JUDGMENT of Mr. Justice Fennelly delivered the 29th day of July, 2008
1. The respondent wife commenced this action for judicial separation from
the appellant, her husband, eight years ago. The appellant first claimed
that the Irish courts should recognise his Dutch divorce of 1994 and that
the Irish courts should decline jurisdiction on that ground. He failed in
the High Court and in this Court, whereupon he commenced this second
procedure by way of a motion in which he asks the courts to decline
jurisdiction in respect of the ancillary reliefs sought by the respondent.
He relies on the Brussels Convention, the several Community regulations,
known as Brussels I, II and II bis, and a wide range of provisions of the
EC Treaty.
2. The High Court (McKechnie J) rejected all his arguments. He presents a
wide-ranging second appeal to this Court.
3. The action has yet to be heard. The appellant wishes the Court to refer
a number of questions of interpretation for preliminary ruling to the Court
of Justice of the European Communities.
Facts
4. The appellant and the respondent are Irish citizens.
(...)
7. From 1980 to 1987 approximately the parties jointly owned a family
home in Dublin. In 1987 the appellant commenced employment with a
large Irish company. In April, 1987 he took up a position with a subsidiary
of that company in the Netherlands. The family home was sold in Ireland.
The parties and their children resided in Holland from 1987 until 1992.
During this time unhappy differences developed in the marriage.
8. The respondent returned to Ireland with the children in the summer of
1992 in order to enable them to reintegrate into the Irish school system.
9. On the 26th October, 1993, solicitors acting for the respondent in the
Netherlands wrote to the appellant seeking maintenance and financial
support. In December of 1993 she caused a petition to be served on the
appellant in the Netherlands, where the appellant was still resident.
10. On the 2nd February, 1994, an interim maintenance order was made
by the County Court of Rotterdam. Under Dutch law the respondent
had four weeks from that date within which to institute proceedings for
divorce which would have enabled the interim maintenance order to
remain in place and continue to be enforceable. She never instituted such
proceedings.
11. On the 2nd March, 1994, the appellant instituted proceedings in the
District Court of Rotterdam seeking a divorce. The appellant returned
to Ireland permanently around the 28th May, 1994, to take up a senior
executive position with an Irish company, which he continues to hold.
12. On the12th September, 1994, the District Court of Rotterdam granted
a decree of divorce. The judgment recited provisions of Dutch law to
the effect that the court was empowered in the matter, as the appellant
had lived for more than twelve months in the Netherlands and that the
respondent did not object. The judgment of the Court included provision
for maintenance for the respondent but stated that it had no authority to
make provision for custody or maintenance of the children. I will refer to
this judgment as “the judgment of the Dutch Court.”
Irish legal proceedings
13. On the 6th July, 2000, the respondent commenced the present
proceedings by Special Summons in the High Court. (...)
15. The appellant filed a replying affidavit sworn on the 20th November,
2000. He made specific response to a claim by the respondent that the
decree of divorce granted in the Netherlands in September, 1994 was
not entitled to recognition in the state. He also referred to a separation
agreement reached between the parties in the Netherlands on the 12th
September, 1994. He argued, in his affidavit, that the High Court should
determine, as a preliminary issue, whether that decree of divorce was
entitled to such recognition. The sole legal issue raised by the appellant in
his affidavit of reply was that the Irish courts should recognise his Dutch
divorce. He said that the natural consequence of such recognition would
be to prevent the respondent from maintaining the proceedings. He said
that the respondent’s claim to be entitled to maintain the proceedings in
this jurisdiction ought to be refused.
16. At the time of swearing of his affidavit, the appellant could have put
forward any case based on the Brussels Convention of 1968. None of the
Brussels Regulations, later discussed, had come into force at that time.
17. Save as described hereunder, no further step has been taken in the
judicial separation proceedings. (...) It seems that the respondent has
agreed to leave this matter in abeyance while maintenance is being paid.
(...)
19. In a judgment of the 23rd November, 2001, following a five-day
hearing, Morris P, determined that the appellant was not entitled to a
declaration that the decree of divorce granted on the 12th September,
1994, under the civil law of the Netherlands was entitled to recognition in
the State.
20. On the 4th February, 2002, the appellant appealed to this Court
against the judgment and order of Morris P.
21. On the 26th November, 2003, this Court dismissed that appeal. Keane
C. J. delivered the unanimous judgment of the Court, holding that it
would not have been possible for the High Court to hold that the appellant
had acquired a Dutch domicile of choice.
(...)
23. On the 16th January, 2004, the respondent issued a notice of motion
seeking an order that the appellant should not be entitled to defend
the proceedings by reason of his failure to file an affidavit of means.
She complained of hardship arising from the inordinate delays in the
proceedings.
24. On the 28th January, 2004, some two months after the decision of
this Court, the appellant issued a new notice of motion seeking orders
that the High Court should decline jurisdiction in respect of the claims of
the respondent (...) The appellant relied upon:
•The provisions of (...) “the Brussels Convention”, as incorporated into
Irish law (...), and in particular, Articles 17, 19, 21 and 22 thereof;
•The provisions of Council Regulation (EC) No 44/2001 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial
matters (hereinafter “Brussels I”);
•The provisions of Council Regulation (EC) No 1347/2000 on jurisdiction
and the recognition and enforcement of judgments in matrimonial matters
and in matters of parental responsibility for children of both spouses
(hereinafter “Brussels II”);
•The State’s obligations as set out in Articles 3, 10, 18 and 39 of the
Treaty on European Union.
