FranklinWillemen/mapa_plus huggingface dataset:
The questions raised must therefore be reformulated by reference to Article 5 ( 2 ) of Regulation No 44 / 2001 , which is applicable since the proceedings were commenced prior to 18 June 2011 . ( 13 ) 45 .
By the two questions that it has referred for a preliminary ruling , and which must be examined together , the referring court could also be considered , in essence , to be asking whether Article 35 ( 3 ) of Regulation No 44 / 2001 and Article 24 of Regulation No 2201 / 2003 can be interpreted to mean that there is no preclusion on a breach by the court second seised of the rules on lis pendens , set out in Article 27 of Regulation No 44 / 2001 and Article 19 of Regulation No 2201 / 2003 , constituting a ground for withholding recognition of a decision delivered by that court , on the basis of an infringement of public policy in the Member State in which enforcement is sought , involving procedural rules that are considered essential for the EU legal order . 2 .
Similarity of the mechanism laid down by Regulations No 44 / 2001 and No 2201 / 2003 in the event of lis pendens 46 .
Both of these regulations require the second court to decline jurisdiction in the event of lis pendens . ( 14 ) The Court has noted that ‘ Article 19 of Regulation No 2201 / 2003 [ ( 15 ) ] is expressed in very similar terms to those used in Article 27 of Regulation No 44 / 2001 , which replaced Article 21 of the Brussels Convention [ ( 16 ) ] , and establishes a mechanism for dealing with cases of lis pendens that is equivalent to that provided for by Article 27 of Regulation No 44 / 2001 and Article 21 of the Brussels Convention .
Account must therefore be taken of the considerations of the Court in relation to those last two articles ’ . ( 17 ) 3 .
The mechanism established in the event of lis pendens and its purpose 47 .
As the Court has already stated , in relation to Regulation No 2201 / 2003 , ‘ the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens ( see , by analogy , with regard to Regulation No 44 / 2001 , judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C ‑ 1 / 13 , EU : C : 2014 : 109 , paragraph 40 ) ’ . ( 18 ) 48 .
That mechanism , which ‘ is based on the chronological order in which the courts are seised ’ , ( 19 ) means that 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 . 49 .
The Court has clarified that , ‘ in order for the jurisdiction of the court first seised to be established within the meaning of Article 19 ( 1 ) of [ Regulation No 2201 / 2003 ] , it is sufficient that the court first seised has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded in national law as being the first defence on the substance submitted before that court ( see , by analogy , judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C ‑ 1 / 13 , EU : C : 2014 : 109 , paragraph 44 ) ’ . ( 20 ) 50 .
More specifically , the Court has recommended that , ‘ according to what is permitted by provisions of its national law , the court second seised may , where the opposing parties in two sets of proceedings are the same , seek information from the party relying on the objection of lis pendens on the existence of the alleged proceedings and the content of the action .
Moreover , taking into consideration the fact that Regulation No 2201 / 2003 is based on judicial cooperation and mutual trust , that court may advise the court first seised that an action has been brought before it , alert the court first seised to the possibility of lis pendens , and invite the court first seised to provide it with information on the action pending before it and to state its position on its jurisdiction within the meaning of Regulation No 2201 / 2003 or to notify it of any judgment already delivered in that regard .
Lastly , the court second seised will be able to approach the central authority in its Member State ’ . ( 21 ) 51 .
The mandatory nature of the rules on lis pendens set out in Article 19 of Regulation No 2201 / 2003 ( 22 ) can be justified by the purpose of the rules .
The Court has stated that ‘ those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom ’ . ( 23 ) 52 .
They play a part in the implementation of the principle of automatic recognition of judgments delivered in the Member States , which is based on the principle of mutual trust . 4 .
The conditions for lis pendens and their application to the case in the main proceedings 53 .
The Court has consistently held that the concepts used to determine a situation of lis pendens , in particular in Regulations No 44 / 2001 and No 2201 / 2003 , should be considered as autonomous . 54 .
