Opinion of the Advocate General — ECLI:EU:C:2019:649
Date: 2019-07-29
Language of the case: Romanian
Subject matter: Justice and home affairs;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-468/18 — 1 
Case C-468/18 
Request for a preliminary ruling 
Date lodged:  
18 July 2018 
Referring court:  
Judecătoria Constanța (Romania) 
Date of the decision to refer:  
11 July 2018 
Applicant:  
R 
Defendant:  
P 
  
[...] 
JUDECĂTORIA CONSTANȚA (Court of First Instance, Constanta, 
Romania) 
SECȚIA CIVILĂ (Civil Chamber) 
[...] 
Request for a preliminary ruling 
The Judecătoria Constanța (Court of First Instance, Constanta), in view of the 
ruling given at the conclusion of the hearing on 26 March 2018, acting ex officio, 
pursuant to [the second paragraph of] Article 267 TFEU, requests  
THE COURT OF JUSTICE OF THE EUROPEAN UNION 
to give a preliminary ruling on the following questions concerning the 
interpretation of Article 3(a) and (d) and Article 5 of Regulation No 4/2009, which 
is necessary in order for it to resolve the dispute [...] before it: 
EN 
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1. In the context of an action before the courts of a Member State which 
comprises three heads of claim concerning (i) the divorce of the parents of a minor 
child, (ii) parental responsibility for that minor child and (iii) maintenance 
obligations with regard to that minor child, may Article 3(a) and (d) and 
Article 5 of Regulation No 4/2009 be interpreted as meaning that the court 
seised of the divorce petition, being also a court for the place where the 
defendant is habitually resident and the court before which the defendant has 
entered an appearance, has jurisdiction to give a decision on the claim 
concerning maintenance obligations in respect of the minor child, 
notwithstanding its finding that it has no jurisdiction in the matter of 
parental responsibility for the minor child, or may the claim concerning 
maintenance obligations be decided only by a court having jurisdiction to 
adjudicate the claim concerning parental responsibility for the minor child? 
2. In the circumstances relating to the jurisdiction of the national court 
described above, is the claim concerning maintenance obligations with regard 
to the minor child ancillary to the claim concerning parental responsibility, 
within the meaning of Article 3(d) of Regulation No 4/2009? 
3. In the event that the second question is answered in the negative, is it in the 
best interests of the child for a court of a Member State which has jurisdiction 
pursuant to Article 3(a) of Regulation No 4/2009 to decide the claim 
concerning the maintenance obligations of the parents toward the minor 
child of the marriage of which the dissolution is sought, notwithstanding the 
fact that that court has found itself to have no jurisdiction in the matter of 
parental responsibility and has held, with the force of res judicata, that the 
conditions laid down by Article 12 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, are not fulfilled? 
I. Subject matter of the dispute ‒ Relevant facts 
1 By an action registered at the Judecătoria Constanța on 29 September 2016, [...] 
the applicant R issued proceedings against the defendant P seeking an order in 
the following terms: the dissolution of the marriage entered into on 15 August 
2015 in Romania; the fixing of the place of residence of the minor child M [Or. 2], 
born in Belfast on 8 November 2015, with her mother; the attribution of sole 
parental responsibility to the applicant, the child’s mother, with an obligation for 
the defendant to pay maintenance for the child. 
2 According to the evidence submitted, the child was two years and eight months 
old at the time when the reference was made to the Court of Justice and lives with 
her mother, the applicant, in Belfast, Northern Ireland, United Kingdom. 
3 From the documents before the referring court it is apparent that both the 
applicant and the defendant are Romanian nationals and that they moved to 
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3 
Northern Ireland and lived there together until 2016, when they decided to 
separate. The defendant has left the family home and returned to Romania, while 
the applicant has remained in Belfast, with the young child. 
4 The defendant has disputed the jurisdiction of the Romanian court. The 
Romanian court has declared that it has jurisdiction in relation to the divorce 
petition on the basis of Article 3(b) of Regulation No 2201/2003. 
