Opinion of the Advocate General — ECLI:EU:C:2009:152
Date: 2009-03-12
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: France

summary, it can therefore be concluded that limiting the meaning of nationality in Article 3(1)(b) to the more effective nationality is not consistent with either the wording or the objectives of Regulation No 2201/2003. The system of jurisdiction in divorce proceedings provided for in the Regulation is not generally based on the idea of excluding multiple grounds of jurisdiction. Rather, it expressly provides for the coexistence of several equal-ranking grounds. 66. This necessarily entails a right of choice on the part of the applicant. The fact that a person possessing dual nationality can choose between the courts of two Member States which are competent exclusively on grounds of nationality is not contrary to the Regulation. The requirement in Article 3(1)(b) that both spouses must have the nationality of the court seised ensures that, when that provision is applied, both spouses have the same link to that forum and that it is not possible to seise a court the jurisdiction of which would be entirely unforeseeable or remote from the point of view of either of the spouses. 67. Nor does the choice available to the applicant lead to increased legal uncertainty. It follows from the principle of legal certainty that Community legislation must be certain and its application foreseeable by those subject to it. (31) On the interpretation put forward here, those requirements are taken into account by Article 3(1)(b), as jurisdiction on grounds of common nationality can be determined unequivocally. It is true that, in the case of persons holding more than one nationality, jurisdiction may lie with the courts of a number of Member States. However, should the courts of a number of Member States be seised for that reason, the conflict of jurisdiction is unequivocally resolved by Article 19. 68. As the situation in this case shows, adverse side effects such as the rush to the courts are not in fact such a significant problem from the point of view of jurisdiction per se. Even though Ms Mesko has lived for a long time in France and it is more expensive for her to take part in the proceedings in Hungary than it is for her to take part in proceedings before a court in her place of residence, the fact remains that her complaint is not directed primarily against the ground of jurisdiction as such. What she objects to is rather the application of Hungarian rather than French divorce law. This, however, is a direct consequence not of Regulation No 2201/2003 but of the Hungarian private international law rules. It would not be appropriate to make up for the lack of uniform conflict-of-law rules by an interpretation of the existing provisions on jurisdiction that was contrary to the objectives and scheme of those provisions. 69. Finally, seising a court having jurisdiction under Article 3(1)(b) likewise cannot be regarded as an abuse, as Ms Mesko’s representative submitted at the hearing. It is indeed settled case-law that Community law cannot be relied on for improper or fraudulent ends. (32) However, an abuse can be found to exist only if, notwithstanding formal compliance with Community law requirements, reliance on the rules is contrary to their objectives. (33) 70. Seising the courts of a Member State the nationality of which is held by both spouses is not contrary to the objectives of Article 3(1)(b) even if – as submitted – jurisdiction was taken on the basis of the less effective nationality. 71. It must also be noted that, in the context of the rules governing jurisdiction, legal certainty plays a major role which requires that the application of Community law must be foreseeable by the persons concerned. (34) Consequently, the idea of abuse of law can only in exceptional circumstances at most lead to the seising of a court with jurisdiction under the applicable provisions being regarded as such an abuse. V – Conclusion 72. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Cour de cassation as follows: (1) Where the court of a Member State has to examine whether, under Article 64(4) 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, the court of the Member State in which a judgment was originally given would have had jurisdiction under Article 3(1)(b) of that regulation, it may not regard spouses who both possess the nationality of the Member State of the court seised and of the Member State of origin as being exclusively of its own nationality. Rather, it must take into account the fact that the spouses also possess the nationality of the Member State of origin and that the courts of the latter State accordingly would have had jurisdiction in respect of the judgment. (2) For the purposes of determining jurisdiction under Article 3(1)(b) of Regulation No 2201/2003 in the case of spouses who hold more than one nationality, not only the more effective nationality is to be taken into account. The courts of all Member States whose nationality is held by both spouses have jurisdiction under that provision. 1 – Original language: German. 