Thus , in relation to parental responsibility , the Court has expressly mentioned this principle on the basis of the objectives pursued by Regulation No 2201 / 2003 and on ‘ the fact that the wording of Article 19 ( 2 ) thereof , instead of referring to the term “ lis pendens ” as used in the different national legal systems of the Member States , lays down a number of substantive conditions as components of a definition ’ . ( 24 ) 55 .
In proceedings relating to matrimonial matters , it is clear from Article 19 ( 1 ) of Regulation No 2201 / 2003 , unlike Article 19 ( 2 ) , that the sole criterion to be taken into account when establishing the existence of concurrent proceedings is that relating to the parties .
The Court had occasion to state this expressly in the judgment of 6 October 2015 , A . ( 25 ) The Court held that ‘ a situation of lis pendens may exist where two courts of different Member States are seised … of judicial separation proceedings in one case and divorce proceedings in the other , or where both are seised of an application for divorce ’ . ( 26 ) 56 .
If , in matrimonial proceedings , there are claims relating to parental responsibility , the rules on lis pendens relating to dissolution of marriage will apply . ( 27 ) 57 .
The same is true of matters relating to maintenance when the matter is ‘ ancillary to proceedings concerning the status of a person ’ , pursuant to Article 5 ( 2 ) of Regulation No 44 / 2001 . 58 .
After the divorce has been decreed , in accordance with Article 12 ( 2 ) ( b ) of Regulation No 2201 / 2003 , there is a requirement for the cause of action to be the same in matters of parental responsibility , pursuant to Article 19 ( 2 ) of that regulation . ( 28 ) In matters relating to maintenance , the rules on lis pendens set out in Article 27 of Regulation No 44 / 2001 , applicable to the present case , require the cause of action and the parties to be the same . 59 .
In addition , it should be noted that the priority given to the court first seised lasts until that court declines jurisdiction following an examination of its own jurisdiction , which is obligatory under Article 17 of Regulation No 2201 / 2003 , ( 29 ) at every stage of the proceedings . ( 30 ) 60 .
Thus , in the case in the main proceedings , as soon as the Romanian court was seised , it should have implemented the mechanism for lis pendens both in relation to the decision on the dissolution of the marriage and to its consequences for the child , who lived in Romania , by virtue of prorogation of jurisdiction of the Italian court . ( 31 ) 61 .
It appears from the judgment of the Curtea de Apel București ( Court of Appeal , Bucharest ) of 12 June 2013 that the Romanian court failed to properly apply EU law ( 32 ) in rejecting the objection of lis pendens raised by Mr Liberato on the basis of the matrimonial proceedings .
The Romanian court first referred to domestic Romanian law which sets out conditions for lis pendens and to the force of res judicata to find that ‘ it is clear from the wording of Article 19 [ of Regulation No 2201 / 2003 ] , which lists three separate instances where lis pendens could arise , namely “ divorce , legal separation or marriage annulment between the same parties ” , that the two concurrent sets of proceedings must have only one of the three objects in common and not two different objects out of those expressly and exhaustively listed in the text .
In the present case , the two sets of proceedings each have a different object , namely separation in Italy and divorce in Romania , which excludes the application of Article 19 of Regulation No 2201 / 2003 .
The appeal court was right to find that the Romanian system does not recognise the status of separation .
It is therefore clear that there can be no commonality with separation proceedings brought before the courts of another Member State .
Even if separation were a recognised status , divorce and separation are not the same thing ’ . 62 .
In addition , it should be noted that the objection of lis pendens raised by Mr Liberato at each stage of the proceedings was based on prorogation of jurisdiction in connection with the application for legal separation and not on the rules applicable to parental responsibility or maintenance . 63 .