25. It has become clear, from the written submissions filed on behalf
of the appellant, that under the last heading it was intended to refer
to articles of the Treaty establishing the European Community (“the EC
Treaty”) and, in particular, to Article 39 concerning the free movement of
workers.
26. The High Court (McKechnie J) (...) delivered judgment on the 22nd
February, 2006. He refused the application.
27. At the hearing before the High Court the respondent raised a
preliminary objection that the new grounds of challenge to the jurisdiction
of the court should have been raised and determined as part of the
preliminary issue previously dealt with by the High Court (...), and in
Supreme Court (...). The respondent thus invoked the rule known as
the rule in Henderson v Henderson [1843] 3 Hare 100, although that
rule needs to be interpreted in the light of modern authority, including
a number of decisions of this Court. McKechnie J held that the grounds
raised in the notice of motion of the 28th January, 2004, both could
and should have been raised in the context of the earlier notice of
motion. He approved the existence and utility of the rule and thought
that it would have “equal application to multiple preliminary issues as
it has to multiple proceedings.” He added: “If such a rule did not exist,
then considerable injustice could result to individual parties and great
disturbance and inconvenience caused to the efficient administration
of justice.” The learned judge, nonetheless, decided in his discretion in
favour of permitting the appellant to proceed.
28. (...) the learned High Court judge dismissed the application of the
appellant. Since each of these matters needs to be considered anew on
the hearing of this appeal, I will confine myself to a brief summary of the
conclusions of the High Court judgment as follows:
1. The maintenance decree of the 12th September, 1994, came within
the scope of the Brussels Convention, in particular Article 5(2). The
application of that article was not affected by the fact that the Dutch
maintenance order was ancillary to the contemporaneous Dutch divorce
decree (see Case C-120/79 de Cavel v de Cavel [1980] ECR I-731);
2. The courts of the Member States are bound to apply the lis pendens
provisions respectively of the Brussels Convention, or, if applicable, of
the respective Regulations, provided it is shown that they apply to the
circumstances of the case;
3. It is essential to the application of either or any of the Regulations
that it be shown that the judgment of the Dutch Court comes within its
temporal framework. The wording of temporal or transitional provisions of
each of the Regulations showed that they did not apply to that judgment.
4. If, however, the judgment of the Dutch Court came within the scope of
the Brussels Convention at the time when it was given, it remained within
its provisions (see paragraph 72 of the judgment): “if the order qualified
for recognition in 1994 it retains that right of recognition today;”
5. However, the maintenance order made as part of the judgment of
the Dutch Court was “predicated on the divorced status of the parties.”
Following the principle laid down by the Court of Justice in Case C-145/86
Hoffman v Kreig [1988] ECR 645, the basis on which the maintenance
decree of the Dutch Court was made was irreconcilable with the decision
of the Supreme Court of the 26th November, 2003, already given in this
case. At the time of the judgment of the Dutch Court, it was not the aim
of the Brussels Convention, as shown, inter alia, by Article 27(3) and (4)
to derogate from the domestic rules of the Member States regarding the
status of persons;
6. Consequently the maintenance aspect of the judgment of the Dutch
Court did not qualify for recognition in this jurisdiction. Thus the High
Court had jurisdiction to deal with the claims made by the respondent in
the present proceedings.
The appeal
29. The notice of appeal raises sixteen separate grounds. In summary, the
appellant claims that the learned trial judge was wrong in the following
principal respects:
1. In failing to hold that the judgment of the Dutch Court came within the
provisions of Brussels I or, alternatively, Brussels II;
2. In holding that the judgment should be considered pursuant to the
Brussels Convention;
(...)
4. In holding that the Supreme Court judgment of the 26th November,
2003, was irreconcilable with the judgment of the Dutch Court;
5. In holding that the maintenance order of the Dutch Court was
dependant on the enforceability of the divorce decree or was not entitled
to recognition by virtue of Article 27(3) or (4) of the Brussels Convention;
(...)
30. Apart from these points concerning the substance of the relief sought
by the appellant pursuant to his notice of motion, the respondent argues
on this appeal that the learned trial judge erred in failing to give effect to
the rule in Henderson v Henderson. The appellant counters in a separate
ground of appeal that the learned trial judge was wrong in law in failing to
hold that he was obliged as a matter of Community law not to apply that
rule to the issues of Community law raised by him.
31. In my opinion, this is not a case to which the Court should apply
the rule in Henderson v Henderson with the effect of precluding the
appellant from seeking the relief set out in his notice of motion. It is
clear that Brussels I was not in force at the time of the first notice of
motion for decision of a preliminary issue. That Regulation, as will appear
later, is now the legal basis for enforcement of maintenance orders
between the Member States. It is the principal focus of the appellant’s
arguments. It entered into force on the 1st March, 2002, which was after
the delivery of judgment by Morris P. It could not have been invoked
in those proceedings. While this temporal problem does not affect the
Brussels Convention or Brussels II, it clearly also applies to Brussels II
bis. I do not think it is desirable to separate out one part of the case. The
arguments concerning the Convention and Brussels I, in particular, are
closely interlinked. It is preferable, in the circumstances, to deal with the
arguments on their merits.
