Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 30 April 2026 (1)
Case C‑190/25 [Zelabrich] (i)
LS
v
GT
(Request for a preliminary ruling from the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany))
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters – Regulation (EC) No 2201/2003 – Article 19 – Lis pendens – Article 63 – Lateran Concordat concluded between Italy and the Holy See – Marriage contracted in accordance with canon law – Divorce proceedings before a civil court in a Member State first seised – Annulment of the marriage declared by an ecclesiastical tribunal in Italy – Proceedings for the recognition of the civil effect of the annulment decision before a court of the Italian State second seised )
I.      Introduction
1.        A court in a Member State was seised, in the first instance, of a divorce petition. A court in another Member state, Italy in this case, was seised, in the second instance, of an application to confer civil effect on a judgment annulling a marriage contracted in Italy in accordance with canon law, (2) that enforceable judgment having been delivered by an ecclesiastical tribunal whose jurisdiction is recognised in that Member State. Is such a situation one of lis pendens?
2.        In the case which has been referred to the Court, a German court seeks to establish whether an affirmative response to that question can be arrived at from the interpretation of Article 19(1) of Regulation (EC) No 2201/2003, (3) for the reason that Article 63(2) and (3)(a) of that regulation provides that any decision as to the invalidity of a marriage taken under the agreement concluded between Italy and the Holy See, namely the Lateran Concordat of 11 February 1929, modified by the agreement, with additional protocol, (4) is, by virtue of the reference to Chapter
III, Section
1 of that regulation, to be recognised by operation of law, like any other decision handed down in a matrimonial matter by a court of a Member State.
3.        The issue of the application of the rules of lis pendens laid down in Article 19 of the Brussels
IIa Regulation should be examined from a broader perspective than that offered by the main proceedings, which is confined to the Lateran Concordat. Indeed, Article 63 of the Brussels
IIa Regulation refers to the Concordats concluded between the Holy See and Portugal, Spain and Malta. The last two Concordats institute a similar procedure to the Italian procedure for the recognition of judgments handed down by ecclesiastical tribunals. Furthermore, for actions brought on or after 1 August 2022, Article 99 of Regulation (EU) 2019/1111, (5) which replaced Article 63, includes the latest Concordat concluded between the Holy See and Portugal, which provides for a similar procedure.
4.        In the present Opinion, which, in accordance with the Court’s request, shall be focused on the first question referred for a preliminary ruling, I shall set out the reasons why, in my view, such a procedure cannot be treated as proceedings for marriage annulment, within the meaning of Article 19(1) of the Brussels IIa Regulation, and cannot therefore give rise to a situation of lis pendens.
II.    Legal framework
A.      European Union law
5.        Article 1(1)(a) of the Brussels IIa Regulation provides:
‘This regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a)      divorce, legal separation or marriage annulment’.
6.        Article 19 of the regulation, entitled ‘Lis pendens and dependent actions’, reads:
‘1.      Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
…
3.      Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.’
7.        Article 63 of the regulation, entitled ‘Treaties with the Holy See’, is worded as follows:
‘1.      This regulation shall apply without prejudice to the International Treaty (Concordat) between the Holy See and Portugal, signed at the Vatican City on 7 May 1940.
2.      Any decision as to the invalidity of a marriage taken under the Treaty referred to in paragraph 1 shall be recognised in the Member States on the conditions laid down in Chapter III, Section 1. [(6)]
3.      The provisions laid down in paragraphs 1 and 2 shall also apply to the following international treaties (Concordats) with the Holy See:
(a)      [the Lateran Concordat];
(b)      Agreement between the Holy See and Spain on legal affairs of 3 January 1979;
(c)      Agreement between the Holy See and Malta on the recognition of civil effects to canonical marriages and to decisions of ecclesiastical authorities and tribunals on those marriages of 3 February 1993, including the Protocol of application of the same date, with the second Additional Protocol of 6 January 1995.
4.      Recognition of the decisions provided for in paragraph 2 may, in Spain, Italy or Malta, be subject to the same procedures and the same checks as are applicable to decisions of the ecclesiastical courts handed down in accordance with the international treaties concluded with the Holy See referred to in paragraph 3.’
…
B.      The Lateran Concordat
8.        Article 8(1) and (2) of the Lateran Concordat provides:
‘1.      The civil effects of marriages contracted in accordance with canon law shall be recognised, provided that the marriage deed is registered at the proper civil registry office, following publication at the town hall. Immediately after the ceremony, the priest or his delegate shall explain to the spouses the civil effects of marriage and shall read to them the relevant articles of the codice civile [(Civil Code)] concerning the rights and duties of the married couple. He shall thereupon draw up, in two original copies, the deed of marriage, which may bear the declarations of the spouses in accordance with civil law.
…
2.      A judgment annulling a marriage, delivered by an ecclesiastical tribunal and certified as enforceable by the senior supervisory ecclesiastical body, shall, upon the application of the parties or one of them, be declared effective in the Italian Republic by decision of the competent Corte d’appello [(Court of Appeal, Italy)], where it finds that:
(a)      the ecclesiastical tribunal had jurisdiction to hear the case, concerning a marriage celebrated in accordance with the conditions laid down in this article;
(b)      during the proceedings before the ecclesiastical tribunal, the parties were able to take legal steps and to respond to the same, in accordance with the fundamental principles of Italian law; and
(c)      the other conditions imposed by Italian law in order for effect to be given to a foreign judgment are met.
The Court of Appeal may, in its decision rendering a canonical judgment enforceable, draw up provisional financial measures in favour of one or other spouse whose marriage has been annulled and may refer the parties to the competent court or tribunal for a ruling on the matter.’
9.        Point 4 of the additional protocol, which relates to Article 8 of the Lateran Concordat, provides, in point (b):
‘With reference to paragraph (2), for the purposes of the application of Articles 796 and 797 of the codice italiano di procedura civile [(Italian Code of Civil Procedure) (7)], account shall be taken of the specific nature of canon law which governs the matrimonial bond and in which it has its origin. In particular:
1.      any references made by Italian law to the law of the place where the judgment was handed down shall be understood as references to canon law;
2.      a decision that has become enforceable under canon law shall have the force of res judicata;
3.      in no case shall there be any re-examination of the merits of the case.’
III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling
10.      GT, a dual German and Italian national, and LS, a Russian national, both habitually resident in Germany, entered into a concordat marriage at the Chiesa di Santa Maria Apparente in Naples (Italy) on 16 June 2017. The marriage was duly registered with the civil registry office in Naples on the same day.
11.      On 25 January 2022, GT applied to the Amtsgericht Stuttgart (Local Court, Stuttgart, Germany) for divorce. That court is also called upon to settle, of its own motion, the assignment of pension
rights and, on application by LS, post-marital maintenance.