5 At the hearing held on 8 June 2017, the court ordered the separation of the head of 
claim concerning the exercise by the applicant alone of parental responsibility 
over the child and the fixing of the child’s place of residence with the applicant, 
the child’s mother, and of the [head of] claim concerning payment by the 
defendant of maintenance for the child. In consequence of that decision to 
separate [those heads of claim], there are now two new sets of proceedings, 
relating to the matters just described. 
6 In the new proceedings relating to the claim concerning the exercise of parental 
responsibility over the child, the court has held that the cumulative conditions laid 
down by Article 12(1) [of Regulation No 2201/2003] for the prorogation of 
jurisdiction are not fulfilled, for the reason that it is not in the best interests of the 
child that the Romanian courts should give a ruling on that claim. Similarly, the 
court has held, in accordance with Article 8(1) of Regulation No 2201/2003, that 
the child is habitually resident in the United Kingdom, where she was born and 
where she lived with her parents and where she currently lives. Consequently, the 
court has held that the Romanian courts do not have jurisdiction to deal with this 
claim and that jurisdiction with regard to the claim concerning parental 
responsibility lies with the courts of the United Kingdom, where the child is 
habitually resident. The parties have not appealed against the judgment at first 
instance in which the Romanian court held that it had no jurisdiction to give a 
ruling on the claim concerning the exercise of parental responsibility over the 
child. 
7 In the new proceedings relating to the claim concerning the obligation for the 
defendant to pay maintenance for the child, the Romanian court has declared that 
it has jurisdiction in view of the defendant’s current place of residence and 
pursuant to Article 3(a) of Regulation No 4/2009. 
8 Both parties are agreed that it is appropriate to make a reference to the Court of 
Justice. 
II. Relevant national law and relevant national case-law 
9 The substantive law applicable to dispute, in so far as the merits are concerned, is 
not relevant to the present request for a preliminary ruling, inasmuch as the court 
finds itself at the juncture where it must establish international jurisdiction, which, 
under Romanian procedural law, triggers the initiation of the entire proceedings 
and determines whether the case must be continued or discontinued. 
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10 Other provisions of national procedural law are equally irrelevant to the questions 
referred for a preliminary ruling, inasmuch as the court considers that, in the 
establishing of jurisdiction in the matter [Or. 3] of the maintenance obligation 
under discussion, the provisions of Articles 3 and 5 of Regulation No 4/2009 are 
directly applicable and take precedence. Moreover, [...] Title VII of the Codul de 
procedură civilă român (Romanian Code of Civil Procedure) (Legea nr. 134/2010 
privind Codul de procedură civilă, astfel cum aceasta a fost modificată, 
completată și republicată în Monitorul Oficial al României, Partea I, nr. 365 din 
30 mai 2012) (Law No 134 establishing the Code of Civil Procedure, as amended 
and republished in the Official Journal of Romania, Part I, No 365 of 30 May 
2012), entitled ʽInternational Civil Procedure’, which lays down the procedure to 
be followed in disputes having cross-border aspects, refers, in Article 1065 
thereof, to the primary application of EU Law and only in the alternative to the 
rules of the Code. 
11 In so far as concerns relevant national case-law, the Romanian courts have 
consistently applied the case-law of the Court of Justice of the European Union in 
the interpretation of Regulation No 4/2009, although the referring court has been 
unable to identify any case in which it was necessary to determine whether the 
court or tribunal seised of a divorce petition could give a ruling on an application 
for maintenance for a minor child of the marriage even though the courts of 
another Member State had jurisdiction in relation to an application concerning 
parental responsibility for the child in question. The Romanian courts have not 
made a reference to the Court of Justice on this issue and there are at present no 
preliminary ruling proceedings pending before the Court of Justice concerning the 
interpretation of Article 3(a) and (d) and Article 5 of Regulation No 4/2009 in 
circumstances such as these. 