The Convention and Regulations
32. The appellant maintains that the ancillary orders sought by the
respondent in her claim conflict with the maintenance aspect of the
judgment of the Dutch court in 1994. Thus, an Irish court cannot
entertain them and must decline jurisdiction because the entire
proceeding runs the risk of inconsistent judgments.
33. Counsel for the appellant drew attention to a principle well-
established in the case law of the European Court of Justice. Though
decided in the context of the Brussels Convention, it may be assumed
to be equally applicable to the Brussels Regulations. The underlying
objective of the Convention is to avoid conflicts between judgments
delivered in the courts of the Member States between the same parties
and touching on the same subject-matter. It follows that the courts of
the Member States must act so as to prevent conflicting judgments from
arising. The matter was expressed as follows in the judgment in Case
C-163/95 von Horn v. Cinnamond [1997] ECR I-5451:
“…the aims of the Brussels Convention as set out in its preamble, ……
are, in particular, to facilitate reciprocal recognition and enforcement of
judgments of courts and tribunals and to strengthen the legal protection
of persons established in the Community. With respect more particularly
to Article 21, the Court has repeatedly observed that that provision,
together with Article 22 on related actions, is contained in Section 8 of
Title II of the Brussels Convention, a section which is intended, in the
interests of the proper administration of justice within the Community,
to prevent parallel proceedings before the courts of different Contracting
States and to avoid conflicts between decisions which might arise
therefrom. Those rules are therefore designed to preclude, in so far
as possible and from the outset, a situation such as that referred to in
Article 27(3), namely the non-recognition of a judgment on account of its
irreconcilability with a judgment given between the same parties in the
State addressed…”
The Court cited Case 144/86 Gubisch Maschinenfabrik v. Palumbo [1987]
ECR 4861, paragraph 8, and Case C-351/89 Overseas Union Insurance
and Others v New Hampshire Insurance [1991] ECR I-3317, paragraph
16, upon which the appellant relies. This principle does not, however,
exist in vacuo. The appellant seeks, therefore, to situate his submissions
within a number of Community instruments in the alternative.
34. The principal argument is that Brussels I (Council Regulation (EC) No
44/2001) rather than the Brussels Convention applies to the judgment
of the Dutch Court. If this point is accepted, the appellant does not
have to meet the objection that, by virtue of Article 27 of the Brussels
Convention, the judgment of the Dutch Court was not, when it was
delivered, entitled to recognition in Ireland because it was ancillary
to a judgment concerning the status of the parties (divorce). Brussels
I contains no provision equivalent to Article 27(4) of the Brussels
Convention.
35. The appellant submits, in the alternative, that Brussels II (Council
Regulation (EC) No 1347/2000) or, since that Regulation is now repealed,
its replacement Brussels II bis (Council Regulation (EC) No. 2201/2003)
applies.
36. The transitional provisions of the respective regulations are crucial to
this argument.
37. I will now examine these points in more detail. It is both logical
and chronologically more convenient to commence with the Brussels
Convention.
The Brussels Convention
38. The Jurisdiction of Courts and Enforcement of Judgments Act 1988
gave effect in Irish law to the Brussels Convention. It was repealed and
replaced by the Jurisdiction of Courts and Enforcement of Judgments Act
1998. I assume, for the purposes of this first part of the analysis, that
the Convention remains in force, at least as between the parties and
for the purposes of this case, though that very matter is very much in
contention. Article 5 lays down special rules for the exercise of jurisdiction
in a number of types of case. One of those is maintenance. A person
domiciled in a Contracting State may be sued, pursuant to Article 5(2) in
another Contracting State:
“in matters relating to maintenance, in the courts for the place where
the maintenance creditor is domiciled or habitually resident or, if the
matter is ancillary to proceedings concerning the status of a person, in the
court which, according to its own law, has jurisdiction to entertain those
proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties.
39. The Court of Justice has held that it is immaterial to the enforcement
of a judgment pursuant to the Convention that enforcement is being
sought of a claim which was ancillary to a main or principal claim in the
court of the originating contracting state. It is obvious from the wording
of Article 5(2) that maintenance orders made as ancillary to divorce
proceedings can, in general, come within that provision. In Case 120/79
de Cavel v de Cavel [1980] ECR 731, the Court held, at paragraph 11,
that “…the scope of the Convention extends……to maintenance obligations
which legislation or the court places on spouses for the period after
divorce.” (see also Case 220/95 van den Boogaard v Laumen [1997] ECR
I-1147.)
40. A judgment given on the basis of the exercise of jurisdiction in
accordance with the Convention may be enforced in another contracting
state pursuant to Section 2 of the Convention and must be recognised
pursuant to Article 26. The latter provides that;- “A judgment given in
a Contracting State shall be recognized in the other Contracting States
without any special procedure being required.”
41. It follows that it is not permissible to issue proceedings in a second
contracting state in respect of a matter on which the court of another
contracting state has already given judgment between the same parties.