12.      On 22 July 2022, GT applied to the Tribunale Ecclesiastico Interdiocesano Partenopeo (the Interdiocesan Ecclesiastical Tribunal Partenopeo, Naples, Italy) to have the concordat marriage annulled. The marriage was annulled by final decision of 28 February 2024, which was certified as enforceable on 27 May 2024 by the Supremo Tribunale della Segnatura Apostolica (Supreme Tribunal of the Apostolic Signatura, Italy).
13.      The Corte d’appello di Napoli (Court of Appeal, Naples, Italy), (8) before which an action was brought on 31 July 2024 for the recognition of the civil effect of the ecclesiastical judgment, has not yet given its ruling.
14.      By order of 20 November 2024, the Amtsgericht Stuttgart (Local Court, Stuttgart) stayed the divorce proceedings, together with its ruling on the financial consequences of the divorce, on the ground that, if the Italian court delivered a decision recognising the ecclesiastical judgment, the divorce proceedings would become devoid of purpose.
15.      LS lodged an appeal against that order before the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany), which is the referring court, arguing that, under the Brussels IIa Regulation, it is not the Amtsgericht Stuttgart (Local Court, Stuttgart), but the Italian court that has to stay its proceedings.
16.      The referring court states that, by its first question, it seeks confirmation of its own analysis that, having regard to the wording of Article 63(2) and (3)(a) of the Brussels IIa Regulation, the proceedings for the recognition of the effects of the ecclesiastical judgment, which are pending before the Italian court, ‘form part of the proceedings relating to marriage annulment’, within the meaning of Article 19(1) of that regulation.
17.      As for its second question, the referring court asks what consequences could ensue from a situation of lis pendens being established that would lead the Italian court, second seised, to stay its proceedings, in accordance with Article 19(1) of that regulation.
18.      Indeed, according to the referring court, annulment of the marriage, in the event that the ecclesiastical judgment is recognised by the Italian court, would not have the same effects as a decree of divorce, in so far as concerns the settlement of the consequences of that divorce by the German courts. It states that, according to German case-law, no financial consequences may ensue from a marriage that has been annulled. If the rules on lis pendens are not followed, there is therefore a risk of irreconcilable decisions, which could constitute a ground of non-recognition of the judgment annulling the marriage, in accordance with Article 22(c) of the Brussels IIa Regulation.
19.      The referring court also emphasises that, by virtue of the mechanism of lis pendens, it could also be called on to consider, as an ancillary matter, the recognition by the Italian State of the marriage annulment decreed by the Church, even though there is no Concordat between the Federal Republic of Germany and the Holy See.
20.      The referring court therefore wonders if there is any possibility for the German courts to stay proceedings, despite the existence of overriding international jurisdiction in favour of those courts.
21.      In those circumstances, the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do Italian proceedings concerning the recognition of the civil effects [of an ecclesiastical judgment before the Corte d’appello di Napoli (Court of Appeal, Naples), which is competent] under Article 8(2) of the
[Lateran Concordat], constitute proceedings relating to marriage annulment within the meaning of Article 19(1) of the Brussels IIa Regulation?
(2)      If the [first question
is answered in the affirmative,] is a court first seised in Germany [of a divorce petition] permitted, contrary to Article 19(1) of the Brussels IIa Regulation, to stay its proceedings under national rules in favour of the court second seised[, which is to rule on the proceedings concerning the recognition of the civil effect of an ecclesiastical judgment]?’
22.      GT, the Italian Government and the European Commission have lodged written observations. Along with the Spanish Government, those parties attended the hearing on 5 February 2026, at which they answered the questions put to them by the Court for oral reply.
IV.    Analysis
23.      By its questions, the referring court asks whether proceedings for the recognition, by a State court, of an enforceable decision delivered by an ecclesiastical tribunal concerning the invalidity (9) of a concordat marriage, which are pending in Italy, even though a German court was first seised of a petition for divorce involving the same parties are, or are not, marriage annulment proceedings within the meaning of Article 19(1) of the Brussels IIa Regulation. The Court is therefore asked to rule on the interpretation of that provision. (10)
24.      Since decisions taken by religious authorities do not fall within the scope of the Brussels IIa Regulation, (11) it is necessary to clarify the particular context in which the present request for interpretation has arisen, that context being the Lateran Concordat, one of the agreements concluded by certain Member States to which Article 63 of the Brussels IIa Regulation refers. (12)
A.      The particular context of the case in the main proceedings: the Lateran Concordat
25.      The Lateran Concordat of 11 February 1929, concluded between Italy and the Holy See, was amended by the agreement of 18 February 1984. (13) Article 1 of the Lateran Concordat reaffirms the guiding principle of the agreement, which is that the Catholic Church and the Italian Republic are fully independent and sovereign, each in their own sphere. In Article 2(1) (14) of the Concordat, the Italian Republic assures the Catholic Church of its freedom to exercise its jurisdiction independently in matters of canon law. The conditions for the effectiveness in the Italian legal order of judgments relating to the annulment of a marriage decreed by an ecclesiastical tribunal, laid down in Article 8(2) of the Lateran Concordat, constitute an application of the principle set out in Article 1. (15)
26.      Article 8(1) and (2) of the Lateran Concordat governs the civil effects of concordat marriages and of enforceable decisions relating to the annulment of such marriages delivered by the ecclesiastical tribunals.
27.      Under the first subparagraph of Article 8(1) of the Lateran Concordat, those marriages produce civil effects if they are registered at the civil registry office. However, such registration may be refused, under the second subparagraph of that provision, where rules of civil law are not observed (the ages of the spouses, the insurmountable impediments listed in point 4(a) of the additional protocol).
28.      In accordance with canon law, a concordat marriage may solely be annulled, on the application of at least one of the spouses, by an ecclesiastical tribunal on grounds of a religious nature that are more numerous (16) than the grounds laid down in civil law generally.
29.      Article 8(2) of the Lateran Concordat provides for two stages for the conferral of civil effect on the annulment of a concordat marriage. First, the judgment annulling such a marriage delivered by an ecclesiastical tribunal (17) must be certified as enforceable by the senior supervisory ecclesiastical body.
30.      Secondly, such a judgment, once declared enforceable by that body, must be examined by a court of the Italian State.
31.      In the case in the main proceedings, both that examination by the court of the Italian State seised upon the application of GT, and the divorce proceedings which GT had earlier brought before a German court, are pending. The decision of the German court to stay the proceedings before it pending the decision of the Italian court second seised is disputed before the referring court. The referring court wonders about the conditions of lis pendens laid down in Article 19 of the Brussels IIa Regulation (18) with regard to that particular procedural context.
