OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 26 March 2020 ( 1 )

Case C‑249/19

JE

v

KF

(Request for a preliminary ruling from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania))

(Reference for a preliminary ruling — Regulation (EU) No 1259/2010 — Enhanced cooperation in the area of the law applicable to divorce and legal separation — Determination of the law applicable to divorce and legal separation — Article 10 — Application of the law of the forum — Interpretation of the phrase ‘makes no provision for divorce’ — Assessment criteria — Restrictive or extensive interpretation)

1. In its reference for a preliminary ruling the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) seeks an interpretation of Article 10 of Regulation (EU) No 1259/2010, ( 2 ) a provision which has not yet been interpreted by the Court of Justice. ( 3 ) The case in the main proceedings concerns an action opposing JE and KF regarding the determination of the law applicable to their divorce proceedings. This regulation, the first ever Private International Law instrument in EU history adopted under the ‘enhanced cooperation’ procedure, is described by legal commentators as a success story and as constituting a cornerstone of future EU family law. ( 4 ) Romania is one of the 17 Member States participating in that enhanced cooperation.

I. Legal framework

A. European Union law

1. Regulation (EC) No 2201/2003

2. As provided in Article 3(1)(b) of Regulation No 2201/2003 ( 5 ): ‘In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State: … (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.’

2. Regulation (EU) No 1259/2010

3. Article 5 of Regulation No 1259/2010, ( 6 ) entitled ‘Choice of applicable law by the parties’, provides: ‘1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.’

4. Article 8 of that regulation, entitled ‘Applicable law in the absence of a choice by the parties’, sets out as follows: ‘In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seized; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that (c) of which both spouses are nationals at the time the court is seized; or, failing that (d) where the court is seized.’

5. Article 10 of that regulation, entitled ‘Application of the law of the forum’, provides: ‘Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply.’

6. Article 12 of that regulation, entitled ‘Public policy’, sets out as follows: ‘Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum.’

B. Romanian law

7. According to Article 2600(2) and (3) of the Romanian Civil Code: ‘(2) Where foreign law thus determined does not permit divorce, or does so only in extremely limited circumstances, Romanian law shall apply where one of the spouses is, on the date of the divorce petition, a Romanian national or habitually resident in Romania. (3) The provisions set out in paragraph (2) shall also apply where the divorce is governed by the law chosen by the spouses.’

II. Facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling

8. JE and KF were married in Iași, Romania, on 2 September 2001 and that relationship produced a child, who was born in Verona, Italy, on 23 June 2005.

9. JE brought an action before the Judecătoria Iași (Court of First Instance, Iași, Romania) on 13 October 2016, seeking a petition for divorce in respect of KF.

10. By civil judgment of 31 May 2017, that court declined jurisdiction to hear the dispute in favour of the Judecătoria Sectorului 5 București (Court of First Instance, Fifth District of Bucharest, Romania), at which the case was registered on 9 August 2017.

11. By civil judgment of 20 February 2018, the above court established the general jurisdiction of the Romanian courts with regard to the divorce proceedings at issue in accordance with Article 3(1)(b) of Regulation No 2201/2003. Moreover, it established that the law applicable to the dispute was Italian law, pursuant to Article 8(a) of Regulation No 1259/2010, since — on the date on which the court was seized of the divorce petition — the parties were habitually resident in Italy (the parties have resided in Italy for a considerable time).

12. In that respect, the Judecătoria Sectorului 5 București pointed out that, in accordance with Italian law, a divorce petition such as the one brought by JE can be applied for only where there has been a legal separation of the spouses established or ordered by a court and at least three years have passed between the legal separation and the time at which the court was seized of the divorce petition.

13. Since it had not been demonstrated that a court decision had been made to effect a legal separation of the parties and since Romanian law makes no provision for legal separation proceedings, the above court ruled that those proceedings had to be conducted before the Italian courts and, accordingly, any application to that effect made before the Romanian courts was inadmissible.

14. JE lodged an appeal against that judgment before the referring court, claiming that the first instance court should have applied Article 2600(2) of the Romanian Civil Code, which ‘constitutes the transposition into Romanian law of Article 10 of Regulation No 1259/2010’.