In Case 42/76 de Wolf v Cox [1976] ECR 1759 the plaintiff sued in the
Dutch courts in respect of a debt for which he had already obtained
judgment in a Belgian court. It appears that it was less expensive simply
to sue again rather than follow the Convention enforcement procedure
under Dutch law. The Court held, on a reference from the Hoge Raad of
the Netherlands, that:
“To accept the admissibility of an application concerning the same
subject-matter and brought between the same parties as an application
upon which judgment has already been delivered by a court in another
contracting state would therefore be incompatible with the meaning of
the provisions quoted [principally Article 26]. It also results from Article
21 of the Convention, which covers cases in which proceedings ‘involving
the same cause of action and between the same parties are brought in
the courts of different Contracting States’ and requires that a court other
than the first seised shall decline jurisdiction in favour of that court, that
proceedings such as those brought before the Kantonrechter of Boxmeer
[the Dutch court] are incompatiblewith the objects of the Convention.
That provision is evidence of the concern to prevent the courts of two
contracting states from giving judgment in the same case.”
42. The Court thus established the broad principle, mentioned above,
that the courts of the contracting states should avoid the risk of
giving irreconcilable judgments. Even in the absence of express
provision for cases where judgment had already been given, it applied
a purposive interpretation by building on the combined effect of Article
26 (recognition) and Article 21 (lis pendens). It follows that an Irish
court may not entertain a claim in respect of a matter covered by the
Brussels Convention where the court of another contracting state has
given judgment between the same parties.
43. However, the Brussels Convention also provides for non-recognition of
judgments in certain cases. Article 27 provides that:-
“A judgment shall not be recognized:
……………….
3. if the judgment is irreconcilable with a judgment given in a dispute
between the same parties in the State in which recognition is sought;
4. if the court of the State of origin, in order to arrive at its judgment,
has decided a preliminary question concerning the status or legal capacity
of natural persons, rights in property arising out of a matrimonial
relationship, wills or succession in a way that conflicts with a rule of the
private international law of the State in which the recognition is sought,
unless the same result would have been reached by the application of the
rules of private international law of that State”
44. Paragraph 4 of this provision appears, at first sight, more relevant to
the present case than paragraph 3, although the Court chose principally
to apply the former provision in the important case which I will now
discuss. The Dutch maintenance order is the foundation of the appellant’s
objection to the jurisdiction of the Irish court to entertain the ancillary
claims in the Special Summons. It forms part of the judgment of the
Dutch Court. The Dutch Court had to decide to grant a decree of divorce
before making its maintenance order. There is, therefore, no question
but that the court, in the words of Article 27(4), “in order to arrive at
its judgment, has decided a preliminary question concerning the status
…… of natural persons…” I did not understand counsel for the appellant
to argue otherwise. Although the Brussels Convention is listed first in
the notice of motion as a basis for claiming that the Irish court must
decline jurisdiction, the entire thrust and substance of the argument at
the hearing of the appeal was that the Convention no longer applies.
45. The leading case is Case 145/86 Hoffmann v Kreig [1988] ECR 645.
The facts are important. The husband and wife were German nationals.
They were married in 1950. In 1978, the husband left the matrimonial
home and moved to live in the Netherlands. In 1979 a German court,
on the wife’s application, ordered him to pay maintenance to her as
a separated spouse. In 1980, a Dutch court, on the application of the
husband, granted a decree of divorce. At that time, as the Court of Justice
makes clear in its judgment, the decree of divorce fell outside the scope
of the Convention. It had not been recognised by the German court
under German law at the time of the maintenance order. In 1981, the
wife applied in the Dutch courts pursuant to the Brussels Convention for
enforcement of the German maintenance order. The German maintenance
order was not enforceable in the Netherlands for what the Court of
Justice, on the matter being referred to it, described as “reasons which lie
outside the scope of the Convention.” The Court said at paragraph 13 of
its judgment:
“In this instance, the judgment whose enforcement is at issue is one
which orders a husband to make maintenance payments to his spouse by
virtue of his obligations, arising out of the marriage, to support her. Such
a judgment necessarily presupposes the existence of the matrimonial
relationship.” (emphasis added).
46. The court then proceeded to consider whether the grant of the
Dutch decree of divorce could terminate the enforcement of the German
maintenance judgment, which remained enforceable in Germany, “the
decree of divorce not having been recognised there.” It recalled that
Article 1(2) of the Convention provided that “the Convention did not
apply, inter alia, to the status or legal capacity of natural persons” and
that the Convention “contains no rule requiring the court of the state in
which enforcement is sought to make the effects of a national decree of
divorce conditional on recognition of that decree in the state in which the
foreign maintenance order is made.”
47. The court found support for that statement in the provisions of Article
27(4):
“16. That is confirmed by Article 27 (4) of the Convention, which excludes
in principle the recognition of any foreign judgment involving a conflict
with a rule – concerning inter alia the status of natural persons – of
the private international law of the state in which the recognition is
sought.That provision demonstrates that, as far as the status of natural
persons is concerned, it is not the aim of the Convention to derogate from
the rules which apply under the domestic law of the court before which
the action has been brought.
17. It follows that the Convention does not preclude the court of the state
in which enforcement is sought from drawing the necessary inferences
from a national decree of divorce when considering the enforcement of
the foreign maintenance order.