2 – OJ 2003 L 338, p. 1, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004 (OJ 2004 L 367, p. 1) – also known as the Brussels IIa Regulation (‘Regulation No 2201/2003’ or ‘the Regulation’). 3 – OJ 2000 L 160, p. 19. 4 – See recital 6 in the preamble to Regulation No 1347/2000 and recital 3 in the preamble to Regulation No 2201/2003. 5 – OJ 1998 C 221, p. 2. 6 – OJ 1998 C 221, p. 27. 7 – See recital 6 in the preamble to Regulation No 1347/2000 and recital 3 in the preamble to Regulation No 2201/2003. 8 – Act concerning the Conditions of Accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33). 9 – See the Borrás Report, end of paragraph 33. 10 – See to this effect, in relation to the Brussels Convention, Case C‑125/92 Mulox IBC [1993] ECR I‑4075, paragraph 11, and Case C‑437/00 Pugliese [2003] ECR I‑3573, paragraph 16. 11 – Borrás Report, end of paragraph 33. 12 – Case C-369/90 [1992] ECR I-4239, paragraph 10, and Case C‑148/02 [2003] ECR I‑11613, paragraph 28, respectively. See also, in connection with reliance on the nationality of a Member State, Case C‑122/96 Saldanha and MTS [1997] ECR I‑5325, paragraph 15; Case C‑179/98 Mesbah [1999] ECR I‑7955, paragraph 31 et seq.; Case C-192/99 Kaur [2001] ECR I-1237, paragraph 19; and Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraph 37). 13 – This at least is the case subject to the answer to Question 2 on the significance of effective nationality. 14 – League of Nations Treaty Series, Vol. 179, p. 89. The provision is worded as follows: ‘Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.’ 15 – See to this effect Garcia Avello (cited in footnote 12), paragraph 28. 16 – See Kohler, C., ‘Status als Ware: Bemerkungen zur europäischen Verordnung über das internationale Verfahrensrecht für Ehescheidungen’, in Mansel, P. (ed.), Vergemeinschaftung des europäischen Kollisionsrechts, 2001, pp. 41 and 42 (in French, Kohler, C., ‘Libre circulation du divorce? Observations sur le règlement communautaire concernant les procédures en matière matrimoniale’, in de Moura Ramos, R.M. et al. (eds), Estudos em homenagem à Professora Doutora Isabel de Magalhães Collaço. Vol. I, 2002, pp. 231 and 233). 17 – Commission proposal of 17 July 2006 for a Council regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (COM(2006) 399 final). See also the Green Paper of 14 March 2005 on applicable law and jurisdiction in divorce matters (COM(2005) 82 final). As it has not to date been possible to achieve unanimity on the ‘Rome III’ Regulation, consideration is now being given to the option of proceeding by way of enhanced cooperation (see the press release on the 2887th meeting of the Justice and Home Affairs Council of 24 and 25 July 2008, which can be downloaded from http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/08/205&format=PDF&aged=0&language=EN&guiLanguage=en). For a more detailed commentary on the proposal, see Kohler, C., ‘Zur Gestaltung des europäischen Kollisionsrechts für Ehesachen: Der steinige Weg zu einheitlichen Regeln über das anwendbare Recht für Scheidung und Trennung’, Zeitschrift für das Gesamte Familienrecht (FamRZ), 2008, 1673. 18 – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). 19 – 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 (OJ 2009 L 7, p. 1). 20 – See Article 5 of the Hague Convention of 12 April 1930 (cited in footnote 14), which reads: ‘Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the country with which in the circumstances he appears to be in fact most closely connected.’ 21 – See the International Court of Justice (ICJ) judgment of 6 April 1955 in Nottebohm, ICJ Reports 1955, p. 4, at p. 22 et seq. 22 – See Article 5 of the Hague Convention of 12 April 1930 (cited in footnote 14; article reproduced in footnote 20). 23 – See in this regard the case-law cited in footnote 12, from which some parties to the proceedings infer that taking into account the more effective nationality is contrary to the fundamental freedoms. 24 – See recital 2 in the preamble to Regulation No 2201/2003. 25 – See the Borrás Report, paragraph 27. 26 – See the Borrás Report, paragraph 28. 27 – See the Borrás Report, paragraph 28. 28 – The recital is worded as follows: ‘The grounds of jurisdiction accepted in this Regulation are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction; the decision to include certain grounds corresponds to the fact that they exist in different national legal systems and are accepted by the other Member States.’ 29 – See my Opinion of 29 January 2009 in Case C-523/07 ‘A’ (case pending before the Court), points 76 and 80. 30 – See in this regard the comments of the United Kingdom and Ireland as reproduced in the Borrás Report (paragraph 34). 31 – See inter alia Case C-301/97 Netherlands v Council [2001] ECR I-8853, paragraph 43; Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 72; and Case C‑288/07 Isle of Wight Council and Others [2008] ECR I-0000, paragraph 47. 32 – See Case C‑110/99 Emsland-Stärke [2000] ECR I‑11569, paragraph 51 et seq., and Halifax and Others (cited in footnote 31), paragraph. 68 and the case-law cited. 33 – See to this effect Emsland-Stärke (cited in footnote 32), paragraph 52, and Halifax and Others (cited in footnote 31), paragraph 74. 34 – See the case-law cited in footnote 31.