15. JE also invoked Article 12 of Regulation No 1259/2010, claiming that the application of Italian law is manifestly incompatible with the public policy of the competent forum, thus making it necessary to exclude the application of the foreign law otherwise applicable to the divorce proceedings and to apply Romanian law instead.

16. It is against that background that the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘On a proper construction of Article 10 of Regulation No 1259/2010, under which “where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply”, is the expression “the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce” to be interpreted: (a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?’

17. Written observations were submitted to the Court by the Romanian, German and Portuguese Governments as well as by the European Commission. No hearing was requested by the parties and none was held.

III. Analysis

A. Answer to the preliminary question

18. It is important to point out that all the parties intervening in the present proceedings submit that Article 10 of Regulation No 1259/2010 must be interpreted strictly, in the sense that the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’, which it contains, relates only to situations in which the applicable foreign law does not foresee divorce under any form; that is, that it does not know the institution of divorce.

19. In the present Opinion, I have come to the conclusion that that interpretation is manifestly correct.

20. Article 10 of Regulation No 1259/2010 excludes the application of the law determined in accordance with Article 5 or Article 8 of that regulation in cases in which, in particular, that law does not provide for divorce (the first alternative contained in Article 10, hereafter also ‘the provision at issue’). That alternative is unlikely to be availed of often in practice as it attempts to provide a remedy for the rare case where there is no national law governing divorce (within the EU, Malta was the last Member State to introduce a divorce law after a referendum that took place in 2011 ( 7 )). Practically, all States have divorce laws now, except for the Philippines and Vatican City, where only marriage annulment is permitted. Article 10 safeguards a right to divorce and I would point out that similar provisions (which equally grant a right to divorce as a kind of minimum standard) also exist in national conflict-of-law rules and have inspired that provision. ( 8 )

21. The referring court’s question follows from the fact that the law applicable to the case in the main proceedings is, pursuant to Article 8(a) of Regulation No 1259/2010, Italian law. According to Italian law, a divorce may only be applied for where legal separation has been established or ordered by a court beforehand, whereas the forum law (that is, Romanian law) does not provide for such a procedure.

22. Further to the contention set out at point 14 of the present Opinion, I would emphasise that Regulation No 1259/2010 is directly applicable and does not require transposition or equivalence in national law. Therefore, in order to determine the law applicable to an application for divorce, such as the one at issue in the main proceedings, Romanian courts may only apply Regulation No 1259/2010 and the referring court should not refer to the Romanian Civil Code in this respect, ( 9 ) as it is not relevant in the present circumstances.

23. The referring court notes that, according to national case-law, in circumstances such as those at issue where the Romanian courts are seized of an application for legal separation or an application for divorce, which was not preceded by a legal separation established or ordered in conformity with Italian law, Romanian courts reject such applications as, respectively: (a) inadmissible (because Romanian law makes no provision for proceedings for legal separation); (b) premature (on the basis that a divorce is applied for directly before Romanian courts, without a legal separation being granted by the Italian courts beforehand); or (c) unfounded, as in the present case (on the basis of those two grounds combined together ( 10 )).

24. In other words, the referring court explains that procedural obstacles (flowing from the absence of a procedure for legal separation in Romanian law) led to procedural solutions in those cases which did not permit analysis of the substance of those applications.

25. As I will explain below, the referring court’s question must be answered to the effect that the first alternative contained in Article 10 of Regulation No 1259/2010 needs to be interpreted strictly.

1. The wording and the scheme of the provision at issue

26. The wording of the first alternative contained in Article 10 of Regulation No 1259/2010 is clear. The law of the forum only applies ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ (that is, where a married couple has no possibility to divorce). There is nothing to suggest that that alternative would also apply when the applicable foreign law allows for divorce, but subjects it to restrictive conditions (for instance, prior legal separation).

27. Hence, the wording ‘makes no provision for divorce’ cannot mean that the applicable law ‘provides for divorce under certain (substantive or procedural) conditions’.

