# 62016CO0173

ORDER OF THE COURT (Sixth Chamber)

22 June 2016 (
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‛Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — No reasonable doubt — Jurisdiction in matrimonial matters — Regulation (EC) No 2201/2003 — Article 16(1)(a) — Determination of the time when a court is seised — Concept of ‘the time when the document instituting the proceedings or an equivalent document is lodged with the court’’

In Case C‐173/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decision of 18 March 2016, received at the Court on 29 March 2016, in the proceedings

M. H.

M. H.

v

M. H.,

M. H.,

THE COURT (Sixth Chamber),

composed of A. Arabadjiev, President of the Chamber, C.G. Fernlund (Rapporteur) and S. Rodin, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court,

makes the following

Order

Order

| 1 | This request for a preliminary ruling concerns the interpretation of Article 16(1)(a) 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 (OJ 2003 L 338, p. 1). |
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1

This request for a preliminary ruling concerns the interpretation of Article 16(1)(a) 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 (OJ 2003 L 338, p. 1).

| 2 | The request has been made in proceedings between M. H. and M. H. concerning the breakdown of the family relationship. |
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2

The request has been made in proceedings between M. H. and M. H. concerning the breakdown of the family relationship.

Legal context

Legal context

EU legislation

EU legislation

| 3 | Article 16 of Regulation No 2201/2003, headed ‘Seising of a Court’, provides, in paragraph 1 thereof, as follows:
  ‘A court shall be deemed to be seised:





  (a) | at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;
  or |
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3

Article 16 of Regulation No 2201/2003, headed ‘Seising of a Court’, provides, in paragraph 1 thereof, as follows:

‘A court shall be deemed to be seised:

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

| (b) | if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’ |
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(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’

| 4 | Article 19(1) and (3) of that regulation provides as follows:
  ‘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.
  ...
  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.’ |
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4

Article 19(1) and (3) of that regulation provides as follows:

‘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.

...

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.’

Irish law

Irish law

| 5 | According to the procedural rules applicable in Ireland, as set out by the referring court, proceedings are initiated when the summons is issued by the registry of the court concerned. Service of the summons is not required prior to proceedings being initiated. Once issued, the summons is served on the respondent. |
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5

According to the procedural rules applicable in Ireland, as set out by the referring court, proceedings are initiated when the summons is issued by the registry of the court concerned. Service of the summons is not required prior to proceedings being initiated. Once issued, the summons is served on the respondent.

| 6 | Although proceedings are not considered to be pending until they have been initiated following the issue of the summons, the court concerned has jurisdiction to make an order in the proceedings in question prior to issue of the summons. That occurs in family law proceedings in urgent situations. |
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6

Although proceedings are not considered to be pending until they have been initiated following the issue of the summons, the court concerned has jurisdiction to make an order in the proceedings in question prior to issue of the summons. That occurs in family law proceedings in urgent situations.

Law of England and Wales

Law of England and Wales

| 7 | According to the order for reference, the procedural rules applicable in England and Wales are similar to those applicable in Ireland, as set out in paragraphs 5 and 6 above. However, instead of a summons, the document initiating proceedings is a petition. |
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7

According to the order for reference, the procedural rules applicable in England and Wales are similar to those applicable in Ireland, as set out in paragraphs 5 and 6 above. However, instead of a summons, the document initiating proceedings is a petition.

The dispute in the main proceedings and the question referred for a preliminary ruling

The dispute in the main proceedings and the question referred for a preliminary ruling

| 8 | Mr M. H., the appellant in the main proceedings, and Mrs M. H., the respondent in the main proceedings, were married on 26 June 1982. |
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8

Mr M. H., the appellant in the main proceedings, and Mrs M. H., the respondent in the main proceedings, were married on 26 June 1982.

| 9 | The respondent in the main proceedings filed a divorce petition which was received by the registry of the Family Law Court in England at 7.53 on 7 September 2015. That petition was date stamped at the latest by 10.30 the same day. The petition was subsequently issued by the Family Law Court registry on 11 September 2015. It was served on the appellant in the main proceedings on 15 September 2015. |
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9

The respondent in the main proceedings filed a divorce petition which was received by the registry of the Family Law Court in England at 7.53 on 7 September 2015. That petition was date stamped at the latest by 10.30 the same day. The petition was subsequently issued by the Family Law Court registry on 11 September 2015. It was served on the appellant in the main proceedings on 15 September 2015.

| 10 | The appellant in the main proceedings lodged a judicial separation summons at the registry of the High Court (Ireland) at approximately 14.30 on 7 September 2015, which was issued shortly afterwards the same day. The summons was served on the respondent in the main proceedings on 9 September 2015. |
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10

The appellant in the main proceedings lodged a judicial separation summons at the registry of the High Court (Ireland) at approximately 14.30 on 7 September 2015, which was issued shortly afterwards the same day. The summons was served on the respondent in the main proceedings on 9 September 2015.

