Order;Summary — ECLI:EU:C:2019:816
Date: 2019-10-03
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-759/18 — 1 
Case C-759/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 December 2018 
Referring court: 
Judecătoria Rădăuţi (Romania) 
Date of the decision to refer: 
19 November 2018 
Applicant: 
OF 
Defendant: 
PG 
  
Subject matter of the main proceedings 
Action for divorce 
Subject matter and legal basis of the reference 
Request under Article 267 TFEU seeking interpretation of Article 2(7), 
Article 3(1), Article 12(1)(b) and Article 17 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 
Questions referred 
(1) Should Article 3(1) of Regulation (EC) No 2201/2003 be interpreted as 
meaning that a failure on the part of the defendant to raise an objection that the 
Romanian courts lack international jurisdiction to give a ruling on a case 
concerning a ‘divorce involving a minor’ amounts to his giving tacit consent to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-759/18 
 
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the case being decided by the court seised by the applicant, where the parties have 
their habitual residence in another Member State [of the European Union] (in the 
present case, Italy) and the divorce proceedings have been brought before a court 
of the State of which the parties are nationals? 
(2) Should [Article] 3(1) and [Article] 17 of Regulation (EC) No 2201/2003 be 
interpreted as meaning that a court may or must raise, of its own motion, an 
objection that the Romanian courts lack international jurisdiction to give a ruling 
on a case concerning a ‘divorce involving a minor’, where there has been no 
agreement between the parties, who are resident in another Member State [of the 
European Union] (in the present case, Italy), regarding the choice of the court 
having jurisdiction (resulting in the action being dismissed as not falling within 
the jurisdiction of the Romanian courts), which has priority over Article 915(2) of 
the Codul de procedură civilă (Code of Civil Procedure), pursuant to which an 
objection may be raised that the Judecătoria Rădăuţi (Court of First Instance, 
Rădăuţi) does not have exclusive territorial jurisdiction (resulting in its declining 
jurisdiction to give a ruling on the case in favour of the Judecătoria Sectorului 5 
Bucureşti (Court of First Instance, Sector 5, Bucharest) and the case being decided 
on the merits), especially given that those provisions are less favourable than the 
provision of national legislation concerned (Article 915(2) of the Codul de 
procedură civilă (Code of Civil Procedure))? 
(3) Should the expression contained in Article 12(1)(b) of Regulation (EC) 
No 2201/2003, namely ‘the jurisdiction of the courts has been accepted ... 
otherwise in an unequivocal manner by the spouses and by the holders of parental 
responsibility, at the time the court is seised’, be interpreted as meaning that, 
where the parties, who are habitually resident in another Member State [of the 
European Union] (in the present case, Italy), choose as the court having 
jurisdiction to give a ruling in divorce proceedings a court of the State of which 
they are nationals (the Judecătoria Rădăuţi (Court of First Instance, Rădăuţi) in 
Romania), that court automatically also has jurisdiction to rule on heads of claim 
concerning ‘the exercise of parental authority, the child’s place of habitual 
residence and the determination of parental contributions towards the costs of the 
child’s care and upbringing’? 
(4) Should the concept of ‘parental responsibility’ referred to in Article 2(7) and 
Article 12 of Regulation (EC) No 2201/2003 be interpreted as also including the 
concepts of ‘parental authority’ referred to in Article 483 of the Codul civil (Civil 
Code), ‘the child’s place of habitual residence’ covered by Article 400 of the 
Codul civil (Civil Code), and ‘parental contributions towards the costs of the 
child’s care and upbringing’ covered by Article 402 of the Codul civil (Civil 
Code)? 
OF 
 