18. Thus the answer to be given to the national court is that a foreign
judgment whose enforcement has been ordered in a Contracting State
pursuant to Article 31 of the Convention and which remains enforceable
in the state in which it was given must not continue to be enforced in
the state where enforcement is sought when, under the law of the latter
state, it ceases to be enforceable for reasons which lie outside the scope
of the Convention.”
48. In my view, the Hoffmann case conclusively establishes that the
Convention does not require the Irish courts to recognise the judgment
of the Dutch Court in respect of maintenance. Naturally, the respondent
is not seeking to enforce it. She wants to obtain maintenance from
the Irish court. However, the appellant says that the Irish courts are
bound, by virtue of Article 26, to recognise it. Hoffman says, as does the
Convention, that it does not apply to “the status of natural persons.” That,
as is obvious from the judgment, includes marital status. Contracting
states were free to continue to apply their rules of private international
law with regard to the recognition of foreign judgments concerning
status, i.e., divorce. Article 27(4) in particular permits national courts to
apply their own law regarding divorce and to refuse to enforce a foreign
judgment which is inconsistent with the status of the parties under its
own law. It is true that the facts of the present case are the converse of
Hoffmann. There the parties were divorced in the state second seised but
remained married according to the law of the state first seised. Here, the
situation is reversed. The parties remain married under Irish law, though
they are divorced according to the law of the Netherlands. The principle in
Hoffmann is that the courts of the state where enforcement is sought are
free, in accordance with the Brussels Convention, to apply their own rules
of private international law where enforcement would conflict with those
rules.
49. The Court has not heard any argument suggesting that a distinction
in principle could be founded on the difference in the facts. I am satisfied
that no such distinction could be made. Enforcement of a maintenance
order granted as ancillary to a Dutch divorce decree would conflict with
the existing judgment of this Court, which ruled finally on the status of
the parties in 2003.
50. I am satisfied that, if the Brussels Convention continues to apply
to the facts of this case, and specifically if it continues to apply to the
question of whether the Irish courts should decline jurisdiction by reason
of the existence of the judgment of the Dutch Court, the appellant’s case
must fail.
The Brussels Regulations
51. The inescapable fact which faces the appellant is the date of the
judgment of the Dutch Court, which is in September 1994. If it had been
delivered at any time since the entry into force of either Brussels I (1st
March 2002) or Brussels II (1st March 2001), the position might well have
been radically different. It will be necessary to consider the actual effects
of those Regulations only if either or both of them applies.
52. Following the entry into force of Brussels II (since repealed) there
was in existence a Community instrument purporting to regulate, as is
clear from its title, “jurisdiction and the recognition and enforcement
of judgments in matrimonial matters…” between the Member States.
Article 2 of that Regulation regulated jurisdiction between the courts of
the Member States “in matters relating to divorce, legal separation and
marriage annulment.” Crucially, however, as was made clear by Recital
10, the Regulation was “confined to proceedings relating to divorce, legal
separation or marriage annulment.” Specifically, it did not affect “the
maintenance obligation or any other ancillary measures,” although, as
provided for by Recital 11, it covered parental responsibility “on issues
that are closely linked to proceedings for divorce, legal separation or
marriage annulment.” Consequently, none of the provisions of Chapter III
on “Recognition and Enforcement” extended to maintenance orders, which
is clear from the definition of judgment in Article 13.
53. To complete the picture, I should refer to Article 42 of Brussels II,
headed “Transitional Provisions.” That provision was, mutatis mutandis,
identical with Article 66 of Brussels I to which I refer in more detail later
and which is, with Article 68 of that instrument, central to the appellant’s
argument. Article 42(1) provides that:- “The provisions of this Regulation
shall apply only to legal proceedings instituted, to documents formally
drawn up or registered as authentic instruments and to settlements which
have been approved by a court in the course of proceedings after its entry
into force.” In simple terms, it applied only to divorces granted after the
1st March, 2001. Article 42(2) allowed the Regulation to apply where the
proceedings were issued before the 1st March, 2001, but where judgment
was given after that date.
54. No argument was addressed to this Court on the appeal to suggest
that this Article could be interpreted so as to apply to the judgment of
the Dutch Court of 1994. Brussels II represented a radical step in the
mutual recognition of divorces between Member States. It clearly and
unambiguously applied only to decrees granted after the date of its entry
into force on the 1st March, 2001.
55. Brussels II was repealed and replaced as from the 1st August,2004,
by Brussels II bis (Council Regulation (EC) No 2201/2003). From Article
1, headed “Scope,” it is clear that the Regulation, like Brussels II which
it replaced, applies only to divorce, legal separation and marriage
annulment together with parental responsibility, but not to “maintenance
obligations.”(see Article 1(3)(e)). Article 64 contains “Transitional
Provisions.” Article 64(1), in terms more or less identical with Article
42 of Brussels II provides that the Regulation is to apply only to legal
proceedings instituted and similar matters, “after its date of application in
accordance with Article 72.” The latter Article provides that the Regulation
is to enter into force on the 1st August, 2004.
56. Other parts of Article 64 provide for the application of Brussels II bis
to judgments given in a range of transitional situations. But “judgment”
is defined in Article 2 so as to apply only to matters (divorce etc.) within
the material scope of application of the Regulation. It has been necessary
to refer to Brussels II bis only because of the repeal of Brussels II. Any
judgments covered by Brussels II and rendered after the 1st March, 2001,
would now be enforceable pursuant to Brussels II bis.