In that regard , it may be observed that , following the matrimonial judgment given by the Italian court on 19 January 2012 , ( 33 ) the question of lis pendens becomes considerably more difficult to analyse . ( 34 ) Lis pendens could only continue to be an issue in relation to parental responsibility as a result of the Italian court examining , and confirming , its own jurisdiction .
In my view , that could only arise from the interpretation of the provisions of Article 12 ( 2 ) ( b ) of Regulation No 2201 / 2003 , ( 35 ) which I believe must be combined with the investigation into the best interests of the child which , with the mother ’ s agreement , had justified the prorogation of jurisdiction when proceedings commenced . ( 36 ) 64 .
Since those conditions must be met in order for the Italian court to have jurisdiction to rule , on an incidental basis , on the recognition of the Romanian judgment which brought the lis pendens to an end , it is up to the referring court to ensure that the conditions were examined . ( 37 ) 65 .
In the light of all these factors , it is then necessary to identify the consequences that flow from a failure to comply with the rules on lis pendens , taking account of the circumstances of the case in the main proceedings .
The consequences of failure to comply with the rules on lis pendens 66 .
The particular circumstances of the case in the main proceedings should be borne in mind from the outset .
The court first seised , before which the same applications between the same parties are still pending , ( 38 ) must rule on an incidental claim for recognition of the final judgment delivered by the court second seised . 67 .
Consequently , for that reason alone , the decision of the Court in the case that gave rise to the judgment of 22 December 2010 , Mercredi , ( 39 ) according to which , in a case of lis pendens , a judgment in proceedings relating to parental responsibility delivered by a court second seised , in breach of the obligation to stay proceedings , ( 40 ) ‘ has [ no ] effect ’ on the judgment which has to be delivered by the court first seised , ( 41 ) cannot be transposed to the case in the main proceedings , despite the assertions to the contrary of the European Commission .
The Court stated in paragraph 67 of the judgment of 22 December 2010 , Mercredi ( 42 ) that the contested decision delivered by the court second seised was not final .
In addition , uncertainty over the child ’ s residence and the overlap with the proceedings seeking the return of the child also justified the particular solution used in that case . 68 .
Therefore , in the case in the main proceedings , the question of the breach of the rules on lis pendens must be examined in the light of the grounds for non-recognition set out in Regulations No 2201 / 2003 and No 44 / 2001 . 69 .
In the context of the pending proceedings which no longer relate to dissolution of the marriage , ( 43 ) the referring court correctly found that , out of the grounds for non-recognition provided for in Regulation No 2201 / 2003 , it is only the test of being manifestly contrary to the public policy of the Member State in which recognition of a judgment relating to parental responsibility is sought , ( 44 ) referred to in Article 23 ( a ) of Regulation No 2201 / 2003 , that must be analysed in conjunction with Article 24 of that regulation .
Article 24 prohibits the application of the public policy test to the rules relating to jurisdiction set out in Articles 3 to 14 of the regulation . 70 .
The Court has already examined such a question in the judgment in P . 71 .
The difference between the circumstances at issue in that case ( 45 ) and the circumstances in the case in the main proceedings does not seem to me to be major since , first , the judgment of the Court relates to how the rules on jurisdiction or the coordination of parallel proceedings connect with the rules that allow the recognition of judgments delivered in a Member State to be refused and , secondly , it is based on general principles which repeat almost identically those in the judgment of 16 July 2015 , Diageo Brands . ( 46 ) 72 .
In the judgment in P , the Court indicated its wish to adopt an approach that was similarly restrictive to the grounds for non-recognition of a judgment , referring to the approach used in cases where Regulation No 44 / 2001 applies .
Conveniently for the case in the main proceedings , in view of the two applicable regulations , that would warrant a finding that the same decision may serve as the basis for the response to the questions referred by the referring court for a preliminary ruling . 73 .
