Bundesgerichtshof; 2020-10-28; XII ZB 187/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:281020BXIIZB187.20.0
Date: 2020-10-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE1028(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerned a request for a preliminary ruling submitted to the Court of Justice of the European Union regarding the interpretation of the new Brussels II Regulation (1) in relation to an out-of-court private divorce based on a joint declaration of spouses towards an Italian registrar, and the dispensability of a recognition of the divorce prior to the registration of the divorce in a German register of marriages. The case was dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
On 30 March 2017, both spouses (hereinafter ‘the defendants’) went in person to the Registry in Parma where they declared their mutual intention to get divorced. Later, the defendants applied with the Registrary Standesamt Mitte von Berlin (hereinafter ‘plaintiff 1’) to register the divorce in the German register of marriages.
However, plaintiff 1 raised the question of whether the registration should not be preceded by a recognition under Article 107 FamFG (2) and submitted the case through its Supervision Authority (hereinafter ‘plaintiff 2’) to a district court for a decision. The court instructed plaintiff 1 to register the divorce only after it has been recognised by the respective senate department of the city of Berlin. Subsequently, the defendants filed a request for recognition with the senate department which was, however, rejected by the senate department citing lack of necessity to be recognised. The appeal lodged by the defendants against the decision of the district court was successful. The Court of Appeal modified the decision and instructed plaintiff 1 not to condition the registration in the register of marriages by a prior recognition by the senate department. Plaintiff 2 filed an admissible revision against that decision.
The Supreme Court was of the opinion that the solution to the question of whether a decision made by an Italian registry fell into the scope of the new Brussels II Regulation depended on the interpretation of the expression ‘decision’ used in the Regulation. Therefore, the Supreme Court stayed the proceedings and submitted to the Court of Justice of the European Union a request for a preliminary ruling in order to clarify whether a divorce based on Article 12 of the Italian Law Decree no. 132 from 12 September 2014 constituted a decision regarding the divorce of a marriage within the meaning of the new Brussels II Regulation.
Should the question be negated, the revision of plaintiff 2 would be justified and lead to the restoration of the decision of the district court. Otherwise, the revision would have to be dismissed.
(1) 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.
(2) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).