B.      The scope of the rules on lis pendens
32.      Article 19 of the Brussels IIa Regulation is entitled ‘Lis pendens and dependent actions’. The expression ‘dependent actions’ covers cases of ‘false lis pendens’. (19) That distinction was addressed in Article 11(2) of the Brussels
II Regulation, (20) which took account of the differences between the legal systems of the Member States inasmuch as not all of them recognised legal separation, divorce and marriage annulment. (21)
33.      Interpreting Article 19(1) and (3) of the Brussels IIa Regulation, the Court has held that, in order for a situation of lis pendens to exist, it is necessary for the proceedings to involve the same parties. Whether they have the same or a different cause of action is irrelevant, provided that they concern legal separation, divorce or marriage annulment. Consequently, a situation of lis pendens, within the meaning of Article 19,  may exist where two courts of different Member States are seised of legal separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce. (22)
34.      It is therefore sufficient if two sets of proceedings having a cause of action relating to a matrimonial bond are pending. The EU legislature did not reserve any particular treatment to proceedings for marriage annulment, which rest upon the existence of a ground of invalidity at the time the marriage was entered into, although an invalid matrimonial bond cannot be dissolved by divorce. (23)
C.      Application to the case at hand
35.      The divorce proceedings of which the German court was seised, first, are in competition with proceedings pending before an Italian court seised, second, for the purposes of giving effect in Italy to an enforceable judgment relating to the annulment of a marriage, delivered by an ecclesiastical tribunal.
36.      Admittedly, the subject matter of both these sets of proceedings is the marriage at issue. However, the claims are not of the same nature. In one set of proceedings the objective is a decree dissolving the matrimonial bond, in the other the objective is the recognition in the Italian legal system of the civil effect of the annulment of the marriage, already decreed by an ecclesiastical tribunal, which is final and enforceable. Those three conditions are laid down by Article 8(2) of the Lateran Concordat.
37.      Thus, first of all, it is clear from the wording itself of Article 19(1) of the Brussels IIa Regulation that the conditions for lis pendens are not met. That provision addresses the situation in which ‘proceedings relating to divorce … or marriage annulment between the same parties are brought before courts of different Member States’. (24) Article 19 is clear in both its wording and its objective. It organises the handling of cases in which, as a result of the multiplicity of grounds of jurisdiction listed, without any hierarchical order, in Article 3 of the Brussels IIa Regulation, (25) two courts in different Member States are seised. (26) The objective is to prevent conflicting decisions relating to a divorce, annulment or separation and to ensure legal certainty within the AFSJ, (27) which is referred to in recital 1 of the Brussels
IIa Regulation.
38.      In the present case, the only proceedings parallel to the divorce proceedings in Germany that are pending before a court of a different Member State (Italy) are not proceedings for the ‘annulment’ of the concordat marriage, since that marriage has already been annulled. Indeed, proceedings relating to the annulment of that marriage were brought before an ecclesiastical tribunal, which granted the application by a final decision which became enforceable as a result of a second decision delivered by the senior supervisory ecclesiastical body. Furthermore, unless it is recognised by the competent court of the Italian State, that decision is not one that falls within the scope of the Brussels IIa Regulation. (28)
39.      Secondly, the proceedings pending before the court of the Italian State for the recognition in the Italian legal system of the annulment of the marriage already decreed by an ecclesiastical tribunal (29) have the characteristics of an exequatur procedure. (30) I note that various other terms or expressions are used to describe such a procedure, such as ‘homologation’, (31) ‘review of lawfulness’/‘declaration of civil validity’, (32) ‘réserve de délibération’ (33) and ‘confirmation’. (34) That, in my view, has no bearing on the substance.
40.      First of all, the Lateran Concordat, which is an international treaty, provides for such a procedure so that judgments, given by ecclesiastical tribunals having jurisdiction within their own legal order, (35) annulling marriages on grounds proper to that legal order (36) take civil effect in Italy or, in other words, enter into the legal order of that Member State. (37)
41.      Analogous civil procedures exist in Spain, as they do in Malta and, since the Concordat of 18 May 2004, in Portugal also. (38)
42.      Next, Article 8(2) of the Lateran Concordat lists the criteria for the review of ecclesiastical judgments by the competent court of the Italian State. These are customary in matters of exequatur, (39) inasmuch as they relate to the jurisdiction of the ecclesiastical tribunal seised and compliance with Italian public policy in connection with procedural law, and it is not necessary to identify any precise correspondence with the grounds of invalidity laid down in Italian civil law. (40) I should also emphasise that the competent court of the Italian State must find that ‘the other conditions imposed by Italian law in order for effect to be given to a foreign judgment are met’. (41)
43.      Lastly, as is the case with other bilateral agreements concluded between Member States and third States which provide for a review procedure for the purposes of the recognition and, above all, the enforcement of judgments given in each of those States, a judgment given in one State will take effect, whereas, in the other State, it will have equivalent effect only after such a procedure has been completed.
44.      Thus, in the relationship between the Holy See and Italy, the annulment of a marriage by an ecclesiastical tribunal permits the celebration of another religious marriage, but no new civil marriage can be contracted in Italy until the proceedings before the competent court of the Italian State have been completed. The situation is therefore in every respect comparable to the situation, outside the AFSJ, in which a divorce is granted in State
A but no new marriage is possible in State
B without its prior review of the judgment given in State A. The fact of the judgment at issue being given by an ecclesiastical tribunal does not alter that logic.
45.      Consequently, I share the Commission’s view that the rules on lis pendens laid down in Article 19 of the Brussels IIa Regulation do not apply where proceedings are brought before a court of a Member State for the conferral of civil effect on a judgment given by a religious court, just as they do not apply where proceedings are brought before a court of a Member State for the conferral of civil effect on a judgment delivered in a third State.
46.      However, espousing the view of the referring court, the Commission considers that Article 63(3)(a) of the Brussels IIa Regulation could be interpreted as creating an exceptional situation of lis pendens, given that this provision requires the other Member States to recognise decisions as to the invalidity of a marriage taken on the basis of the treaties concluded with the Holy See, and that the decision of a competent court of the Italian State conferring civil effect on a judgment given by an ecclesiastical tribunal annulling a marriage produces the same legal effects as would a judgment given by an Italian civil court itself annulling the marriage.
47.      I am of the view that that proposed interpretation, which combines Articles 19 and 63 of the Brussels IIa Regulation, should be rejected for the reason that it conflicts with the scope of application of Article 63 and is contrary to the guiding principles of the treaties that are referred to in that article. The consequences of applying Article 19 of the regulation, if it were interpreted in conjunction with Article 63 of the regulation, also support this view.
D.      The proposed interpretation which combines Articles 19 and 63 of the Brussels IIa Regulation
1.      Article 63 of the Brussels IIa Regulation
48.      Article 63 of the Brussels IIa Regulation appears in Chapter
V, entitled ‘Relations with other instruments’. The EU legislature stated the principle of the primacy of EU law in Article 59(1) of the regulation, which provides that the regulation supersedes conventions existing at the time of its entry into force which have been concluded between two or more Member States and relate to matters governed by the regulation, ‘subject’, however, ‘to the provisions of’, inter alia, Article 63 of the regulation.