| 11 | The divorce proceedings initiated by the respondent in the main proceedings before the Family Law Court in England are considered to date from 11 September 2015 and to have been pending before that court since that date. The judicial separation proceedings initiated by the appellant in the main proceedings before the High Court in Ireland are considered to date from 7 September 2015 and to have been pending before that court since that date. |
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11

The divorce proceedings initiated by the respondent in the main proceedings before the Family Law Court in England are considered to date from 11 September 2015 and to have been pending before that court since that date. The judicial separation proceedings initiated by the appellant in the main proceedings before the High Court in Ireland are considered to date from 7 September 2015 and to have been pending before that court since that date.

| 12 | In the proceedings initiated in Ireland, the parties to the main proceedings have brought applications before the High Court seeking, respectively, a declaration that the first court seised for the purposes of the application of Article 19 of Regulation No 2201/2003 was, in the submission of the appellant in the main proceedings, that court, and, in the submission of the respondent in the main proceedings, the Family Law Court in England. |
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12

In the proceedings initiated in Ireland, the parties to the main proceedings have brought applications before the High Court seeking, respectively, a declaration that the first court seised for the purposes of the application of Article 19 of Regulation No 2201/2003 was, in the submission of the appellant in the main proceedings, that court, and, in the submission of the respondent in the main proceedings, the Family Law Court in England.

| 13 | The High Court ruled on those applications, holding, on the basis of Article 16 of Regulation No 2201/2003, that the Family Law Court in England was the first court seised. |
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13

The High Court ruled on those applications, holding, on the basis of Article 16 of Regulation No 2201/2003, that the Family Law Court in England was the first court seised.

| 14 | The appellant in the main proceedings lodged an appeal against that decision before the referring court. |
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14

The appellant in the main proceedings lodged an appeal against that decision before the referring court.

| 15 | In those circumstances, the Court of Appeal (Ireland) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
  ‘Is “the time when the document instituting the proceedings ... is lodged with the court” in Article 16(1)(a) of Regulation 2201/2003 to be interpreted as meaning:-





  (i) | the time at which the document instituting the proceedings is received by the court even if such receipt does not of itself immediately commence the proceedings in accordance with national law; or |
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15

In those circumstances, the Court of Appeal (Ireland) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Is “the time when the document instituting the proceedings ... is lodged with the court” in Article 16(1)(a) of Regulation 2201/2003 to be interpreted as meaning:-

(i)

the time at which the document instituting the proceedings is received by the court even if such receipt does not of itself immediately commence the proceedings in accordance with national law; or

| (ii) | the time at which, following receipt of the document instituting the proceedings by the court, the proceedings are commenced in accordance with national law?’ |
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(ii)

the time at which, following receipt of the document instituting the proceedings by the court, the proceedings are commenced in accordance with national law?’

| 16 | The referring court has requested the Court of Justice to apply the expedited procedure to the present case pursuant to Article 105 of the Court’s Rules of Procedure. |
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16

The referring court has requested the Court of Justice to apply the expedited procedure to the present case pursuant to Article 105 of the Court’s Rules of Procedure.

Consideration of the question referred

Consideration of the question referred

| 17 | Pursuant to Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. |
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17

Pursuant to Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

| 18 | It is appropriate to apply that provision in the present case. |
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18

It is appropriate to apply that provision in the present case.

| 19 | Having regard to the fact that the present case has been settled by the adoption of an order under Article 99 of the Rules of Procedure, there is no need to rule on the request for application of the expedited procedure. |
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19

Having regard to the fact that the present case has been settled by the adoption of an order under Article 99 of the Rules of Procedure, there is no need to rule on the request for application of the expedited procedure.

| 20 | The referring court asks, in essence, whether Article 16(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that ‘the time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law the lodging of that document does not of itself immediately initiate the proceedings. |
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20

The referring court asks, in essence, whether Article 16(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that ‘the time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law the lodging of that document does not of itself immediately initiate the proceedings.

| 21 | The Court has recently ruled, in the judgment of 6 October 2015 in A (C‐489/14, EU:C:2015:654), on the question of lis pendens between two sets of proceedings, one being divorce proceedings and the other proceedings for judicial separation, before two courts in different Member States. |
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21

The Court has recently ruled, in the judgment of 6 October 2015 in A (C‐489/14, EU:C:2015:654), on the question of lis pendens between two sets of proceedings, one being divorce proceedings and the other proceedings for judicial separation, before two courts in different Member States.

lis pendens

| 22 | As regards the purpose of the rules of lis pendens in Article 19 of Regulation No 2201/2003, the Court noted 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. For that purpose, the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens (see judgment of 6 October 2015 in A, C‐489/14, EU:C:2015:654, paragraph 29). |
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22

As regards the purpose of the rules of lis pendens in Article 19 of Regulation No 2201/2003, the Court noted 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. For that purpose, the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens (see judgment of 6 October 2015 in A, C‐489/14, EU:C:2015:654, paragraph 29).

lis pendens

lis pendens

| 23 | As is apparent from the words ‘court first seised’ and ‘court second seised’ in Article 19(1) and (3) of Regulation No 2201/2003, that mechanism is based on the chronological order in which the courts concerned have been seised. |
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23