57. However, it is beyond doubt that the judgment of the Dutch Court
could never have come within the scope of either Brussels II or II bis,
although both of these were put forward by the appellant in his notice of
motion as grounds on which the Irish courts should decline jurisdiction.
This point was expressly maintained in the grounds of appeal to this court
and, at least in respect of Brussels II, in the written submissions of the
appellant.
58. The appellant’s case, therefore, must depend entirely on the
application of Brussels I. That Regulation continues to exclude the “status
of natural persons” from its scope of application (see Article 1(2)(a)). That
is logical: recognition of judgments in matters of divorce, legal separation
and annulment have been successively regulated by Brussels II and II bis.
The latter regulations, however, exclude maintenance.
59. Article 5(2) of Brussels I, in substitution for the identically numbered
Article of the Brussels Convention lays down, as a rule of special
jurisdiction, that a person, though domiciled in one Member State, may be
sued in another Member State:
“in matters relating to maintenance, in the courts for the place where
the maintenance creditor is domiciled or habitually resident or, if the
matter is ancillary to proceedings concerning the status of a person, in the
court which, according to its own law, has jurisdiction to entertain those
proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties.”
60. Brussels I replaces the Brussels Convention at least for future cases
but I will return to the question of the transitional provisions. Brussels
I contains no provision corresponding with Article 27(4) of the Brussels
Convention. Article 34 provides that:
“A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member
State in which recognition is sought;
2.[not relevant]
3. if it is irreconcilable with a judgment given in a dispute between the
same parties in the Member State in which recognition is sought.”
Paragraph 3 is materially identical with Article 27 (3) of the Brussels
Convention. So far as Article 34(1) is concerned, it could scarcely be
suggested that public policy could any longer be invoked in this State
to refuse recognition of a foreign divorce, where such recognition is so
extensively provided by law.
61. Thus, the central question is whether Brussels I applies. The answer
depends on the transitional provisions.
62. Chapter VI of Brussels I is headed “TRANSITIONAL PROVISIONS.” Its
only Article is numbered 66. It reads:
1. This Regulation shall apply only to legal proceedings instituted and to
documents formally drawn up or registered as authentic instruments after
the entry into force thereof.
2. However, if the proceedings in the Member State of origin were
instituted before the entry into force of this Regulation, judgments given
after that date shall be recognised and enforced in accordance with
Chapter III,
(a) if the proceedings in the Member State of origin were instituted after
the entry into force of the Brussels or the Lugano Convention both in the
Member State or origin and in the Member State addressed;
(b) in all other cases, if jurisdiction was founded upon rules which
accorded with those provided for either in Chapter II or in a convention
concluded between the Member State addressed which was in force when
the proceedings were instituted.
63. The Regulation entered into force as is provided by Article 76 on the
1st March, 2002. Hence, Article 66(1) means that the Regulation applies
“only” to legal proceedings instituted after the 1st March, 2002. This
primary provision is clear and unambiguous. Article 66(2) qualifies that
statement only to the extent that, where the proceedings were issued
before the 1st March, 2002, the Regulation will apply to judgments given
after that date.
64. This is a clear and logical provision. Paragraph (2) tends to reinforce
the primary temporal scope of the article. The Regulation does not apply
to judgments delivered prior to the 1st March, 2002.
65. Counsel for the appellant submitted, however, that Article 66 is
qualified by Article 68, which provides:
1. This Regulation shall, as between the Member States, supersede the
Brussels Convention, except as regards the territories of the Member
States which fall within the territorial scope of that Convention and which
are excluded from this Regulation pursuant to Article 299 of the Treaty.
2. In so far as this Regulation replaces the provisions of the Brussels
Convention between Member States, any reference to the Convention
shall be understood as a reference to this Regulation.
66. Counsel for the appellant put forward the following arguments to
suggest that Brussels I will now apply to cases of judgments, such as
the the judgment of the Dutch Court of 1994, given at a time when the
Brussels Convention applied:
1. Nothing in Article 66 confines or reduces the very wide definition of
“judgments” contained in Article 32 of the Regulation, nor does it limit the
scope of Article 33, to confine it to a particular species of judgment;
2. The word, “supersede” used in Article 68 by reference to the Brussels
Convention means that Brussels I is for the future to apply to cases
covered by the Convention;
3. In the view of one author, the present editor of Dicey and Morris,
Brussels I would apply to judgments such as that of the Dutch Court,
because the Brussels Convention was in force at the time;
4. Regulation 14 of the European Communities (Civil and Commercial
Judgments) Regulations 2002 (S.I. No 52 of 2002) provides that the
Jurisdiction of the Courts and Enforcement of Judgments Act 1998, is to
cease to apply as between the State and Member States;
5. The decision of the Court of Justice in Case C-163/95 Von Horn v.
Cinnamond [1997] ECR I-5451 shows the limited nature and effect of
transitional provisions.
67. The respondent submits that the temporal aspect of the
implementation of the Regulation is a pre-condition to the recognition
of the judgment of the Dutch Court and that the learned trial judge,
McKechnie J., was correct in holding (see paragraph 51 of the judgment):
“…when the divorce decree was granted questions of status were not
included in the Brussels Convention or, indeed, in any Community
Regulation. That situation changed as and from the 1st March, 2001,
when matters relating “to divorce, legal separation or marriage
annulment” (Article 1.1 (a)) became the subject matter of the Brussels 2
Regulation.”
