# C_2020443EN.01000201.xml

| 21.12.2020 | EN | Official Journal of the European Union | C 443/2 |
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21.12.2020

EN

Official Journal of the European Union

C 443/2

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Order of the Court (Eighth Chamber) of 3 October 2019 (request for a preliminary ruling from the Judecătoria Rădăuţi — Romania) — OF v PG

(Case C-759/18) (1)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 2201/2003 - Jurisdiction to hear and determine an application for divorce - Jurisdiction in matters of parental responsibility and maintenance obligations with regard to the couple’s minor child - Bringing of proceedings before a court of the State of the nationality of the parties - Article 3(1)(b) - Minor child and parents resident in another Member State - Article 12(1)(b) - Prorogation of jurisdiction - Article 17 - Ascertaining jurisdiction - Concept of ‘parental responsibility’)

(2020/C 443/02)

Language of the case: Romanian

Referring court

Judecătoria Rădăuţi

Parties to the main proceedings

Applicant: OF

Defendant: PG

Operative part of the order

| 1. | Article 3(1) 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 meaning that, in the case of an application for divorce, where the applicant brings proceedings before a court of the Member State of the spouses’ common nationality, although their habitual residence is in another Member State, that court has jurisdiction to rule on that application pursuant to point (b) of that provision. As the defendant is not required to give consent, it is not necessary to examine whether a failure on the part of the defendant to raise an objection that that court lacks jurisdiction constitutes tacit consent to the court seised having jurisdiction. |
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1.

Article 3(1) 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 meaning that, in the case of an application for divorce, where the applicant brings proceedings before a court of the Member State of the spouses’ common nationality, although their habitual residence is in another Member State, that court has jurisdiction to rule on that application pursuant to point (b) of that provision. As the defendant is not required to give consent, it is not necessary to examine whether a failure on the part of the defendant to raise an objection that that court lacks jurisdiction constitutes tacit consent to the court seised having jurisdiction.

| 2. | Article 3(1) and Article 17 of Regulation No 2201/2003 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the fact that the couple seeking dissolution of their marriage have a minor child is irrelevant for the purposes of determining the court having jurisdiction to rule on the application for divorce. Since the court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on that application under Article 3(1)(b) of that regulation, that court cannot, even where there is no agreement between the parties on the matter, raise an objection that it lacks international jurisdiction. |
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2.

Article 3(1) and Article 17 of Regulation No 2201/2003 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the fact that the couple seeking dissolution of their marriage have a minor child is irrelevant for the purposes of determining the court having jurisdiction to rule on the application for divorce. Since the court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on that application under Article 3(1)(b) of that regulation, that court cannot, even where there is no agreement between the parties on the matter, raise an objection that it lacks international jurisdiction.

| 3. | Article 12(1)(b) of Regulation No 2201/2003 must be interpreted as meaning that, where a court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on divorce proceedings pursuant to Article 3(1)(b) of Regulation No 2201/2003, the condition relating to the acceptance of jurisdiction laid down in Article 12(1)(b) of that regulation cannot be regarded as satisfied where parental responsibility is not the subject of the proceedings and the defendant has not entered an appearance. In that situation, the court seised, which has jurisdiction to rule on the divorce of the spouses, does not have jurisdiction under Article 12(1)(b) of Regulation No 2201/2003 and Article 3(d) 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 to rule on issues relating to parental responsibility and maintenance obligations, respectively, in respect of the child concerned. |
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3.

Article 12(1)(b) of Regulation No 2201/2003 must be interpreted as meaning that, where a court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on divorce proceedings pursuant to Article 3(1)(b) of Regulation No 2201/2003, the condition relating to the acceptance of jurisdiction laid down in Article 12(1)(b) of that regulation cannot be regarded as satisfied where parental responsibility is not the subject of the proceedings and the defendant has not entered an appearance. In that situation, the court seised, which has jurisdiction to rule on the divorce of the spouses, does not have jurisdiction under Article 12(1)(b) of Regulation No 2201/2003 and Article 3(d) 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 to rule on issues relating to parental responsibility and maintenance obligations, respectively, in respect of the child concerned.

| 4. | The concept of ‘parental responsibility’, as defined in Regulation No 2201/2003, must be interpreted as covering decisions relating to, in particular, custody of the child and the child’s place of habitual residence, but it does not include parental contributions towards the costs of the child’s care and upbringing, which is covered by the concept of ‘maintenance obligations’ and comes within the scope of Regulation No 4/2009. |
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4.

The concept of ‘parental responsibility’, as defined in Regulation No 2201/2003, must be interpreted as covering decisions relating to, in particular, custody of the child and the child’s place of habitual residence, but it does not include parental contributions towards the costs of the child’s care and upbringing, which is covered by the concept of ‘maintenance obligations’ and comes within the scope of Regulation No 4/2009.

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(1)  OJ C 65, 18.2.2019.

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