The Court recalled , first , that , ‘ as stated in recital 21 in [ the ] preamble [ to Regulation No 2201 / 2003 ] , that regulation is founded on the idea that 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 ’ ( 47 ) and , secondly , that ‘ in that system , Article 23 of Regulation No 2201 / 2003 , which sets out the grounds on which recognition of a judgment in matters of parental responsibility may be refused , must be interpreted strictly , in so far as it is an obstacle to the attainment of one of the fundamental objectives of that regulation ’ . ( 48 ) 74 .
Those objectives and principles explain why the EU legislature lays down , in Article 24 of Regulation No 2201 / 2003 , a prohibition on any review of the jurisdiction of the court of the Member State ( 49 ) and ‘ even provides expressly that Article 23 ( a ) of the regulation cannot be used to carry out such a review ’ , ( 50 ) referring to Articles 3 to 14 of that regulation . ( 51 ) That fundamental principle , from which it is not possible to derogate directly or indirectly , also results from the standardisation of the rules on jurisdiction and the presumption that those rules are examined regularly by any court when it is seised . 75 .
For all of the above reasons , in the judgment in P the Court extended to Article 15 of Regulation No 2201 / 2003 the prohibition on applying the test of there being an infringement of the public policy of the Member State in which recognition is sought . ( 52 ) 76 .
However , even though Article 19 of that regulation appears , as does Article 15 , in Chapter II of the regulation , entitled ‘ Jurisdiction ’ , it does not supplement the specific provisions for the conferral of jurisdiction found in Sections 1 and 2 , as it forms part of Section 3 relating to ‘ Common provisions ’ . 77 .
Even so , it is my opinion that the solution in the judgment in P must be transposed .
When the court first seised , ruling on an incidental claim for recognition , examines whether the rules on lis pendens have been correctly applied by the court second seised and , therefore , the reasons why it has not declined jurisdiction , the court first seised is reviewing the second court ’ s examination of its jurisdiction .
However , it is prohibited from doing so under Article 24 of Regulation No 2201 / 2003 . 78 .
In addition , because of the conditions for implementing the rules on jurisdiction , which I have set out above , that review is not limited to an examination at the time when proceedings are commenced .
Consequently , an assessment of the severity of failure to comply with those rules at the stage of recognition of the judgment could turn out to be equally problematic .
It is quite conceivable that , particularly in matters of parental responsibility and cases of prorogation of jurisdiction , following exchanges between the courts , the court first seised declines jurisdiction on the grounds of the jurisdiction criteria , namely proximity to the place of residence of the child and the child ’ s best interests . ( 53 ) 79 .
Furthermore , as the Court noted in the judgment in P , ‘ the court of the State in which recognition is sought cannot , without calling into question the purpose of Regulation No 2201 / 2003 , refuse to recognise a judgment from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment . ’ ( 54 ) Thus it seems to me that it would be difficult to justify treating a failure to resolve the conflict of jurisdiction ( 55 ) in cases of parallel proceedings more strictly than a failure to examine jurisdiction , ( 56 ) or errors made at that time , which are exempt from review under the provisions of Article 24 of Regulation No 2201 / 2003 and several other European regulations . 80 .
I deduce from all these factors that , despite the lack of express reference to Article 19 of Regulation No 2201 / 2003 in Article 24 thereof , Article 24 should be interpreted to mean that the prohibition on reviewing the jurisdiction of the court of origin contained in that article also applies in cases of breach of the rules on lis pendens . ( 57 ) 81 .
In relation to maintenance matters , it should be noted that no difficulties are presented by the wording of Article 35 ( 3 ) of Regulation No 44 / 2001 . ( 58 ) 82 .
In the light of all of these considerations , I propose that the Court should rule that Article 35 ( 3 ) of Regulation No 44 / 2001 and Article 24 of Regulation No 2201 / 2003 must be interpreted as precluding that a breach of the rules on lis pendens , set out in Article 27 of Regulation No 44 / 2001 and Article 19 of Regulation No 2201 / 2003 , by the court second seised constitutes a ground for non-recognition of the judgment delivered by that court , on the basis that it is contrary to the public policy of the Member State in which recognition is sought . 83 .
