62023CJ0395_RES
Case C‑395/23 [Anikovi] (
i
)
E. M. A. and Others
(Request for a preliminary ruling from the Sofiyski rayonen sad)
Judgment of the Court (Fourth Chamber) of 6 March 2025
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) 2019/1111 – Scope – Article 1(1)(b) and (2)(e) – Measure relating to the disposal of the property of a child – Article 7 – Jurisdiction in matters of parental responsibility – Article 10 – Choice of court – Regulation (EU) No 1215/2012 – Scope – Article 1(2)(a) – Exclusion concerning the status or legal capacity of natural persons – Rules on jurisdiction laid down in a bilateral agreement between the Republic of Bulgaria and the Russian Federation concluded before the accession of the Republic of Bulgaria to the European Union – Difference between those rules and the rules laid down in Regulation 2019/1111 – Article 351 TFEU – Concept of ‘incompatibility’)
Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation 2019/1111 – Scope – Measure relating to the disposal of the property of a child – Judicial authorisation to sell immoveable property belonging to a minor and situated in a different Member State from the Member State of habitual residence of the minor – Included in the scope of the regulation
(Council Regulation 2019/1111, Art 1(1)(b) and (2)(e) and Art 7(1))
(see paragraphs 25, 26, 28, operative part 1)
International agreements – Agreements concluded by the Member States – Agreements concluded before the accession of a Member State to the European Union – Article 351 TFEU – Scope – Relations between Regulation 2019/1111 and such an agreement – No reference to the agreement in the regulation – Within the scope of Article 351 TFEU – Condition – Agreement conferring rights on a third State which must be respected by the Member State – Incompatibility of the agreement and the regulation concerned – Determination of that incompatibility – Application by the court of the Member State of the rules of the agreement to the detriment of those laid down by the regulation – Whether permissible – Limits
(Art. 351 TFEU)
(see paragraphs 45-49, 57-61, operative part 2)
Résumé
Hearing a reference for a preliminary ruling, the Court rules, inter alia, on the relations between Regulation 2019/1111 (
1
) and a bilateral agreement concluded between a Member State before its accession to the European Union and a third State.
In 2023, the Sofiyski Rayonen sad (Sofia District Court, Bulgaria), the referring court, was seised in non-contentious proceedings in order to decide whether, under Bulgarian law, the sale of immovable property belonging in part to two minors of Russian nationality habitually resident in Germany could be authorised in the interest of those minors.
The referring court is uncertain whether the Bulgarian courts have international jurisdiction in such a situation. To that end, it seeks to ascertain whether the judicial authorisation for the sale in question comes within the scope of Regulation No 1215/2012 (
2
) or that of the Brussels II ter Regulation. In the latter case, it wishes to know, in view of the existence of a bilateral treaty concluded between Bulgaria and the Soviet Union (of which the Russian Federation is the successor State) before the accession of that Member State to the European Union, (
3
) whether Article 351 TFEU governs the relations between that treaty and the Brussels II ter Regulation where that treaty is not mentioned in Chapter VIII of that regulation and, if so, in what circumstances the Treaty may derogate from the regulation.
Findings of the Court
In the first place, the Court holds that the judicial authorisation sought in the case in the main proceedings comes within the scope of the Brussels II ter Regulation, in so far as that authorisation constitutes a protective measure for the child relating to the administration, conservation or disposal of the child’s property in the exercise of parental responsibility within the meaning of that regulation. Consequently, it is the courts of the Member State in which the child is habitually resident at the time the court is seised (in this case, the German courts) which, in principle, have jurisdiction to grant that authorisation.
In the second place, the Court examines the issue of relations between the Brussels II ter Regulation and the Russo-Bulgarian Treaty, in view of the fact that that treaty appears to confer jurisdiction on the Bulgarian or Russian courts.
It states that, since a bilateral treaty such as the Russo-Bulgarian Treaty is not mentioned in the Brussels II ter Regulation, it is Article 351 TFEU (
4
) which is intended to govern relations between that treaty and that regulation.
The Court recalls that, under the first paragraph of Article 351 TFEU, the provisions of a treaty concluded between a Member State and a third State may derogate from any provision of EU law, whether primary or secondary law, provided, however, that that treaty was concluded before the accession of the Member State to the European Union and that the third State concerned derives from it rights which it can require that Member State to respect.
The Court states that it will be for the referring court in the present case to ascertain, in the first place, whether the Russo-Bulgarian Treaty contains rules which the Russian Federation may require Bulgaria to respect. If so, it will be for the referring court, in the second place, to determine whether that treaty is incompatible with the Brussels II ter Regulation in that those two legal instruments do not provide that the same court has jurisdiction in the circumstances of the dispute in the main proceedings. That check will have to take into account the EU legislature’s decision, reflected in that regulation, to make provision, in certain situations, for courts other than those of habitual residence of the child to have jurisdiction, but the referring court must, nevertheless, not have recourse to the possibility of recognising that it has jurisdiction under the rules of that regulation with the aim of finding that the Russo-Bulgarian Treaty is compatible with that regulation. If they are found to be incompatible, the referring court will, in the third place, have to examine whether that incompatibility can be avoided by adopting an interpretation of the Russo-Bulgarian Treaty that is consistent with the Brussels II ter Regulation. If that is not possible, the referring court will, in the fourth place, be able to apply the rules of that treaty while disregarding the rules of the Brussels II ter Regulation, with Bulgaria then being required to take the measures necessary to eliminate that incompatibility, as required by the second paragraph of Article 351 TFEU.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
1
)	Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ 2019 L 178, p. 1; ‘the Brussels II ter Regulation’).
(
2
)	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 (OJ 2012 L 351, p. 1; ‘the Brussels I bis Regulation’).
(
3
)	Treaty between the Union of Soviet Socialist Republics and the People’s Republic of Bulgaria concerning legal assistance in civil, family and criminal cases, signed at Moscow on 19 February 1975 (United Nations Treaty Series, Vol. 1015, No 14855, p. 41; ‘the Russo-Bulgarian Treaty’).
(
4
)	According to that provision, the rights and obligations arising from agreements concluded before the date of accession of a State to the European Union, between one or more Member States on the one hand, and one or more third countries on the other, are not to be affected by the provisions of the Treaties. In that regard, if it is not possible to interpret the agreement in such a way that it is consistent with EU law, the Member States must take all appropriate steps to eliminate the incompatibilities established between those agreements and the Treaties, where necessary by assisting each other to that end and, if necessary, adopting a common attitude.