III. Relevant provisions of EU law 
III. A. 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, corrigendum OJ 2016 
L 297, p. 25) 
12 Recitals 5 and 12: 
ʽ(5) In order to ensure equality for all children, this regulation covers all 
decisions on parental responsibility, including measures for the protection of the 
child, independently of any link with a matrimonial proceeding. 
… 
(12) The grounds of jurisdiction in matters of parental responsibility established 
in the present regulation are shaped in the light of the best interests of the child, in 
particular on the criterion of proximity. This means that jurisdiction should lie in 
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the first place with the Member State of the child’s habitual residence, except for 
certain cases of a change in the child’s residence or pursuant to an agreement 
between the holders of parental responsibility.’ 
13 Article 1: 
ʽ1. This regulation shall apply, whatever the nature of the court or tribunal, in 
civil matters relating to: 
(a) divorce, legal separation or marriage annulment; 
(b) the attribution, exercise, delegation, restriction or termination of parental 
responsibility. 
… 
(3) This regulation shall not apply to: 
… 
(e) maintenance obligations; 
[...]’ [Or. 4] 
14 Article 2, point (7): 
‘The term “parental responsibility” shall mean all rights and duties relating to the 
person or the property of a child which are given to a natural or legal person by 
judgment, by operation of law or by an agreement having legal effect. The term 
shall include rights of custody and rights of access’. 
15 Article 8: 
‘1. The courts of a Member State shall have jurisdiction in matters of parental 
responsibility over a child who is habitually resident in that Member State at the 
time the court is seised. 
2. Paragraph 1 shall be subject to Articles 9, 10 and 12.’ 
16 Article 12: 
‘1. The courts of a Member State exercising jurisdiction by virtue of Article 3 
on an application for divorce, legal separation or marriage annulment shall have 
jurisdiction in any matter relating to parental responsibility connected with that 
application where: 
(a) at least one of the spouses has parental responsibility in relation to the child; 
and 
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(b) the jurisdiction of the courts has been accepted expressly or otherwise in an 
unequivocal manner by the spouses and by the holders of parental 
responsibility, at the time the court is seised, and is in the superior interests 
of the child. 
… 
3. The courts of a Member State shall also have jurisdiction in relation to 
parental responsibility in proceedings other than those referred to in paragraph 1 
where: 
(a) the child has a substantial connection with that Member State, in particular 
by virtue of the fact that one of the holders of parental responsibility is 
habitually resident in that Member State or that the child is a national of that 
Member State; 
and 
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an 
unequivocal manner by all the parties to the proceedings at the time the 
court is seised and is in the best interests of the child.’ 
III. B. 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 
17 Recitals 1 and 3 
Regulation No 4/2009 and, inter alia, Regulations No 44/2001 and No 2201/2003 
seek the adoption of measures relating to judicial cooperation in civil matters 
having cross-border implications and aim, inter alia, to promote the compatibility 
of the rules applicable in the Member States concerning the conflict of laws and of 
jurisdiction. 
18 Recital 8 of Regulation No 4/2009 recalls that, in the context of that regulation, 
inter alia, the 2007 Hague Convention should be taken into account. 
19 Recital 15: 
‘In order to preserve the interests of maintenance creditors and to promote the 
proper administration of justice within the European Union, the rules [Or. 5] on 
jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. 
The circumstance that the defendant is habitually resident in a third State should 
no longer entail the non-application of Community rules on jurisdiction, and there 
should no longer be any referral to national law. This regulation should therefore 
determine the cases in which a court in a Member State may exercise subsidiary 
jurisdiction.’ 
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20 Article 3: 
‘In matters relating to maintenance obligations in Member States, jurisdiction 
shall lie with: 
(a) the court for the place where the defendant is habitually resident, or 
(b) the court for the place where the creditor is habitually resident, or 
(c) the court which, according to its own law, has jurisdiction to entertain 
proceedings concerning the status of a person if the matter relating to 
maintenance is ancillary to those proceedings, unless that jurisdiction is 
based solely on the nationality of one of the parties, or 
(d) the court which, according to its own law, has jurisdiction to entertain 
proceedings concerning parental responsibility if the matter relating to 
maintenance is ancillary to those proceedings, unless that jurisdiction is 
based solely on the nationality of one of the parties.’ 