49.      Article 63 of the Brussels IIa Regulation preserves, in relations between Member States, the effects of the bilateral agreements concluded between Portugal, Italy, Spain and Malta, on the one hand, and the Holy See, on the other, which are mentioned with a reference to Chapter III of the regulation, which concerns the recognition and enforcement of judgments given in a Member State, as defined in Article 2(4) of the regulation. Article 21(1) of the Brussels IIa Regulation, which states the principle of recognition by operation of law, and Article 22 of the regulation, which exhaustively lists the grounds for non-recognition of judgments given in a Member State, are therefore applicable.
50.      Thus, Article 63 of the Brussels IIa Regulation creates, by virtue of the inclusion of the Concordats to which it refers, a new case of simplified recognition of judgments given within the AFSJ. The scope of the rules on the recognition by operation of law of judgments relating to marriage annulment given in the Member States is extended so as to give full effect to the Concordats concluded between certain Member States and the Holy See. (42)
51.      Consequently, Article 63 is meant to apply only in the case of decisions concerning the invalidity of a marriage given in the Member States (Portugal, Italy, Spain and Malta) in accordance with the Concordats which those States have concluded with the Holy See. I must emphasise that it is solely concerned with decisions of State courts recognising the civil effect of judgments annulling marriages handed down by ecclesiastical tribunals. (43)
52.      It must be noted that no link has been established between Article 63 of the Brussels IIa Regulation and Chapter
II thereof, which deals with rules of jurisdiction (44) and, in particular, lis pendens. That is corroborated by the fact that it is clear from the provisions of successive regulations equivalent to Article 63 of the Brussels
IIa Regulation (45) that the concurrent jurisdiction (46) of the ecclesiastical tribunals was taken into consideration by the EU legislature as an exception (47) and strictly within the framework of the Concordats concluded between the Holy See and the Member States concerned, which must recognise the civil effect of ecclesiastical judgments, as of any other civil judgment.
53.      The aim is to facilitate the circulation of decisions within the AFSJ, not to resolve conflicts of jurisdiction, all the more so since, under these Concordats, in matters of marriage annulment, the rules of jurisdiction of the religious authorities in a secular State do not fall within the scope of the Brussels IIa Regulation. (48) The same is true of the procedure for the recognition of the civil effect of an ecclesiastical judgment annulling a marriage. In Italy, for example, the State court having jurisdiction is designated by the Lateran Concordat. If that procedure were to be treated as proceedings for marriage annulment, it would have to be subject to the rules of jurisdiction defined in the Brussels
II Regulation.
54.      In view of the foregoing, I take the view that, if Article 19 of the Brussels IIa Regulation had to be interpreted in conjunction with Article 63 thereof, the subject matter and purpose of the Concordats concluded with the Holy See would be disregarded. In accordance with Article 31(1) of the Vienna Convention on the Law of Treaties, (49) however, ‘a treaty [is to be] be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.
55.      Other limitations arising from the Vienna Convention must also be noted when considering the consequences of such a likening to marriage annulment procedures within the framework of the lis pendens mechanism.
2.      Application of the rules on lis pendens laid down in Article 19 of the Brussels IIa Regulation
56.      Following on from its opinion regarding the treatment of recognition proceedings before the competent court of the Italian State in the same way as proceedings for marriage annulment, the Commission maintains that that court should stay its proceedings.
57.      Indeed, as the first sentence of Article 19(3) of the Brussels IIa Regulation provides, ‘where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.’ There is no derogation from that rule.
58.      However, the second subparagraph of Article 19(3) of the Brussels IIa Regulation states that ‘the party who brought the relevant action before the court second seised may bring that action before the court first seised’. (50)
59.      In the case in the main proceedings, if GT were to exercise that option, he would have to bring before the German court seised of his divorce petition the action he initiated before the court of the Italian State, seised second, for the recognition of the ecclesiastical judgment.
60.      However, the purpose of those recognition proceedings, which are based on Article 8(2) of the Lateran Concordat, which is binding only upon Italy and the Holy See, is to bring within the Italian legal order decisions taken in another legal order in a particular context. (51)
61.      It is therefore necessary, first of all, to weigh the principle of the relative effect of treaties – to which the Commission has referred, moreover – against the theory of the applicability of Article 19 of the Brussels IIa Regulation interpreted in conjunction with Article 63 of that regulation.
62.      This principle of general international law, according to which treaties must neither harm nor benefit third parties (pacta tertiis nec nocent nec prosunt), which must be taken into account in the interpretation of treaties, (52) finds specific expression in Article 34 of the Vienna Convention, in accordance with which a treaty creates neither obligations nor rights for a third State without its consent. (53)
63.      This principle therefore requires that provisions of secondary law not be interpreted in the light of an obligation imposed by an international agreement which does not bind all the Member States. Any such interpretation would amount to extending the scope of that obligation to those Member States, which must be regarded as ‘third countries’ if they are not contracting parties to such an agreement. (54)
64.      It is clear from its case-law that the Court is required to observe this principle of the relative effect of treaties, since it constitutes a customary rule of international law which, as such, is binding upon the EU institutions and forms part of the EU legal order. (55)
65.      Secondly, the question could arise of the effect of an interpretation that combined Articles 19 and 63 of the Brussels IIa Regulation, given that the international instruments referred to in Article 63 are not the only ones capable of producing effects in the AFSJ. There is also the convention referred to in Article 59(2)(a) and (d) of the regulation, as well as any agreements with one or more third States concluded by a Member State and one or more third States before the date of its accession to the European Union, to which Article 351 TFEU applies, but which, by contrast with the Concordats, are not expressly referred to in the Brussels
IIa Regulation. (56) The consequences are, from my viewpoint, difficult to anticipate, which creates obstacles that are out of proportion to those relied on to justify the applicability of Article 19 of the regulation.
E.      The consequences of the inapplicability of Article 19 of the Brussels IIa Regulation
66.      At the hearing, following on from its written observations regarding the mutual exclusion of the legal effects of divorce judgments and judgments annulling a marriage, the Commission stated that the aim of its proposed interpretation was to address two major disadvantages of actions for the annulment of a marriage, namely their ‘torpedo effect’ and their financial consequences, which are different from those of a divorce. The latter are also raised by the referring court, should it be found that a divorce decree is irreconcilable with a judgment annulling a marriage.
67.      I take the view that the first disadvantage is inherent in the nature of an action for the annulment of a marriage and cannot be remedied, since there is no hierarchy among the types of proceedings referred to in Article 19 of the Brussels IIa Regulation. (57) As regards the second disadvantage, on the other hand, in light of the explanations provided both by the Italian and Spanish Governments and by legal scholars regarding the development of national case-law in those Member States, it seems to me appropriate to bear in mind the EU legislation governing the financial consequences of divorce, annulment and separation as well as the solutions adopted in Spain and Italy in cases of concurrent proceedings for divorce and for the recognition of the civil effect of a judgment annulling a marriage delivered by an ecclesiastical tribunal.