68. There is, in the submission of the respondent, a strong presumption in
Community law against the retroactive effect of a Regulation: Case 98-78
Racke v Hauptzollamt Mainz [1979] ECR 69. Counsel for the respondent
submitted that it could never have been intended that Brussels I or
Brussels II would have retroactive effect, especially as that would deprive
the respondent of her legal entitlement to contest recognition of the
maintenance order of the Dutch Court by virtue of Article 27(4) of the
Brussels Convention.
69. Before addressing these submissions, it is important to note the
context and effect of the interpretation sought by the appellant. This
Court has already decided, in a proceeding pursued by the appellant
by way of appeal, that the judgment of the Dutch Court is not entitled
to recognition in Irish law in accordance with Irish rules of private
international law. Hence, as a matter of Irish law, the judgment of the
Dutch Court is not entitled to recognition. That result is compatible
with Community law. The Brussels Convention was in force between
the Member States at the time of the judgment of the Dutch Court.
That Convention did not apply to “the status or legal capacity of
natural persons.” This point was emphasised by the Court of Justice
in its judgment in Hoffmann, already cited. The consequence of the
interpretation of the transitional provisions of Brussels I advocated by the
appellant would be to reverse retrospectively the effect of the Brussels
Convention and judgments given, including that given by this Court, on
the basis that it applied.
70. It is a general principle of law, widely recognised in different systems
of law, that provisions intended to have a retrospective effect must be
clearly expressed so as to lead to that result. As the Court of Justice
held, at paragraph 20 of its judgment in Racke v Hauptzollamt Mainz,
cited by the respondent, “although in general the principle of legal
certainty precludes a Community measure from taking effect from a
point in time before its publication, it may exceptionally be otherwise
where the purpose to be achieved so demands and where the legitimate
expectations of those concerned are duly respected.”
71. I have already stated that the wording of Article 66 is clear and
unambiguous. It would require something clear to contradict or qualify it.
There is no merit in the appellant’s first suggestion, based on the entirely
general definition of “judgments” in Article 32. The judgments affected by
the Regulation are only those specified by Article 66, those delivered after
the 1st March, 2002. Nor can I see any merit in the argument based on
the word “supersede,” used in Article 68(1). Article 68(2) says that the
Regulation “replaces” the Convention. It is clear that “supersede” has the
same meaning. The same word, “remplace” is used in the two paragraphs
in the French text. Likewise, in Italian, “sostituisce;” and in Spanish:
“sustituirá; sustituye”. Although English is not unique in employing a
different verb (German also uses different ones), the key point is that
no reason has been suggested to support the view that Article 68, by
using the word, “supersede” or for any other reason means that Brussels I
rather than the Brussels Convention should apply to judgments delivered
prior to its entry into force.
72. The appellant cites the views of certain learned authors for the
purpose of casting doubt on the meaning of Articles 66 and 68. The
learned trial judge referred to the conflicting views of two distingished
authors on the question of whether the Convention or the Regulation
applies to existing situations. He cited the13th Edition of Dicey and Morris
on Conflicts of Law. Counsel provided the Court, on the appeal, with the
statement maintained in the 14th edition.
“The Judgments Regulation applies to the recognition of judgments
given on or after March 1st, 2002 by courts in the Member States of the
European Union, excluding Denmark (the Regulation States). But it will
also apply to judgments from the courts of a Regulation state which were
given before March 1st, 2002 if when the proceedings were instituted, the
adjudicating and recognising State were both Contracting States to the
1968 Convention or Lugano Convention”.
73. A contrary statement appears in Briggs and Rees, (both the 3rd
and 4th edition) of Civil Jurisdiction and Judgments (London, 2005). At
paragraph 7.29 of the 4th edition the learned authors state:-
“(b) If the judgment was from the courts of a Member State, and was
given before 1 March 2002, the transitional provisions in Article 66(2) of
the Judgments Regulation cannot apply to it, but the judgment may be
recognised and enforced under one or the other of the Conventions”.
74. As the learned trial judge pointed out, neither author gave any reason
for reaching this conclusion. Not only is no authority cited, but the text of
the Regulation is not even mentioned. These statements are of no value
when set against the plain words of the Regulation. Moreover, these are
not the only texts. Stone, EU Private International Law: Harmonisation of
Laws’ Edward Elgae Publishing Ltd, (Cheltenham 2006) states, at page
221, that Brussels I does not apply at all if judgment was given before
the entry into force of the Regulation and continues: “The recognition
and enforcement of such judgments will remain governed by the Brussels
Convention or the Lugano Convention, if otherwise applicable.”
75. The appellant’s next point is that Regulation 14 of the European
Communities (Civil and Commercial Judgments) Regulations 2002 (S.I.
No 52 of 2002) has the effect that the Brussels Convention will apply to
his case. That provision reads:
“The Act of 1998 shall, except as provided in Article 68, cease to apply as
between the State and member states.”
