute a ground for withholding recognition , in the Member State whose court has been seised first , of a judicial ruling made in the Member State whose court has been seised at a later stage , in the light of procedural public policy , having regard to the fact that [ that Article 24 ] refers only to the rules determining jurisdiction contained in Articles 3 to 14 of that regulation and not to Article 19 thereof ?
( 2 ) Does the interpretation of Article 19 of Regulation No 2201 / 2003 , seen only as a test for the conferral of jurisdiction , conflict with the EU-law concept of “ lis pendens ” and with the function and purpose of that provision , which is intended to lay down a set of binding rules , reflecting procedural public policy , thereby guaranteeing the creation of a common area characterised by reciprocal procedural trust and fairness between the Member States , within which the automatic recognition and free movement of judicial decisions may operate ? ’
My analysis 42 .
In order to determine the consequences of the failure to comply with the rules on lis pendens , in the context of the case in the main proceedings , it is first of all necessary to identify all the provisions that must be interpreted , together with the conditions that must be met for the lis pendens mechanism to be implemented .
Preliminary observations 1 .
The reformulation of the questions referred for a preliminary ruling 43 .
It should be noted that the referring court frames its questions in relation to Regulation No 2201 / 2003 alone , whereas it is apparent from the decision to refer that the case in the main proceedings concerns not only parental responsibility but also maintenance obligations , which are not covered by that regulation . ( 12 ) 44 .