28. Indeed, as the Commission pointed out, even if all the Member States have their own rules pertaining to divorce, the conditions vary from one Member State to another and the simple fact that the applicable law is more restrictive (than the law of the forum) clearly does not mean that it ‘makes no provision for divorce’ in so far as if its conditions are met, divorce may be pronounced.

29. It follows that the wording of the first alternative contained in Article 10 of Regulation No 1259/2010 is only directed at cases where the applicable foreign law does not recognise a legal regime for divorce. ( 11 )

30. This is confirmed by Recital 24 of that regulation, ( 12 ) which provides that the law of the court seized should only apply when the applicable law ‘makes no provision for divorce’. Again, there is nothing to suggest that, in light of that recital, Article 10 also pertains to situations where divorce is allowed, but is subject to restrictive conditions.

31. The first alternative contained in Article 10 of Regulation No 1259/2010 is a consequence of the universal application of the Union conflict-of-law rules in relation to divorce and legal separation, in accordance with Article 4 of the same regulation: ‘the law designated by this Regulation shall apply whether or not it is the law of a participating Member State’. That provision posits ‘divorceability’ as a general and positive aspect of Union conflict-of-law rules in relation to divorce and legal separation and, in concreto of International Family law. The favor divortii in Regulation No 1259/2010 is reinforced by the principles of party autonomy and of the closest connection to the parties. These Union rules require, as it were, an ‘effective and unavoidable fundamental right to divorce’. ( 13 )

32. My interpretation of Article 10 of Regulation No 1259/2010 is supported by legal commentary, according to which that provision covers the situation where the law applicable under Articles 5 or 8 of that regulation does not recognise a legal regime for divorce at all and where divorce would simply not be possible. Therefore, the provision does not cover a case where the marriage cannot be ended because certain prerequisites are not met: for instance, where the applicable law sets out restrictive grounds for divorce such as the requirement of a long(er) period of separation. The application of Article 10 will also be precluded where the law of a State lays down unacceptably high requirements for divorce. ( 14 )

33. When the applicable law, determined under Articles 5 or 8 of Regulation No 1259/2010, ‘makes no provision for divorce’, the first alternative contained in Article 10 of that regulation remedies this lacuna by designating the lex fori. To give an example, and in contrast to the present case, if Philippine law (which only provides for legal separation and not for divorce) applied to divorce proceedings before the referring court, then the latter could have recourse to Romanian law to pronounce the divorce. ( 15 )

34. I agree with the position of the German Government that a reading of the above provisions in conjunction with other provisions of Regulation No 1259/2010 reinforces the interpretation of the first alternative contained in Article 10 of that regulation as not being effective when the applicable foreign law allows divorce subject to an obligatory and prior legal separation.

35. It follows from Article 1(1) of Regulation No 1259/2010 that that regulation applies to divorce and legal separation. When individual provisions of that regulation apply (also) to legal separation then that is mentioned expressly in the wording of those articles. ( 16 )

36. Hence, Regulation No 1259/2010 does not relegate legal separation to a minor role. If the first alternative contained in Article 10 of that regulation also applied to situations where divorce is permitted but subject to prior legal separation, then we must assume that the Union legislature would have expressly legislated to that effect.

37. In the present case, Italian law, as the applicable law, does not prohibit divorce; it merely subjects it to certain requirements, which is within its competence regarding its substantive family law. Therefore, in the present case, the applicable law should be determined in accordance with Articles 5 or 8 of Regulation No 1259/2010 and not pursuant to Article 10 thereof.

2. Systematic or contextual interpretation of the provision at issue

38. I consider (as does the Portuguese Government) that it is pertinent to refer also to Article 13 and Recital 26 of Regulation No 1259/2010. These provisions mitigate against an interpretation of the expression ‘makes no provision for divorce’ as meaning that the applicable foreign law submits it to certain conditions, but favour the view of the provision at issue as meaning that the applicable law does not provide for divorce in any eventuality.

39. Article 13 of Regulation No 1259/2010 provides that nothing in that regulation shall oblige the courts of a participating Member State whose law does not provide for divorce to pronounce a divorce. I consider (as does the Commission) that that provision merely has a declaratory value and not a normative one. Its relevance in the present case resides in the expression ‘does not provide for divorce’, which takes over the wording of Article 10.