1.      EU regulations applicable to the financial consequences of divorce, annulment and separation
68.      First, Article 1(3)(e) of the Brussels IIa Regulation expressly provides that that regulation does not apply to maintenance obligations. Secondly, it may be inferred from the way in which ‘matrimonial matters’ are defined in Article 1(1)(a) that the regulation does not apply to the consequences which ensue from decisions relating to the marital bond. (58) Those two areas are dealt with, respectively, by Regulation (EC) No 4/2009 (59) and Regulation (EU) 2016/1103. (60) Those regulations apply in cases of marriage annulment, in particular, to designate the court having jurisdiction. (61) On account of the scope of the Rome III Regulation, which is confined to conflicts of laws in the area of divorce and legal separation, recognition of the effects that may result from the annulment of a marriage depends on the applicable law as determined by the international law of each Member State. (62)
69.      In that regard, it should be remembered that the last subparagraph of Article 8(2) of the Lateran Concordat provides that the competent Italian court ‘may, in its decision rendering a canonical judgment enforceable, draw up provisional financial measures in favour of one or other spouse whose marriage has been annulled and may refer the parties to the competent court or tribunal for a ruling on the matter’.
2.      Italian and Spanish case-law
70.      In its written observations, the Italian Government pointed out that the Corte suprema di cassazione (Supreme Court of Cassation) has ruled on the relationship between the validation of an ecclesiastical judgment annulling a religious marriage and the continuance of divorce proceedings for the purpose of determining maintenance obligations. (63) It held that:
–        the recognition of the effects of an ecclesiastical judgment annulling a religious marriage, delivered after a judgment terminating the civil effect of the marriage has become final but before the decision on the financial consequences thereof has become final, does not cause the subject matter of the civil proceedings relating to the dissolution of the marital bond to disappear. Those proceedings can, therefore, proceed for the purposes of determining maintenance obligations and the payment of maintenance, (64) and
–        the permanence of the financial measures ancillary to the divorce is established, even where the annulment of the marriage is recognised. (65)
71.      At the hearing, the Spanish Government stated that the Tribunal Supremo (Supreme Court) had also decided that a divorce decree is not incompatible with the subsequent recognition of the civil effect of an ecclesiastical judgment annulling a marriage, because such a judgment, once recognised, does not alter the civil effect of the divorce. (66)
72.      In the main proceedings, the referring court mentioned, in connection with the financial consequences of the marriage, that it was aware of judgment No 9004 of the Corte suprema di cassazione (Supreme Court of Cassation) of 31 March 2021 and of the possibility of having recourse to the legal mechanism of adjustment. (67)
73.      Finally, as regards the incompatibility of a divorce decree with a judgment recognising the civil effect of the annulment of the marriage, to which the national court has referred, (68) I would point out that it has raised this hypothetically, with the result that it cannot be the subject of a question for a preliminary ruling. In any event, I would repeat that it is inconceivable, for the reasons set out in points 57 and 61 of this Opinion, to interpret Article 19 of the Brussels IIa Regulation in conjunction with Article 63(3)(a) of that regulation and to amend the order staying proceedings and declining jurisdiction provided for in Article 19 so as to mitigate the risk of non-recognition (69) of a judgment recognising the civil effect of an ecclesiastical judgment annulling a concordat marriage delivered by a court of the Italian State pursuant to the Lateran Concordat.
74.      On concluding my analysis, I propose that the Court hold, in response to the first question referred for a preliminary ruling, that the conditions of lis pendens provided for in Article 19 of the Brussels IIa Regulation are not met and, consequently, there would be no need to answer the second question, which is raised in the event that the first question is answered in the affirmative.
V.      Conclusion
75.      Having regard to all of the foregoing considerations, I propose that the Court of Justice answer the questions referred by the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany) for a preliminary ruling as follows:
Article 19(1) 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, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004,
must be interpreted as meaning that
proceedings in Italy for the recognition of a judgment relating to marriage annulment delivered by an ecclesiastical court before a corte d’appello (Court of Appeal, Italy) which has jurisdiction under Article 8(2) of the Lateran Concordat of 11 February 1929, concluded between Italy and the Holy See, modified by the agreement, with additional protocol, signed in Rome on 18 February 1984, are not proceedings relating to marriage annulment within the meaning of Article 19(1) of Regulation No 2201/2003, as amended.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      ‘The concordat marriage.’
3      Council Regulation 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), as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004 (OJ 2004 L 367, p. 1), ‘the Brussels IIa Regulation’.
4      Signed in Rome on 18 February 1984, ‘the Lateran Concordat’. This agreement was ratified by legge n. 121 – Ratifica ed esecuzione dell’accordo, con protocollo addizionale, che apporta modificazioni al Concordato lateranense dell’11 febbraio 1929, tra la Repubblica italiana e la Santa Sede (Law No 121 implementing the agreement, and additional Protocol, amending the Lateran Pact of 11 February 1929 between Italy and the Holy See), of 25 March 1985 (GURI No 85 of 10 April 1985, p. 3 – Ordinary Supplement to GURI No 28).
5      Council Regulation 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 IIb Regulation’). On transitional provisions, see Article 100 of that regulation.
6      Within Chapter III of the Brussels IIa Regulation, entitled ‘Recognition and enforcement’, Section
1, concerning ‘recognition’, contains, inter alia, Articles 21 and 22. See point 49 of and footnote 69 to this Opinion.
7      In its written observations, the Italian Government stated that, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), Articles 796 and 797 of the Code of Civil Procedure, which appeared in Title VII of Book IV of the code, which deals in particular with the effect of foreign judgments, although repealed by Article 73 of legge n. 218 – Riforma del sistema italiano di diritto internazionale privato (Law reforming the system of private international law in Italy) of 31 May 1995 (Ordinary Supplement to GURI No 128, of 3 June 1995), continue in force as regards the recognition of ecclesiastical judgments annulling a marriage, by virtue of the principles of independence and sovereignty enshrined in Article 7 of the Costituzione (Constitution) (see the judgments of the Corte suprema di cassazione (Supreme Court of Cassation) No 11020
of 25 May 2005 and No 24990 of 14 October 2010).
8      ‘The Italian court.’
9      See Article 63(2) of the Brussels IIa Regulation.
10      The divorce proceedings were commenced on 25 January 2022. They are therefore governed by the Brussels IIa Regulation. See footnote 5 to this Opinion and the judgment of 16 February 2023, Rzecznik Praw Dziecka and Others (Suspension of a return decision) (C‑638/22 PPU, EU:C:2023:103, paragraph 55).