21 Article 5: 
‘Apart from jurisdiction derived from other provisions of this regulation, a court 
of a Member State before which a defendant enters an appearance shall have 
jurisdiction. This rule shall not apply where appearance was entered to contest the 
jurisdiction.’ 
IV. Grounds for the national court’s request for a preliminary ruling 
22 The question of [EU] law which is before the national court concerns the 
interpretation of Article 3(a) and (d) and Article 5 of Regulation No 4/2009 in 
the situation where the defendant has entered an appearance before the national 
court and has not disputed the jurisdiction of that court, and where the national 
court has declared that it has jurisdiction in relation to the divorce petition and that 
it has no jurisdiction in relation to the matter of parental responsibility. 
23 This question of law is relevant to the case before the national court, even though 
it has declared that it has jurisdiction. Under national law, the court must verify ex 
officio whether it has jurisdiction, but the general lack of jurisdiction of the court 
may be pleaded by the parties or raised by the court at any stage of the 
proceedings. This means that, if the court finds ex officio that it has jurisdiction, it 
will still be possible to plead that it has no jurisdiction. The defendant has put 
forward no such plea, instead taking the view that it is necessary to refer the 
matter to the Court of Justice of the European Union. The applicant too takes 
that view. The national court has not considered the merits of the dispute, since, 
like the parties, it too considers it appropriate to make a reference to the Court of 
Justice. 
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24 Accordingly, in so far as concerns the claim for the defendant to pay maintenance 
to the child, the court will decide the issue of the international jurisdiction of the 
Romanian courts in accordance with the interpretation given of the relationship 
between Article 3(a) and Article 3(d) and Article 5 of Regulation No 4/2009. 
[Or. 6] 
25 The national court seeks to ascertain whether the criteria for the attribution of 
jurisdiction laid down in paragraphs (a) and (d) of Article 3 of Regulation 
No 4/2009 are, in light of the use of the word ʽor’ in Article 3, mutually exclusive, 
or whether the use of ʽor’ means that the court having jurisdiction in relation to 
the divorce proceedings may also be the court seised of a claim concerning 
maintenance obligations toward the minor child. 
26 Similarly, the national court seeks to ascertain whether the criteria for the 
attribution of jurisdiction laid down in paragraphs (a) and (d) of Article 3 of 
Regulation No 4/2009 exclude the application of Article 5 of that regulation. 
27 In other words, the national court seeks to establish whether, in circumstances 
such as those of the present case, an application for maintenance for a minor can 
be dealt with only by the court having jurisdiction to hear the application for 
parental responsibility over the minor, or whether the maintenance application 
may be adjudicated by the court having jurisdiction in the divorce of the minor’s 
parents. 
28 In accordance with Article 3(a) of Regulation No 4/2009, the court for the place 
where the defendant is habitually resident has jurisdiction in relation to 
maintenance obligations. In the present case, the defendant is habitually resident 
in Romania. 
29 In accordance with Article 3(d) of Regulation No 4/2009, the court which, 
according to its own law, has jurisdiction to entertain proceedings concerning 
parental responsibility has jurisdiction in relation to maintenance obligations if the 
matter relating to maintenance is ancillary to those proceedings, unless that 
jurisdiction is based solely on the nationality of one of the parties. In the case 
pending before the national court, the application for maintenance was formulated 
as a claim ancillary to the divorce petition and, following the separation of the 
heads of claim, the three applications are now the subject of three separate sets of 
proceedings. 