40. Article 13 is explained in Recital 26 of Regulation No 1259/2010. It provides that ‘where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not provide for divorce, this should be interpreted to mean that the law of this Member State does not have the institut[ion] of divorce’.

41. Recital 26 provides a clear explanation which goes beyond the specific context of Article 13 on the interpretation of the expression ‘makes no provision for divorce’. The explanation in that recital also applies to Article 10, which employs the same expression.

42. Indeed, legal commentators contend that, although Recital 26 relates to Article 13 of Regulation No 1259/2010, the interpretation of Article 10 becomes clearer if the provision is read in conjunction with that recital. It follows from Recital 26 that if divorce is a known concept under the applicable law, but not available to the spouses in the specific circumstances of their relationship, then Article 10 does not apply and the case can only be assessed under Article 12 of that regulation. ( 17 )

43. Therefore, Article 10 does not pertain to situations where a marriage cannot be dissolved due to certain requirements not being met, for instance, because the restrictive prerequisites are not fulfilled (such as a long(er) period of separation mandated by the applicable divorce law). Further, Article 10 is not applicable where the law of the State provides for unreasonably high requirements for a divorce. ( 18 ) Given that the institution of divorce exists in Italian law, Article 10 cannot apply in the present case.

3. Historical interpretation of the provision at issue

44. Historical interpretation holds that a provision should be interpreted in the light of its history, taking account of the different stages which led to its adoption.

45. The initial proposal for a regulation modifying Regulation No 2201/2003 ( 19 ) contained no provision comparable to the current Article 10 of Regulation No 1259/2010. During the ensuing negotiations, several Member States defended the point of view according to which divorce is a right, which must be guaranteed in their domestic legal system. ( 20 ) Since no agreement could be reached on that proposal, in 2010 the Commission adopted the proposal for a Council regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. ( 21 )

46. The text which became Article 10 had previously featured in the 2010 Commission Proposal as the draft Article 5 and the content of the article remained unchanged in the legislative process. In the preamble, the reason given for its insertion was to avoid discrimination. Recital 20 of the Proposal also contained the same wording as the current Recital 24, but did not include any reference to the public policy provision. ( 22 )

47. The historical interpretation also confirms the strict construction of the provision at issue that I am defending in the present Opinion. Indeed, the first alternative contained in Article 10 was introduced above all with a view to Maltese law (given that, at the time of drafting of the Regulation, Malta did not provide for the granting of any divorce ( 23 )).

48. As pointed out by the Portuguese Government, the provision at issue expresses the favor divortii principle, in the sense that it prohibits the application of a substantive law, which does not allow for a divorce, even if that law was chosen by common accord of the spouses.

49. Moreover, neither the travaux préparatoires nor recital 24 of that regulation contain any indication according to which Article 10 should also be applicable when foreign law does provide for divorce, but attaches it to restrictive conditions.

50. Rather, as noted in point 40 of the present Opinion and as pointed out by the Commission, the Union legislature clarified, in Recital 26 of the regulation, that the terms ‘does not provide for divorce’, employed in Article 13 and Article 10, should be interpreted in the context of Article 10 to mean that the law of the forum applies when the applicable law does not provide for the institution of divorce.

4. The spirit and purpose of the provision at issue

51. I share the view of the German and Romanian Governments that the strict interpretation of the first alternative contained in Article 10 of Regulation No 1259/2010 stems, in particular, from the derogatory character of that provision (i.e., derogating from rules provided in Articles 5 and 8 of that regulation) as well as from recitals 24 and 26 thereof.

52. Therefore, Article 10 does not allow the competent court any margin of appreciation and presents it with a simple and objective alternative: either the applicable law provides for the institution of divorce or it does not.

53. Such an interpretation is confirmed by the aims of Regulation No 1259/2010, which are expressed clearly in its Recitals 9 and 29.