For the sake of completeness , I would point out that , if it is agreed that the public policy test is applicable , the judgment in P , once again , sets the limits which need to be reaffirmed . ( 59 ) 84 .
That judgment is based on principles laid down on numerous occasions in connection with the interpretation of grounds for non-recognition that feature in several regulations governing the free movement of judgments ( 60 ) and on the requirement of the EU legislature to take into account the ‘ best interests of the child ’ , ( 61 ) in the case of a refusal to recognise a judgment delivered in a parental responsibility matter , whilst still keeping in mind the ongoing possibility that decisions concerning the child may be amended . 85 .
It is therefore appropriate to declare again that ‘ Article 23 ( a ) of Regulation No 2201 / 2003 must be interpreted as meaning that , in the absence of a manifest breach , having regard to the best interests of the child , of a rule of law regarded as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order , that provision does not allow a court of that Member State which considers that it has jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which has ruled on the custody of that child . ’ ( 62 ) 86 .
The referring court believes that , due to the function of the rules on lis pendens in the system for automatic recognition of judgments within the EU , a breach of those rules undermines a principle of procedural public policy which guarantees the free movement of judgments . 87 .
That definition cannot be accepted , however , as those rules are not of comparable importance to the rules used by the Court in finding that the recognition of a judgment would undermine European procedural public policy . ( 63 ) Such an assessment must be consistent with the principles set out above , namely limitation of the grounds for non-recognition set out in Article 23 of Regulation No 2201 / 2003 , the exceptional nature of recourse to the public policy clause and the prohibition on the court in the Member State in which recognition of a judgment issued by another Member State is sought from refusing to recognise that judgment on the sole ground that the court believes that EU law was misapplied . 88 .
I am perfectly aware of the impact of my analysis in the well-known context of the exploitation of the rules on lis pendens , fuelled by the wide array of heads of jurisdiction available under Regulation No 2201 / 2003 , especially in cases where proceedings are brought before the court of a Member State whose law does not permit divorce to be sought immediately . ( 64 ) 89 .
It could also be argued that , due to the very broad scope of the solution , which cannot be confined to regulations applicable to family matters , there is a serious risk of the pillars of the principle of automatic recognition of judgments being undermined by the failure to sanction a mandatory rule that appears in numerous European regulations . 90 .
Such a fear must , however , founder given that those regulations are based precisely on cooperation and mutual trust between the courts of Member States and that the same logic must be adopted as that underpinning the recognition and enforcement of judgments delivered in each Member State . ( 65 ) 91 .
As a matter of principle , it is therefore inconceivable that there will be a rise in cases where the rules on lis pendens are not complied with , especially since , unlike the Romanian court in the case in the main proceedings , the courts of Member States have been familiar with the interpretation of Article 19 ( 1 ) of Regulation No 2201 / 2003 since 2015 and in future , thanks to the case in the main proceedings , will benefit from a supplementary interpretation by the Court of the way in which the rules on lis pendens are implemented in family disputes . ( 66 ) 92 .
In addition , it must be stressed that courts can avert the difficulties inherent in procedural conflicts through judicial cooperation and dialogue between courts , as described above , ( 67 ) also drawing from the provisions of Article 29 ( 2 ) of Regulation No 1215 / 2012 and Article 17 of Regulations 2016 / 1103 and 2016 / 1104 . ( 68 ) 93 .
I would also argue that , in parental responsibility matters , in view of the fact that any solution must be shaped by the best interests of the child , ( 69 ) the prevention of difficulties in recognising judgments is mandatory .
In that regard , in the case in the main proceedings , it would have been advisable to allow the Court to rule sooner ( 70 ) on the lis pendens conditions .
Implementation of the procedure provided for in Article 15 of Regulation No 2201 / 2003 could also have been contemplated at the request of one of the parties or on the initiative of one of the courts . ( 71 ) 94 .