3 
Provisions of EU law relied on 
Article 2(7), Article 3(1), Article 12(1)(b) and Article 17 of Regulation 
No 2201/2003 
Provisions of national law relied on 
Article 915(1) of the Codul de procedură civilă (Code of Civil Procedure), 
pursuant to which the court of first instance of the district where the spouses had 
their most recent joint habitual residence is to have jurisdiction in divorce 
proceedings. 
Article 915(2) of the Codul de procedură civilă (Code of Civil Procedure), 
pursuant to which, if neither the applicant nor the defendant is resident in 
Romania, the parties may agree to file divorce proceedings before any Romanian 
court of first instance. If there is no such agreement, the Judecătoria Sectorului 5 
al municipiului Bucureşti (Court of First Instance, Sector 5, Bucharest) is to have 
jurisdiction in divorce proceedings. 
Article 919 of the Codul de procedură civilă (Code of Civil Procedure), pursuant 
to which, where the spouses have minor children, the court is to rule on the 
exercise of parental authority and parental contributions towards the costs of the 
children’s care and upbringing, even where it has not been requested to do so in 
the application for divorce. 
Article 129(2), Article 130(1) and (2), Article 131(1) and Articles 132, 1067 and 
1071 of the Codul de procedură civilă (Code of Civil Procedure) relating to the 
jurisdiction of courts. 
Articles 400, 402 and 483 of the Codul civil (Civil Code), which concern the 
concepts of ‘the child’s place of habitual residence’, ‘parental contributions 
towards the costs of the child’s care and upbringing’ and ‘parental authority’, 
respectively. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By application entered in the register of the Judecătoria Rădăuţi (Court of First 
Instance, Rădăuţi, Romania) (‘the referring court’) on 3 September 2018, the 
applicant, OF, has requested, in the proceedings between her and the defendant, 
PG, that that court dissolve their marriage, which took place in Romania in 2000. 
2 According to the referring court, the parties, who are Romanian nationals, have 
been habitually resident in Italy for over 15 years. In 2012 an Italian court gave a 
ruling with regard to their de facto separation and awarded exclusive custody of 
their minor child, born in 2001, to the mother, ruling that the father was obliged to 
pay certain maintenance costs in respect of the child. At the same time, the Italian 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-759/18 
 
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court gave a ruling with regard to the father’s right to maintain personal ties with 
the child. The referring court observes that the parties have established stable links 
with Italian society, having integrated into that society, and that the child has lived 
in Italy with its mother from the age of 18 months. 
3 The parties did not file a written agreement with regard to the choice of the 
referring court as the court having jurisdiction to give a ruling in the divorce 
proceedings, and the applicant indicated only the defendant’s home address in 
Romania, and not his residential address in Italy. Nevertheless, the procedure for 
summoning the defendant was lawfully carried out, because the defendant’s 
mother signed the proof of receipt of the summons. At the same time, both the 
applicant’s lawyer and the defendant’s mother have stated that the defendant PG is 
aware of the divorce proceedings and the documents added to the case file, which 
have been served on him. 
4 On the other hand, even if the applicant has not requested the referring court to 
give a ruling with regard to the measures concerning the parties’ minor child 
(relating to the exercise of parental authority, the child’s place of habitual 
residence and the maintenance obligations in respect of that child), that court is 
also required, pursuant to Article 919(2) of the Codul de procedură civilă (Code of 
Civil Procedure), to give a ruling with regard to those measures of its own motion. 
Similarly, since the child is over 10 years old, the referring court is also obliged to 
hear that child in camera. 
Succinct presentation of the reasons for the reference 
5 The referring court observes that there are a number of divorce proceedings 
pending before the Romanian courts in which the parties are Romanian nationals 
but have their habitual residence in another Member State of the European Union. 
According to the referring court, this is due to the fact that divorce proceedings in 
Romania are simplified, with it being possible for a ruling to be given even at the 
first hearing. However, there are several cases in which the defendant in the 
divorce proceedings is not aware of the existence of those proceedings, because he 
was summoned by means of public advertisement. In addition, it is more difficult 
for Romanian courts to gather evidence than it is for the courts of the State where 
the parties are resident. 
6 Since the parties in the present case have been resident in Italy for over 15 years 
and an Italian court gave a ruling with regard to their de facto separation in 2012, 
also ordering measures with regard to the child, it is essential for the referring 
court to ascertain whether, in the event that there is no agreement between the 
parties regarding the court having jurisdiction, it must decline jurisdiction to give 
a ruling on the case in favour of the Judecătoria Sectorului 5 Bucureşti (Court of 
First Instance, Sector 5, Bucharest) or whether it must dismiss the action as not 
falling within the jurisdiction of the Romanian courts. 
OF 
 