54. These seek to harmonise the conflict-of-law rules in relation to divorce and legal separation in order to reinforce legal certainty (Articles 5 and 8 of Regulation No 1259/2010 define clearly which law is applicable to a divorce or a legal separation), foreseeability and flexibility while avoiding the risk of forum shopping (that is, seeking the most favourable court between Member States) and, therefore, they aim to facilitate free movement of persons within the Union. The foreseeability of the applicable legislation of the participating Member States may also constitute a means of reducing the incentive of forum shopping, which was facilitated by the wide choice of instances provided for under Article 3 of Regulation No 2201/2003.

55. It is important to point out, as the Commission has, that through the adoption of common rules on conflict-of-laws, the participating Member States accepted the principle that their courts may be obliged to apply foreign law despite differences which this might present vis-à-vis their own national law, and, that the only exceptions to that principle are those foreseen in Articles 10, 12 and 13 of Regulation No 1259/2010. Therefore, the possibility to apply the law of the forum, as set out in Article 10 of that regulation, constitutes an exception to that principle which, as such, must be interpreted strictly. ( 24 )

56. In contrast, an extensive interpretation of the provision at issue, as referred to in the preliminary question, would frustrate the spouses’ autonomy in relation to divorce and to legal separation (foreseen under Article 5 of the regulation) as well as prevent the application (pursuant to Article 8 of the regulation, in the absence of a choice by the parties) of the law which is most closely linked to them.

57. The extensive interpretation would also go against the regulation’s objective to provide legal certainty for citizens and it could encourage forum shopping, given that a party requesting a divorce could introduce an application before the courts of a Member State where the law provides for less restrictive conditions for the grant of a divorce. Indeed, it would also compromise the objective of foreseeability intended by the regulation in so far as it would necessitate a case-by-case analysis of the conditions in which a divorce may be allowed in accordance with the applicable law and a subjective assessment of the extent to which those conditions may be qualified as restrictive.

58. Moreover, as the German Government has noted, divorce that is allowed only under certain conditions constitutes, in principle, the rule rather than the exception and, in this instance, the conditions foreseen by Italian law are, to my mind, not restrictive to such an extent that they would make obtaining a divorce impossible in practice.

B. Consequences of the answer to the preliminary question

59. In view of: (i) the fact that, in the preliminary question, the referring court raises the difficulty that Romanian law does not recognise the concept of a legal separation and, therefore, does not contain procedural provisions applicable to such procedures; (ii) the approach of the Romanian courts mentioned in point 23 of the present Opinion; and (iii) providing a complete and useful answer to the referring court, I consider it necessary for the Court to also provide guidance on the consequences of the proposed answer to the preliminary question.

60. I believe that, ‘in order to provide the national court with an appropriate [and useful] answer for the purpose of the application of [EU] law in the dispute before it’, ( 25 ) it is necessary to consider the question to what extent the referring court must apply Italian divorce law, if the latter requires an obligatory legal separation, a procedure for which no equivalent provision or measure exists in Romanian law.

61. Indeed, it is for the Court of Justice to provide the national court with ‘all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions’. ( 26 )

62. First of all, pursuant to Section 1 of Chapter II of Regulation No 2201/2003, where the court of a Member State is seized of an application for divorce, it cannot decline jurisdiction (contrary to a court seized in the area of parental responsibility, which has discretion to address the courts of another Member State, under Article 15 of that regulation) and it is obliged to rule on that application for divorce.

63. I agree with the view of the German Government that the Member States participating in the enhanced cooperation implemented by Regulation No 1259/2010 must ensure that both divorce and legal separation may be granted by their courts. Therefore, instead of considering that legal separation must first be established or ordered before the Italian courts, the Romanian courts should, to my mind, allow for such a procedure and apply, by analogy, national procedural rules relating to divorces or even adapt foreign (Italian) procedural rules relating to legal separation (in conjunction with Romanian national rules). Otherwise, the provisions of Regulation No 1259/2010 would be partially ineffective.

64. First, legal separation constitutes a key element of Regulation No 1259/2010 and, second, there is nothing unusual in a court being called upon, in accordance with the law applicable under that regulation, to decide upon a legal separation. It follows that the referring court cannot refuse to rule on the application in the main proceedings on the basis of Article 12 of the above regulation (which is reserved for exceptional cases ( 27 )) on the ground that its national law does not provide for legal separation or for procedural rules for legal separation.