11      See the definition at Article 2(4) of the Brussels IIa Regulation, the term ‘judgment’ encompassing any divorce or marriage annulment pronounced by an authority exercising judicial functions in a Member State, as defined by the Court. Indeed, with reference to scope of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10), the ‘Rome III Regulation’, the Court held that the EU legislature had had in mind only situations in which divorce is pronounced by a national court or by, or under the supervision of, another public authority, and that, accordingly, a divorce based on a ‘private unilateral declaration of intent’ pronounced before a religious court does not fall within its scope. See the judgment of 20 December 2017, Sahyouni (C‑372/16, EU:C:2017:988, paragraph 45).
12      See Article 1(20)(B) of the Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (OJ 1998 C 221, p. 27; ‘the Borrás report’). It was approved by the Council of the European Union on 28 May 1998. It should be borne in mind that the Council had established this convention by act of 28 May 1998 (OJ 1998 C 221, p. 1; ‘the Brussels II Convention’). It did not enter into force. Its content was largely taken over into Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160, p. 19; ‘the Brussels II Regulation’). That regulation was repealed by the Brussels IIa Regulation, applicable to legal proceedings brought on or after 1 March 2001. Since the Bruxelles II Convention inspired the content of the regulations which succeeded it, the Borrás report continues to provide interpretative guidance on the equivalent provisions of the Brussels IIa Regulation.
13      See point 2 of this Opinion.
14      See Gaudemet, J., ‘L’Accord du 18 février 1984 entre l’Italie et le Saint Siège’, in Annuaire français de droit international, CNRS, Paris, 1984, pp. 209 to 220, in particular pp. 211, 212 and 216.
15      See, in this regard, with respect to Article 8 of the Lateran Concordat, point 4(b) of the additional protocol. The public policy nature of the principle of the separation of the two legal orders, secular and religious, is also apparent from Article 63(4) of the Brussels IIa Regulation, inasmuch as it provides that the checking of Portuguese decisions as to the invalidity of a marriage by the civil courts of Spain, Italy and Malta is extended throughout the Area of Freedom, Security and Justice (‘the AFSJ’), beyond the Concordats concluded between those Member States and the Holy See (see footnote 53 to this Opinion).
16      In its written observations, the Italian Government points out that the principles of canon law regarding marriage annulment are different from those of Italian civil law, inasmuch as they recognise mental reservations, relating, for example, to the bonum sacramenti (the indissoluble nature of the marriage bond), the bonum prolis (openness to procreating) and the timor revenrentialis (reverential fear).
17      The expression ‘sentenza canonica’ (canonical judgment) is used in the last subparagraph of Article 8(2) of the Lateran Concordat.
18      Since Article 20(1) and (3) of the Brussels IIb Regulation is drafted in substantially the same terms as Article 19(1) and (3) of the Brussels IIa Regulation, the interpretation that will be given of the latter provisions will also apply to the former.
19      This expression is used in the Borrás report (paragraph 54).
20      The case of ‘false lis pendens’ does not appear in Article 19(1) of the Brussels IIa Regulation, which covers ‘proceedings relating to divorce, legal separation or marriage annulment’. Article 19(2) of the Brussels IIa Regulation was maintained specifically to address ‘proceedings relating to parental responsibility relating to the same child and involving the same cause of action’, which had been included in the proceedings referred to in Article 11(1) of the Brussels II Regulation. See the Borrás report (point 54).
21      See the Borrás report (paragraph 52).
22      See the judgments of 6 October 2015, A (C‑489/14, EU:C:2015:654, paragraph 33), and of 16 January 2019, Liberato (C‑386/17, EU:C:2019:24, paragraph 35).
23      See, on this point, the Borrás report (paragraph 54), which explains that it was decided not to adopt the solution which would have involved ‘retaining the force of attraction of the jurisdiction producing the greatest effects in order to provide certainty and prevent problems for those States which do not have legal separation or annulment’.
24      My italics. I would observe that, in Article 20(1) of the Brussels IIb Regulation, the term corresponding to ‘proceedings’ was changed in some language versions, although that alters nothing. See, on this point, the judgment of 9 November 2010, Purrucker (C‑296/10, EU:C:2010:665, paragraph 64).
25      See the judgment of 16 July 2009, Hadadi (C‑168/08, EU:C:2009:474, paragraphs 48 and 49).
26      See the judgment of 25 November 2021, IB (Habitual residence of a spouse – Divorce) (C‑289/20, EU:C:2021:955, paragraph 45).
27      See the judgment of 13 October 2016, Mikołajczyk (C‑294/15, EU:C:2016:772, paragraph 33 and the case-law cited). The Borrás report (at paragraph 5(c)) even describes the decision to establish rules on lis pendens in an EU convention as an ‘important innovation that on its own would be justification for the [Brussels II] Convention and would contribute to the prevention of contradictory rulings’. Nevertheless, neither the convention nor the regulations which followed it contain a provision equivalent to that inserted, for civil and commercial matters, in Article 29(2) of Regulation (EU) No 1215/2012 of the European Council and of the Parliament of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), commonly referred to as ‘the Brussels Ia Regulation’. That provision provides that, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32 of that regulation.
28      See point 24 of this Opinion. See also Leborgne, F., ‘Article 63. Traités conclus avec le Saint-Siège’, in Corneloup, S., Droit européen du divorce, Lexis Nexis, Paris, 2013, pp. 471 to 476, in particular point 2 (p. 474).
29      The term in Italian is ‘delibazione’. It signifies the special judicial proceedings whereby, in a given State, on the application of a party, the legal force of a decision delivered by a judicial authority in another State is recognised. See De Gregorio, T., ‘La delibazione delle sentenze di nullità matrimoniale: orientamenti giurisprudenziali e nuove questioni’, in Ius in Itinere, Rivista Giuridica (online), 2025.
30      The European Court of Human Rights refers to that procedure in its judgment of 20 July 2001, Pellegrini v. Italy (CE:ECHR:2001:0720JUD003088296), in particular at § 31, which includes the quotation of Article 8(2) of the Latran Concordat. See also Cesarini, A., ‘Libertà e responsabilità nella convivenza coniugale: la stabilità dell’assegno divorzile a seguito di “delibazione” della nullità canonica’, in Stato, Chiese e Pluralismo Confessionale (online), No 11, 7 June 2021. At the hearing, the Spanish Government explained that the Tribunal Supremo (Supreme Court, Spain) has stated that ecclesiastical judgments are treated, for the purposes of recognition, like foreign judgments, so that the court dealing with recognition is required to act in accordance with the principles of the full jurisdiction of Spanish courts to rule on the civil effect of such judgments. See, to the same effect, Ramos, R.M.M., Estudos de Direito Internacional Privado e de Direito Processual Civil Internacional, II, Coimbra Editora, Coimbra, 2007, in particular the section entitled ‘A Concordata de 2004 e o direito internacional privado português’, pp. 335 to 388, in particular p. 361. It should be borne in mind that the purpose of an exequatur procedure is to render enforceable, in the Member State in which recognition is sought, an enforceable judgment delivered in another Member State. Such procedures have been progressively simplified or abolished within the AFSJ, the principle being that a judgment given in one Member State should be treated as if it has been given in the requested Member State. See, inter alia, the judgment of 26 April 2012, Health Service Executive (C‑92/12 PPU, EU:C:2012:255, paragraphs 100 to 103 and paragraphs 116 and 118).