5 
7 At the same time, in the event that the parties choose the referring court as the 
court having jurisdiction to give a ruling in the present case, it is important for the 
referring court to ascertain whether it automatically also has jurisdiction to rule on 
the exercise of parental authority with regard to the child, the determination of that 
child’s place of habitual residence, and maintenance obligations in the event that 
there is no explicit agreement between the parties with regard to those matters, in 
so far as those matters are included in the concept of ‘parental responsibility’ 
referred to in Article 2(7) of Regulation No 2201/2003, as Romanian judicial 
practice is not uniform in that regard. 
8 According to the referring court, it follows from a logical legal interpretation of 
Article 3 of Regulation No 2201/2003 that alternative territorial jurisdiction is 
provided for only between the courts listed in Article 3(1)(a) of that regulation, as 
shown by the use of the word ‘or’, and that such jurisdiction is excluded between 
the courts referred to in Article 3(1)(a) and Article 3(1)(b) thereof, just as the 
uncertain nature of that jurisdiction (if left to the applicant’s discretion) would 
also be excluded. From the point of view of the legislative techniques used, if 
there had been a desire to establish alternative territorial jurisdiction between the 
courts referred to in Article 3(1)(a) and Article 3(1)(b), it would have been 
necessary to use the same words, namely ‘either’ and ‘or’, or another equivalent. 
9 According to the referring court, the EU legislature intended to give priority not to 
the nationality of the parties but to the place where they are habitually resident, 
given that it is easier and faster to gather evidence, or a part thereof, in the place 
of residence. Accordingly, the criterion of the nationality of the parties laid down 
in Article 3(1)(b) of Regulation No 2201/2003 is subsidiary to the criterion laid 
down in Article 3(1)(a) thereof, being applicable only in cases where there is no 
way of determining the court having jurisdiction on the basis of the spouses’ place 
of residence. 
10 With regard to the interpretation of Article 3(1) of Regulation No 2201/2003, the 
referring court considers that a failure on the part of the defendant to raise an 
objection that the Romanian courts lack international jurisdiction cannot amount 
to his giving tacit consent to the case being decided by the court seised by the 
applicant, where the parties have their habitual residence in another Member State 
of the European Union and the divorce proceedings have been brought before a 
court of the State of which the parties are nationals. There are many cases in 
which the defendant is unaware of the existence of divorce proceedings 
notwithstanding that he has been lawfully summoned, under the provisions of 
national legislation regarding summoning, either at his last address in Romania 
(and the proof of service of the summons has been signed by a family member) or 
via public advertisement (because the applicant is unaware of or, in bad faith, does 
not indicate the defendant’s place of residence). 
11 The referring court considers that, where there is no agreement between the 
parties, who are resident in another Member State of the European Union, 
regarding the choice of the court having jurisdiction, Article 3(1) and Article 17 of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-759/18 
 
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Regulation No 2201/2003 should be interpreted as meaning that the court must 
raise, of its own motion, an objection that the Romanian courts lack international 
jurisdiction (resulting in the dismissal of the action as not falling within the 
jurisdiction of the Romanian courts) which has priority over Article 915(2) of the 
Codul de procedură civilă (Code of Civil Procedure), given that, on the one hand, 
the provisions of that regulation have direct effect and take precedence over the 
rules of national legislation which are contrary to those provisions and, on the 
other, an objection that the Romanian courts lack international jurisdiction is a 
public policy objection which may be invoked at any stage of the proceedings and 
has priority over an objection of a lack of exclusive territorial jurisdiction. 
12 Lastly, according to the referring court, the expression ‘parental responsibility’ 
referred to in Article 2(7) and Article 12(1)(b) of Regulation No 2201/2003 should 
be interpreted as meaning that, where parties who have their habitual residence in 
another Member State of the European Union choose a court of the State of which 
they are nationals to give a ruling in divorce proceedings, that court does not 
automatically also have jurisdiction to rule on matters regarding the exercise of 
parental authority, the child’s place of habitual residence, or the determination of 
parental contributions towards the costs of that child’s care and upbringing, which 
are included in the concept of ‘parental responsibility’ for the purposes of that 
regulation.