65. By way of a concrete solution in the present case, the Commission proposed that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances where the procedural law of the forum does not allow for those procedural conditions to be met. Therefore, if, in a particular case, the substantive conditions for a legal separation order are fulfilled, the forum court may remedy the fact that that court itself cannot grant such an order by waiving that foreign procedural condition.

66. I concur. In my view, such a solution would be balanced and would correspond to the implicit intention of the Union legislature. First, it would not unduly encourage forum shopping, because it would require the substantive conditions of the applicable law to be fulfilled. The applicant would not be able to avoid those conditions by seizing another court under the very generous rules of Regulation No 2201/2003 and by asking for his or her own law to be applied (parties can avoid those conditions quite easily if they agree on the choice of the law of the forum).

67. Secondly, that solution would be consistent with the fundamental principle in the area of conflict-of-law according to which a procedural question falls within the law of the forum. That principle is reflected in the EU law principle according to which, unless otherwise indicated, procedures are addressed to courts and authorities which are dealing with a case, subject to the principles of equivalence and effectiveness. ( 28 )

68. Indeed, in a number of recent legal instruments, the EU legislature was confronted with the question as how best to guarantee respect for the substance of the applicable law in the State of the forum, even when the latter law has no equivalent (substantive) concept in law. Those instruments provide mechanisms for the adaptation of national substantive and procedural law in order to guarantee the correct result under the applicable law. Reference may be made, for instance, to the rules on applicable law in Regulation (EU) No 650/2012, ( 29 ) concerning the adaptation of rights in rem (Article 31), the appointment and powers of an administrator of the estate in certain situations (Article 29), as well as in Regulation (EU) No 2016/1103 ( 30 ) and Regulation (EU) No 2016/1104, ( 31 ) concerning the adaptation of rights in rem (Article 29).

69. While Regulation No 1259/2010 does not provide specifically for such an adaptation, neither does it expressly prohibit it.

IV. Conclusion

70. For those reasons, I propose that the Court should answer the question referred for a preliminary ruling by the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) as follows: On a proper construction of Article 10 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, the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ is applicable only where the foreign applicable law makes no provision for any form of divorce; in other words, it does not recognise the institution of divorce. However, where the applicable law sets out a condition that follows from its procedural law — which condition the court seized is unable to apply due to the constraints imposed by its own procedural law — the court seized may waive that condition if the conditions provided in the substantive law of the lex causae are fulfilled in the case before it. In the present case, the court seized is not required, by means of a separate procedure, to recognise the legal separation of the parties during a period of three years prior to the divorce. It must, however, confirm in its decision in the divorce proceedings that that condition of legal separation was fulfilled. In order to obtain proof of the respect of that condition, the court seized is required, to the extent necessary, to adapt the procedural law of the forum.

( 1 ) Original language: English.

( 2 ) Council Regulation 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, also known as ‘Regulation Rome III’).

( 3 ) Admittedly, the Court was asked to rule on that provision in the cases which gave rise to order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343) and judgment of 20 December 2017, Sahyouni (C‑372/16, EU:C:2017:988). In the former order, the Court, however, declared itself lacking jurisdiction to answer the questions referred and, in the latter judgment, the Court was not required to interpret that provision. See also footnote 12 of the present Opinion.

( 4 ) For most participating States, the regulation brought about at least two fundamental changes: the introduction of party autonomy, on the one hand, and the substitution of habitual residence for nationality, on the other hand, as the primary connecting factors of relevance in the absence of a contractual choice of law clause. See Basedow, J., European Divorce Law: Comments on the Rome III Regulation, in Verbeke, A.-L., Scherpe, J.M., Declerck, C., Helms, T., and Senaeve, P., Confronting the Frontiers of Family and Succession Law — Liber Amicorum Walter Pintens, Intersentia, 2012, p. 150.

( 5 ) 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, also known as ‘Regulation Brussels II bis’).

( 6 ) Council Regulation 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).

( 7 ) Article 66 B of the Civil Code introduced by the Civil Code Amendment Act, Government Gazette of Malta No 18784 dated 29 July 2011.