30 In accordance with Article 5 of the regulation, except where jurisdiction is 
determined by other provisions of the regulation, the court of the Member State 
before which the defendant enters an appearance has jurisdiction, although that 
provision does not apply if the purpose of the defendant’s appearance is to dispute 
jurisdiction. In so far as the facts of the present case are concerned, the defendant 
appeared before the national court and did not put forward a plea disputing the 
jurisdiction of that court, but that was because he considered it appropriate that the 
matter be referred to the Court of Justice of the European Union. 
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31 Interpretation of the relationship between Article 3(a) and Article 3(d) of 
Regulation No 4/2009, in cases such as the present, leads the court to different 
solutions. 
32 If indeed Article 3(d) does not preclude the application of Article 3(a), the 
Romanian court, which has held that it does not have jurisdiction in the matter of 
parental responsibility, may find that it has jurisdiction in relation to the 
application for the defendant to pay maintenance for the child, as a court for the 
place where the defendant is habitually resident. Consequently, the national 
court would decide the merits of the application concerning the father’s obligation 
to pay maintenance for the child — a situation which would call into question the 
ancillary nature of that application in relation to the application concerning 
parental responsibility. A further point to consider would then be whether it would 
be in the best interests of the child for the national court to give a ruling on such 
an application, given the criterion of proximity: as mentioned, the child was born 
in Belfast, was two years and eight months old when the reference was made to 
the Court of Justice and lives with her mother, the applicant, in Belfast, Northern 
Ireland, United Kingdom. [Or. 7] 
33 If it must accept that it does have jurisdiction to give a ruling on the application 
for maintenance, on the basis of Article 3(a) of Regulation (EC) No 4/2009, the 
national court observes that this would call into question both the ancillary nature 
of that application and the best interests of the child, inasmuch as the national 
court held that it has no jurisdiction in the matter of parental responsibility for 
reasons specifically relating to the interests of the child and the criterion of 
proximity, taking the view that the conditions laid down in Article 12 of 
Regulation No 2201/2203 were not fulfilled. 
34 Similarly, if Article 3(d) does not preclude the application of Article 5, the 
Romanian court, which has held that it does not have jurisdiction in the matter of 
parental responsibility, would be able to hold that it has jurisdiction in relation to 
the application for the defendant to pay maintenance for the child, as the court 
before which the defendant has entered an appearance. However, if that were 
the case, the application for maintenance, being ancillary to the application 
concerning parental responsibility, could not be decided by the national court 
because it has upheld the argument that it had no jurisdiction in the matter of 
parental responsibility and declined jurisdiction. 
35 If, in circumstances such as those here at issue, the application for maintenance 
for the child could be decided only by the court which gives a ruling on the 
application concerning parental responsibility, then the Romanian court would 
take neither Article 3(a) nor Article 5 of the regulation into consideration and 
would find that it had no jurisdiction in relation to the application for the 
defendant to pay maintenance for the child. 
36 Among the case-law of the Court of Justice of the European Union, the national 
court has identified the judgment of 15 July 2015, A., C-184/14. In that case, the 
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Court held that, in the event that a court of a Member State is seised of 
proceedings involving the separation or dissolution of a marital link between the 
parents of a minor child, and a court of another Member State is seised of 
proceedings in matters of parental responsibility involving that same child, an 
application relating to maintenance concerning the child is ancillary only to the 
proceedings concerning parental responsibility, within the meaning of Article 3(d) 
of Regulation No 4/2009. The Court held that, by its nature, an application 
relating to maintenance in respect of minor children is intrinsically linked to 
proceedings concerning matters of parental responsibility (paragraph 40). 
Similarly, the Court held that an application involving maintenance in respect of 
minor children is not necessarily linked to divorce or separation proceedings. 
Moreover, such proceedings do not necessarily lead to obligations to pay 
maintenance towards a minor child being imposed (paragraph 42). However, the 
court with jurisdiction to entertain proceedings concerning parental responsibility 
is in the best position to evaluate in concreto the issues involved in the application 
relating to child maintenance, to set the amount of that maintenance intended to 
contribute to the child’s maintenance and education costs, by adapting it, 
according to (i) the type of custody (either joint or sole) ordered, (ii) access rights 
and the duration of those rights and (iii) other factual elements relating to the 
exercise of parental responsibility brought before it (paragraph 43). 