31      See Joubert, N., ‘Article 1er – Champ d’application’, in Corneloup, S., Gallant, E., Égéa, V., and Jault-Seseke, F., Divorce, responsabilité parentale, enlèvement international: commentaire du règlement 2019/1111 du 25 juin 2019 (Bruxelles II ter), Bruylant, Brussels, 2023, pp. 37 to 56, in particular p. 43, and, in the same work, ‘Article 30 – Reconnaissance d’une décision’, pp. 399 to 413, in particular p. 404. The Spanish Government also used this term at the hearing, with reference to the procedure instituted by the Concordat concluded by Spain, which is similar to that under the Lateran Concordat (see Article 63(3)(b) of the Brussels IIa Regulation). See also Guzmán Altuna, M., ‘La homologación civil de resoluciones matrimoniales canónicas. Efectos derivados de su reconocimiento’, Diario de Jurisprudencia, El Derecho Editores, 7 May 2001, No 1382, p. 1, and the article by the same author entitled ‘Reconocimiento de eficacia civil de resoluciones matrimoniales canónicas’, in Diario de Jurisprudencia, El Derecho Editores, 5 October 2005, No 2181, p. 5.
32      See the first article by Guzmán Altuna, M., op. cit. (p. 1), and her second article, op. cit. (p. 5), cited in footnote 31 to this Opinion.
33      Regarding Article 63(4) of the Brussels IIa Regulation, see Rauscher, T., ‘Artikel 63: Verträge mit dem Heiligen Stuhl’, in Europäisches Zivilprozess- und Kollisionsrecht, Kommentar Brüssel IIa-VO, EG-UntVO, HUntVerfÜbk 2007, EU-EheGüterVO-E, EU-LP-GüterVO-E, EU-SchutzMVO, Otto Schmidt, Cologne, 2015, pp. 390 to 393, in particular paragraph 8 (p. 392).
34      See Spellenberg, U., ‘Art. 63’, in von Staudingers, J., Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen. Einführungsgesetz zum Bürgerlichen Gesetzbuche/IPR- Internationales Verfahrensrecht in Ehesachen 1 (Europäisches Recht, Brüssel IIa-VO), Sellier, Berlin, 2015, pp. 345 to 348, in particular pp. 346 and 347.
35      The Italian Government has stated in its written observations that the ecclesiastical tribunals are part of a foreign legal system.
36      See point 28 of this Opinion.
37      See points 9 and 25 of this Opinion. See also Gaudemet, J., op. cit., p. 216. This author emphasises that, as is the case for the application in one State of judgments delivered by courts in another State, the Italian Republic, while it recognises ecclesiastical jurisdiction within its own legal order, confers effect on its judgments only if they satisfy the requirements of the Italian legal system.
38      See point 3 of this Opinion. On the new regime which resulted from the Concordat concluded between the Holy See and Portugal on 18 May 2004, referred to in Article 99(1) of the Brussels IIb Regulation, under which the former procedure for the grant of exequatur to ecclesiastical judgments automatically and without review was replaced by a review procedure similar to that in the other Member States (Spain and Italy), and on the realisation that that change had become necessary in light of the judgment of the European Court of Human Rights (‘the ECtHR’) of 20 July 2001, Pellegrini v. Italy (CE:ECHR:2001:0720JUD003088296), see Ramos, R.M.M., op. cit., in particular p. 365. See also, on this new procedure, Leborgne, F., op. cit., paragraph 2 (p. 473) and, on this ECtHR judgment, paragraph 3 (p. 476).
39      See Gaudemet-Tallon, H., ‘La désunion du couple en droit international privé’, in Recueil des cours de l’Académie de droit international de La Haye, Nijhoff, Dordrecht, 1991, Vol. 226, pp. 185 to 198, in particular paragraphs 26 and 27 (p. 196).
40      See, on the application of similar criteria by Spanish courts, Guzmán Altuna, M., ‘La homologación civil de resoluciones matrimoniales canónicas. Efectos derivados de su reconocimiento’,  op. cit., p. 1, and ‘Reconocimiento de eficacia civil de resoluciones matrimoniales canónicas’,  op. cit., p. 1.
41      See Article 8(2)(c) of the Lateran Concordat. My italics. See, in this connection, point 9 of this Opinion. On the history of these provisions, which result from the agreement of 18 February 1984 modifying the Lateran Concordat of 11 February 1929 and postdate the judgment of the Corte costituzionale (Constitutional Court, Italy) No 18 of 2 February 1982, see Gaudemet-Tallon, H., op. cit., paragraph 20 (p. 192), and De Gregorio, T., op. cit. See also Leborgne, F., op. cit., paragraph 3 (pp. 475 and 476). On the question of observance of the rights of the defence in Spain, Italy and Malta, see Garcia Ruiz, Y., ‘Articulo 99. Tratados con la Santa Sede’, in Palao Moreno, G., El nuevo marco europeo en materia matrimonial, responsabilidad parental y sustracción de menores: comentarios al Reglamento (UE) n
o 2019/1111, Tirant lo Blanch, Valencia, 2022, pp. 777 to 782, in particular pp. 781 and 782.
42      See the Borrás report, paragraphs 120 to 123, and in particular paragraph 120, concerning the fact that Portugal would have breached its international obligations had it agreed to ratify a text recognising the jurisdiction of the civil courts.
43      See the Borrás report (paragraph 120, fifth subparagraph) and Leborgne, F., op. cit., paragraph 2 (p. 474). Since the conclusion of the Concordat between the Holy See and Portugal on 18 May 2004, referred to in Article 99 of the Brussels IIb Regulation, the procedures are similar. See footnote 38 to this Opinion.
44      On the reference to other provisions expressly laid down in Article 63, see point 49 of this Opinion. See, for comparison purposes, Article 59(2)(d) of the Brussels IIa Regulation, which relates to the convention between Denmark, Finland, Iceland, Norway and Sweden containing international private law provisions on marriage, adoption and guardianship, signed in Stockholm on 6 February 1931 (League of Nations Treaty Series, Vol. 126 p. 141, No 2877 (1931-1932)) cited in Article 59(2)(a) of the regulation.
45      See Article 40 of the Bruxelles II Regulation and Article 99 of the Brussels IIb Regulation.
46      In Portugal, since the conclusion of the Concordat between that State and the Holy See on 18 May 2004. Prior to this, the ecclesiastical jurisdiction was exclusive. See the Borrás report (paragraphs 120 and 121) and Gaudemet-Tallon, H., ‘Le Règlement no 1347/2000 du Conseil du 29 mai 2000: “Compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs”’, in Journal du droit international (Clunet), LexisNexis, Paris, 2001, No 2, pp. 381 to 445, in particular paragraph 111 (p. 425).
