Tribunal da Relação de Lisboa; 2021-06-22; 2379/22.4T8CSC-A.L1-2
Decision by national courts in the field of European Union law — ECLI:PT:TRL:2024:2379.22.4T8CSC.A.L1.2.88
Date: 2024-07-04
Subject matter: Judicial cooperation in civil matters
Origin: Portugal

82024PT0704(52)_ENG_SUMJURE
JURE summary
JURE summary
I. The rules governing international jurisdiction determine whether the Portuguese courts may exercise judicial authority over legal situations that have connections to one or more foreign legal systems. Article 59 of the Código de Processo Civil (CPC) (1), under the heading ‘International Jurisdiction’, provides: ‘Without prejudice to provisions of European (Union) regulations or other international instruments, Portuguese courts have international jurisdiction when any of the connecting factors referred to in Articles 62 and 63 apply or when the parties have conferred jurisdiction on them in accordance with Article 94.’
II. It follows from this provision that: Firstly, when European (Union) regulations or other instruments of international law are applicable, the international jurisdiction of Portuguese courts must be assessed exclusively in accordance with the rules contained therein. Secondly, if any of these instruments are applicable and do not confer jurisdiction on the Portuguese courts, jurisdiction cannot be established by applying national provisions.
III. In its 2016 decision, the […] Court, which had exclusive jurisdiction over the divorce proceedings between the plaintiff (a Portuguese national) and the defendant (a German national), ruled as follows: ‘The international jurisdiction of the German court is determined in accordance with Article 3(1)(a), second indent of the new Brussels II Regulation (2)… given that the spouses’ last habitual residence was in the Federal Republic of Germany and that the husband continues to reside there. At the time the divorce proceedings were pending, no parallel proceedings were pending before another court (lis pendens). International jurisdiction over related matters, namely claims concerning pension rights equalisation, participation in matrimonial property and household contents, is governed by Section 98(2) of the FamFG (3)’.
IV. An action seeking judicial authorisation for spousal consent to dispose of joint property or property belonging to one of the spouses does not aim to dissolve the marriage or to divide property after divorce. It is also not an action in rem concerning the ownership of the property for which the consent of the other spouse is sought. Consequently, it does not fall within the scope of the Brussels I Regulation (recast) (4).
V. If, in the divorce proceedings still pending in Germany, the German court has already ruled in favour of its exclusive jurisdiction in relation to the divorce proceedings (international jurisdiction for related matters, i.e. claim concerning pension rights equalisation, participation in matrimonial property, and household contents pursuant to Section 98(2) of the FamFG) without any reference to the action for the supply of marital consent, there is no reason to refer the case to the Court of […] for a decision on whether it has jurisdiction for the present supply action. This is because the German court has already defined the scope of its exclusive jurisdiction positively, and it does not have exclusive jurisdiction to decide the matter within the scope of Regulation 2016/1103 (5).
VI. If the plaintiff is unable to pursue her claim through proceedings initiated in Portugal, it will be difficult for her to have her rights as a co-owner of the property determined by the courts. The circumstances of the case indicate a strong connection with the Portuguese legal system, particularly since the asset in question (a real estate property) is closely linked to the claim to terminate the joint ownership she shares with her siblings in respect of that property, which is located in Portugal, where the plaintiff is domiciled (Article 62(a) and (c) of the CPC). As there is no evidence of an abuse of the right to initiate proceedings before the Portuguese courts or an intent to circumvent international jurisdiction rules, the general rule (Article 59 of the CPC) must be applied.
(1) Código de Processo Civil (Code of Civil Procedure).
(2) 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.
(3) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) (German Law on proceedings in family matters and matters of voluntary jurisdiction).
(4) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(5) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.