37 Having identified and briefly analysed the circumstances of the present case, 
which led it to have doubts about the interpretation of Article 3(a) and (d) and 
Article 5 of Regulation No 4/2009, the national court observes that, by 
comparison with the judgment in Case C-184/14, the following circumstances of 
the present case are different. [Or. 8] 
38 First of all, in the present case, the defendant entered an appearance and did not 
plead that the national court has no jurisdiction. 
39 In the second place, in the case in A., C-184/14, at the time when the court hearing 
the divorce proceedings gave its ruling on its jurisdiction in relation to the 
application for maintenance for the child, the court for the place where the child 
habitually resided was already seised of an application concerning parental 
responsibility. In the present case, however, by the same action, the Romanian 
court is seised of the three heads of claim described above. 
40 In accordance with national law, in such a case, the matters of parental authority 
and maintenance are ancillary to the divorce petition (Article 931(2) of the Code 
of [Civil] Procedure). 
41 However, the national court is aware that the scope of the concept of ‘ancillary 
matter’ referred to in Article 3(d) of Regulation No 4/2009 cannot be left to the 
discretion of the courts of each Member State according to their national law, 
since it follows from the need for uniform application of EU law that, since 
Article 3(d) of the regulation does not refer to the right of Member States for the 
purpose of determining the meaning and scope of that concept, it must receive an 
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autonomous and uniform interpretation throughout the European Union 
(A., C-184/14, paragraphs 30 and 31). 
42 That was the reason for which the national court held that it had jurisdiction in 
relation to the divorce and held that it had no jurisdiction in relation to the 
application concerning parental responsibility for the child, finding that the courts 
of the place where the child is habitually residence have jurisdiction in that matter. 
43 However, at the time when the Romanian court is considering whether it has 
jurisdiction in relation to the application for the defendant to pay maintenance for 
the child, the courts of the United Kingdom have not yet been seised of any 
application concerning parental responsibility. 
44 It is those two circumstances of the present case which create the difficulty in 
resolving the issue of [EU] law described. 
V. View of the national court 
45 The national court is of the opinion that, in circumstances such as those of the 
present case, it is not in the best interests of the child for a court of a Member 
State which has held that it has jurisdiction on the basis of Article 3(a) of 
Regulation No 4/2009 to give a ruling on an application concerning maintenance 
which arises from a marriage the dissolution of which is sought, if that same court 
has found itself to have no jurisdiction in the matter of parental responsibility and 
has held, with the force of res judicata, that the conditions laid down by Article 12 
of Regulation No 2201/2003 are not fulfilled […] 
46 Consequently, the application for maintenance should be regarded as 
ancillary to the application concerning parental responsibility, within the 
meaning of Article 3(d) of Regulation No 4/2009 and, in the event that a 
national court is seised of those applications, the referring court should, given 
that ancillary nature, hold that it has no jurisdiction to give a ruling on either 
application. [Or. 9] 
47 There are also considerations of a practical nature that support this conclusion. In 
cases of this kind, in view of the taking of evidence (the national court being 
required to apply Article 4 of Council Regulation (EC) No 1206/2001 of 28 May 
2001 on cooperation between the courts of the Member States in the taking of 
evidence in civil or commercial matters, pursuant to which it is for the courts of 
the Member State where the child is habitually resident to hear the child and to 
draft reports of socio-psychological inquiries), the duration of the divorce 
proceedings before the national court would be much shorter, inasmuch as it is in 
the best interests of the child for the parents to have swift recourse to the courts 
for the place where the child is habitually resident, in order that those courts may 
expeditiously decide the matters of parental responsibility and maintenance. 
Constanta, 11 July 2018 [...] 
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