47      See point 24 of this Opinion.
48      See point 24 of this Opinion.
49      Signed on 23 May 1969 (League of Nations Treaty Series, Vol. 1155 p. 331, No 18232 (1980) and entering into force on 27 January 1980; ‘the Vienna Convention’. The international law of treaties was consolidated, essentially, in the Vienna Convention. Under Article 1 thereof, the Vienna Convention applies to treaties between States. See the judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraph 40).
50      My italics.
51      See point 25 of this Opinion.
52      See, to that effect, Article 31(3)(c) of the Vienna Convention.
53      See the judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraphs 43 and 44). Article 63(4) of the Brussels IIa Regulation is an interesting illustration of the principle of the relative effect of treaties. Indeed, the Concordat concluded between Portugal and the Holy See does not take direct effect in Spain, Italy or Malta. On this point, see Gaudemet-Tallon, H., ‘Le Règlement no 1347/2000 du Conseil du 29 mai 2000: “Compétence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs”’, op. cit., in particular paragraph 112 (p. 426). This author noted that the Brussels II Regulation, which contained, in Article 40(4), the same rule as that set out in Article 63(4) of the Brussels IIa Regulation, carefully complied with the requirements that were of both a public international law nature and a religious nature by preserving the mechanisms put in place by the Concordat as well as the provisions of domestic law adopted for the implementation of those mechanisms. This principle was even maintained in Article 99(4) of the Brussels IIb Regulation, even though Article 16 of the Concordat concluded between Portugal and the Holy See on 18 May 2004 provides for the same procedure for the recognition of the civil effect of ecclesiastical judgments as in Spain, Italy and Malta.
54      See the judgment of 23 January 2014, Manzi and Compagnia Naviera Orchestra (C‑537/11, EU:C:2014:19, paragraph 47).
55      See the judgment of 23 January 2014, Manzi and Compagnia Naviera Orchestra (C‑537/11, EU:C:2014:19, paragraph 48 and the case-law cited).
56      See the judgment of 6 March 2025, Anikovi (C‑395/23, EU:C:2025:142, paragraphs 42, 44 to 47 and 49).
57      See point 34 of this Opinion.
58      See also recital 8 of the Brussels IIa Regulation, which states that the regulation should not deal with the property consequences of the marriage.
59      Council Regulation of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1), applicable, in accordance with the third paragraph of Article 76 thereof, from 18 June 2011 onwards.
60      Council Regulation 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 (OJ 2016 L 183, p. 1), applicable, in accordance with Article 69 thereof, to legal proceedings instituted on or after 29 January 2019.
61      See Borrás, A, ‘Introduction générale’, in Corneloup, S., Droit européen du divorce, op. cit., pp. 1 to 25, in particular paragraph 9 (pp. 11 and 12). See Bonomi, A., ‘Remarques liminaires et détermination du champ d’application des règles et compétence en matière matrimoniale’, in Corneloup, S., Gallant, E., Égéa, V. and Jault-Seseke, F., Divorce, responsabilité parentale, enlèvement international: commentaire du règlement 2019/1111 du 25 juin 2019 (Bruxelles II ter), op. cit., pp. 82 to 106, in particular p. 92. This commentary on the Brussels IIb regulation applies equally to the scope of the Brussels IIa Regulation which it repealed.
62      See Gaudemet-Tallon, H., ‘La désunion du couple en droit international privé’, op. cit., p. 121, paragraph 96 et seq. According to this author, there is a tendency in private international law to favour the application of a legal system which recognises the putative nature of marriage, which in a sense allows the marriage to be ‘saved’ as regards the past. The author sets out, on the basis of French case-law, the various options for choosing an objective connecting factor, tending to favour the putative effects of the annulled marriage where at least one of the spouses believed, in good faith, that the marriage was valid. See also Bonomi, A., op. cit., paragraph 23 (p. 92).
63      See, in particular, the article entitled ‘Nullità del matrimonio e assegno di divorzio – Ufficio nazionale per i problemi giuridici’, available at: https://giuridico.chiesacattolica.it/nullita-del-matrimonio-e-determinazione-dellassegno-di-divorzio/, and Siciliano, V., ‘Le Sezioni Unite sugli effetti della delibazione della sentenza ecclesiastica di nullità del matrimonio concordatario nel giudizio di divorzio’, in Cammino Diritto, Diritto Ecclesiastico e Canonica, (online), No 5, 2021, and Cesarini, A., op. cit.
64      See, in particular, judgment No 9004 of the Corte suprema di cassazione (Supreme Court of Cassation), combined chambers, of 31 March 2021. According to Cesarini, A., op. cit., that decision follows the line of judgments of the Corte suprema di cassazione (Supreme Court of Cassation), combined chambers, Nos 16379 of 17 July 2014 and 18287 of 11 July 2018, in an endeavour to increase the effectiveness of the marital relationship and the associated mutual responsibilities.
65      See, in particular, judgment No 21331 of the Corte suprema di cassazione (Supreme Court of Cassation) of 18 September 2013.
66      See Guzmán Altuna, M., ‘Reconocimiento de eficacia civil de resoluciones matrimoniales canónicas’, op. cit., pp. 4 and 5. This author comments, in particular, on judgment No 227/2001 of the Tribunal Supremo (Supreme Court) of 5 March 2001, in which the court held that the civil effect of a divorce is not altered by a subsequent ecclesiastical judgment annulling the marriage, because the ecclesiastical jurisdiction and the civil jurisdiction operate in parallel, without any possible interference that could lead to the loss of the effect of a civil judgment obtained in other matrimonial proceedings brought before a civil court once an ecclesiastical judgment has been declared to be in accordance with the law of the State.
67      See, moreover, concerning entitlement to maintenance during marriage, under Article 1361 of Bürgerliches Gesetzbuch (Civil Code),
even though, the annulment of the religious marriage had to be declared by a civil court in Italy, since,
in German law, a declaration of invalidity of a marriage made by the Church has no effect upon the right to maintenance, Flindt, J.O., ‘Kein Vorrang des italienischen Delibationsverfahrens vor deutschem Trennungsunterhaltsverfahren’, in Neue Zeitschrift für Familienrecht, C.H. Beck, Munich, No 5, 2026, p. 266. This author considered the decision of the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart) 17 WF 14/25 of 30 July 2025, which concerns the parties in the main proceedings, that court having authorised the appeal on a point of law, to be convincing.
68      See point 18 of this Opinion.
69      See Article 22 of the Brussels IIa Regulation, which concerns the ‘grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment.’ Article 22(c) provides that ‘a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought’.