( 8 ) See, for instance, for Spain: Article 107(2), second sentence, lit. c, Código Civil; for Germany: Article 17(1), second sentence of the introductory law of the Bürgerliches Gesetzbuch (BGB); for Italy: Article 31(2) legge 31.5.1995, no. 218 — Riforma del sistema italiano di diritto internazionale privato; for Belgium: Article 55(3) of the Code on private international law of 2004. See Lein, E., in Calliess, G.-P., Rome Regulations: Commentary, Second Edition, Kluwer, 2015, 916, Pereira, P., Rome III: la compétence juridictionnelle et la loi applicable en matière matrimoniale, RMCUE, 2007, p. 394 and Basedow, J., op. cit., p. 148.

( 9 ) As the referring court mentions in paragraph 15 of the order for reference (under the section entitled ‘Provisions of national law applicable in the present case’).

( 10 ) The reasoning of the court of first instance referred both to the fact that the parties were not previously legally separated pursuant to a court order and that such a separation is inadmissible since no provision is made for a legal separation procedure under Romanian law. See the order for reference, paragraphs 14 and 26.

( 11 ) This interpretation is widely defended in legal commentary. In fact, I have not come across any literature arguing for the opposite interpretation. See, for instance, Helms, T., in Rauscher, T., Europäisches Zivilprozess- und Kollisionsrecht: EuZPR/EuIPR — Kommentar, Band V, 4th edition, ottoschmidt, 2016, p. 885. I am citing further literature further below in the present Opinion.

( 12 ) Concerning the various linguistic versions of that recital, see the Opinion of Advocate General Saugmandsgaard Øe in Sahyouni (C‑372/16, EU:C:2017:686, points 76 and 77) and Lein, E., op. cit., p. 920.

( 13 ) ‘Ein wirksames und unverzichtbares Grundrecht auf Scheidung’ (see Gruber, U.P., Scheidung auf Europäisch — die Rom III-Verordnung, IPRax 2012, p. 391, and de Maizière, N., Das Europäische Scheidungskollisionsrecht nach der Rom III-Verordnung, Jenaer Wissenschaftliche Verlagsgesellschaft, 2017, p. 244).

( 14 ) Tolani, M., in Althammer, C., Brussels IIa [and] Rome III, Beck, 2019, p. 360.

( 15 ) See Lein, E., op. cit., p. 919. For further examples see Henrich, D., Zur Parteiautonomie im Europäisierten Internationalen Familienrecht, in Verbeke, A.‑L., Scherpe, J.M., Declerck, C., Helms, T., and Senaeve, P., op. cit., p. 707.

( 16 ) See, for instance, the second alternative contained in Article 10 of Regulation No 1259/2010 which references situations where the applicable law: ‘does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex’ (emphasis added).

( 17 ) Lein, E., op. cit., p. 920. See also Helms, T., op. cit., p. 885 (with references to other legal literature defending this view in footnote 19 of that work). See also Gruber, U.P., op. cit., p. 390.

( 18 ) Tolani, M., in Althammer, C., Brüssel IIa [und] Rom III: Kommentar, Beck, 2014, p. 362.

( 19 ) COM(2006) 399 final.

( 20 ) See the document of Council 8364/07 (Presse 77), p. 11 of the German language version.

( 21 ) COM(2010) 105/2 final.

( 22 ) See Lein, E., op. cit., p. 919.

( 23 ) For the same interpretation see Helms, T., op. cit., p. 885.

( 24 ) See, for instance, judgment of 6 June 2019, Weil (C‑361/18, EU:C:2019:473, paragraph 43).

( 25 ) Judgment of 28 June 1978, Simmenthal (70/77, EU:C:1978:139, paragraph 57).

( 26 ) Judgment of 29 September 2016, Essent Belgium (C‑492/14, EU:C:2016:732, paragraph 43).

( 27 ) See Recital 25 of Regulation No 1259/2010.

( 28 ) See judgment of 7 June 2007, van de Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, see, in particular, paragraph 28).

( 29 ) Regulation of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).

( 30 ) 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).

( 31 ) 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 the property consequences of registered partnerships (OJ 2016 L 183, p. 30).