In order to determine whether a situation of lis pendens exists, it is apparent from the wording of Article 19(1) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, that, in matrimonial matters, applications brought before the courts of different Member States are not required to have the same cause of action. While the proceedings must involve the same parties, they may have a different cause of action, provided that they concern judicial separation, divorce or marriage annulment. That interpretation is supported by a comparison of paragraphs 1 and 2 of Article 19 of the regulation, from which it is clear that only the application of paragraph 2, concerning proceedings relating to parental responsibility, is subject to the proceedings brought having the same cause of action. Consequently, a situation of lis pendens may exist where two courts of different Member States are seised of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce.

Where two courts of different Member States are seised of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce, and where the parties are the same, in order for the jurisdiction of the court first seised to be established within the meaning of Article 19(1) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, it is sufficient that the court first seised has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded in national law as being the first defence on the substance submitted before that court.

In the case of judicial separation and divorce proceedings brought between the same parties before the courts of two Member States, Article 19(1) and (3) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation No 1347/2000, must be interpreted as meaning that, in a situation in which the proceedings before the court first seised in the first Member State expired after the second court in the second Member State was seised, the criteria for lis pendens are no longer fulfilled and, therefore, the jurisdiction of the court first seised must be regarded as not being established.

In order for there to be a situation of lis pendens, it is important that those proceedings be pending simultaneously before the courts of different Member States. Where two sets of proceedings have been brought before the courts of different Member States, and one set of proceedings expires, the risk of irreconcilable decisions, and thereby the situation of lis pendens within the meaning of Article 19 of the regulation, disappears. It follows that, even if the jurisdiction of the court first seised was established during the first proceedings, the situation of lis pendens no longer exists and, therefore, that jurisdiction is not established. In that situation, the court second seised becomes the court first seised on the date of that lapse.

In such circumstances, the conduct of the applicant in the first proceedings, notably any lack of diligence on his part, is not relevant for the purpose of determining whether the jurisdiction of the court first seised is established. The fact that there is a time difference between the Member States concerned which would enable the courts of the first Member State to be seised before those of the second Member State, and, moreover, the fact that the proceedings before the court first seised in the first Member State expired very shortly before a third set of proceedings was brought before a court of the first Member State, are also irrelevant.

(see paras 37, 38, 43-47, operative part)