As is apparent from the words ‘court first seised’ and ‘court second seised’ in Article 19(1) and (3) of Regulation No 2201/2003, that mechanism is based on the chronological order in which the courts concerned have been seised.

| 24 | In order to determine when a court is deemed to be seised and thereby establish which is the court first seised, it is necessary to refer to Article 16 of that regulation, entitled ‘Seising of a Court’. |
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24

In order to determine when a court is deemed to be seised and thereby establish which is the court first seised, it is necessary to refer to Article 16 of that regulation, entitled ‘Seising of a Court’.

| 25 | The Court has held, in paragraph 30 of the order of 16 July 2015 in P (C‐507/14, not published, EU:C:2015:512), that that article contains an autonomous definition of the time when a court is deemed to be seised. The EU legislature adopted a uniform concept of the time when a court is seised, which is determined by the performance of a single act, namely, depending on the procedural system under consideration, the lodging of the document instituting the proceedings or the service of that document, but which nevertheless takes into consideration whether the second act was in fact subsequently performed. Thus, pursuant to Article 16(1)(a) of Regulation No 2201/2003, the time when the court is seised is the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 32). |
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25

The Court has held, in paragraph 30 of the order of 16 July 2015 in P (C‐507/14, not published, EU:C:2015:512), that that article contains an autonomous definition of the time when a court is deemed to be seised. The EU legislature adopted a uniform concept of the time when a court is seised, which is determined by the performance of a single act, namely, depending on the procedural system under consideration, the lodging of the document instituting the proceedings or the service of that document, but which nevertheless takes into consideration whether the second act was in fact subsequently performed. Thus, pursuant to Article 16(1)(a) of Regulation No 2201/2003, the time when the court is seised is the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 32).

| 26 | The Court stated that, for the court to be deemed seised, Article 16(1)(a) of Regulation No 2201/2003 requires the satisfaction not of two conditions, namely that the document instituting the proceedings or an equivalent document must have been lodged and service thereof must have been effected on the respondent, but merely of one — that of lodging the document instituting proceedings or an equivalent document. Pursuant to that provision, the lodging of the document of itself renders the court seised, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 37). |
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26

The Court stated that, for the court to be deemed seised, Article 16(1)(a) of Regulation No 2201/2003 requires the satisfaction not of two conditions, namely that the document instituting the proceedings or an equivalent document must have been lodged and service thereof must have been effected on the respondent, but merely of one — that of lodging the document instituting proceedings or an equivalent document. Pursuant to that provision, the lodging of the document of itself renders the court seised, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 37).

| 27 | The Court observed, in respect of that condition, that its objective is to ensure protection against abuse of process. Thus, for the purposes of checking compliance with that condition, account would not be taken of delays caused by the judicial system applicable, but only of any failure of the applicant to act diligently (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 34). |
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27

The Court observed, in respect of that condition, that its objective is to ensure protection against abuse of process. Thus, for the purposes of checking compliance with that condition, account would not be taken of delays caused by the judicial system applicable, but only of any failure of the applicant to act diligently (order of 16 July 2015 in P, C‐507/14, not published, EU:C:2015:512, paragraph 34).

| 28 | It is apparent from the foregoing considerations that, as the referring court has stated, once it has been established which of the two options in Article 16(1)(a) and (b) of Regulation No 2201/2003 applies, in accordance with the choice made by the Member State concerned, the time when a court was seised may be objectively established solely on the basis of the time, as provided for in the case of the first option under Article 16(1)(a), when the document instituting the proceedings or an equivalent document was lodged with that court, irrespective of any national procedural rule intended to determine when and in what circumstances proceedings are initiated or are considered to be pending, provided that the applicant has not subsequently failed to comply with the condition relating to service of that document on the respondent. |
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28

It is apparent from the foregoing considerations that, as the referring court has stated, once it has been established which of the two options in Article 16(1)(a) and (b) of Regulation No 2201/2003 applies, in accordance with the choice made by the Member State concerned, the time when a court was seised may be objectively established solely on the basis of the time, as provided for in the case of the first option under Article 16(1)(a), when the document instituting the proceedings or an equivalent document was lodged with that court, irrespective of any national procedural rule intended to determine when and in what circumstances proceedings are initiated or are considered to be pending, provided that the applicant has not subsequently failed to comply with the condition relating to service of that document on the respondent.

| 29 | Consequently, the answer to the question referred is that Article 16(1)(a) of Regulation No 2201/2003 must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not in itself immediately initiate proceedings. |
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29

Consequently, the answer to the question referred is that Article 16(1)(a) of Regulation No 2201/2003 must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not in itself immediately initiate proceedings.

Costs

Costs

| 30 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. |
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30

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

| | On those grounds, the Court (Sixth Chamber) hereby rules: |
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On those grounds, the Court (Sixth Chamber) hereby rules:

| | Article 16(1)(a) 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 to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings. |
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Article 16(1)(a) 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 to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings.

Article 16(1)(a) 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 to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings.

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[Signatures]

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