76. We are dealing here with a provision of Irish law. The Convention
was an international agreement between states and could have no
effect in Irish law, in view of Article 29.6 of the Constitution, save as
determined by the Oireachtas. The Statutory Instrument patently cannot
change the meaning of Article 68 of Brussels I, which is an instrument
of Community law having direct effect in the laws of the Member States.
The Statutory Instrument merely means that, now that Brussels I is in
force, the Act of 1998 which, replacing the Act of 1988, gave force of law
to the Brussels Convention should cease to have effect. It does not and
could not mean that the Act ceased to apply to existing cases. If it did,
it would be in conflict with the scheme of Brussels I. Moreover, section
27(1) of the Interpretation Act 2005, replacing sections 21 and 22 of the
Interpretation Act 1937, limits, inter alia, the effect of the repeal of an
enactment:
Where an enactment is repealed, the repeal does not—
……………………………
(b) affect the previous operation of the enactment or anything duly done
or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or
incurred under the enactment.”
77. The appellant, in his written submissions, cites the case of Von
Horn v Cinnamond for the general proposition, cited at paragraph 33
above, (at paragraph 13 of the judgment) that Brussels II (presumably
intending to refer to the Brussels Convention) is designed “…to facilitate
reciprocal recognition and enforcement of judgments of courts and
tribunals and to strengthen the legal protection of persons established
in the Community.” The learned trial judge considered that judgment
extensively in his judgment. Von Horn concerned the interpretation of the
transitional provisions of the San Sebastian Convention on the accession
of Spain and Portugal to membership of the European Community.
Proceedings had been issued by one party to a commercial dispute in
Portugal prior to the date of accession; the other party commenced an
action in England after that date. Neither case had reached judgment at
the time of the reference of questions by the House of Lords. Article 29
of the San Sebastian Convention provided, inter alia, that the Brussels
Convention was to apply where proceedings had been issued in the
first state (Portugal) prior to accession, if jurisdiction had been founded
upon rules which accorded with the Brussels Convention. The Court of
Justice found a solution involving the court of the second state applying
the lis pendens rules (Article 21) provisionally until the jurisdiction of
the first state was established. Clearly, the aim was to avoid the risk of
inconsistent judgments. The appellant wishes to apply that reasoning
to the transitional provisions of Brussels I. In my view, the appellant’s
submission begs the question whether Brussels I applies. In Von Horn, it
was clear that the Brussels Convention applied between Portugal and the
United Kingdom from the date of entry into force of the accession treaty
and, thus at the time of issue of the English proceedings. The question
was whether it applied to the Portuguese proceedings issued prior to that
date. The question, in the present case, is whether Brussels I applies at
all. Von Horn cannot be used to establish a matter which was not in issue
in that case. There is no analogy between that case and the present.
78. This conclusion is not affected by the decision of Andrew Smith J in
Tavoulareas v Tsavliris and others, [2006] 1 All E.R. (Comm) 109, cited by
the appellant. In that case, proceedings had been issued in Greece before
the entry into force of Brussels I, but judgment was not given until after
that date. The opposing party issued proceedings in England after the 1st
March, 2002. That is a situation precisely covered by Article 66(2) of the
Regulation. The dispute resolved by Andrew Smith J concerned Article 30
of the Regulation, which concerns the date when a court is deemed to
be seised. The party supporting the later English proceedings contended
that the Greek proceedings had never been served and that, by virtue of
Article 30, the Greek court was not seised. The decision does not support
the proposition that the Brussels Convention ceased from the 1st March,
2002, to apply to existing situations. The report of this decision contains
no suggestion that the Greek proceedings would not, if properly served,
have come within the scope of the Regulation.
79. In considering whether there is any reason to doubt the plain and
obvious intent of the temporal provisions of Article 66 of Brussels I, it
is useful to examine the recitals to the Regulation. Recital 19 refers to
continuity between the Brussels Convention and the Regulation as the
objective of the transitional provisions.
80. To explain the context, it should be noted that the procedure for
making references for preliminary ruling on the interpretation of Brussels
I (indeed any of the three jurisdiction regulations) to the Court of Justice
is, unlike the case of the Brussels Convention, found in the Treaty itself.
The Convention, on the other hand, needed its own special reference
procedure, because international agreements of that kind were not
covered by Article 234 (then Article 177) of the Treaty. The Brussels
Regulations, however, were adopted pursuant to Part IV of the EC Treaty
and are subject to the modified reference procedure set out in Article 68
of that Part.
81. In this light, recital 19 is revealing. It provides:
“Continuity between the Brussels Convention and this Regulation should
be ensured, and transitional provisions should be laid down to that end.
The same need for continuity applies as regards the interpretation of the
Brussels Convention by the Court of Justice of the European Communities
and the 1971 Protocol should remain applicable also to cases already
pending when this Regulation enters into force.”
82. The second sentence of that recital reveals that cases pending at the
time of entry into force of the Regulation (i.e., cases under the Brussels
Convention) are to be dealt with, not pursuant to the reference procedure
laid down in Article 68 of the EC Treaty for Regulation cases but should
continue to be handled pursuant to the Protocol applicable to them, which
necessarily implies that they continue to be covered by the Convention.
83. Acccording to the appellant the effect of Article 68 is that Brussels I
applied after the 1st March, 2002, to all cases covered up to that date by
the Brussels Convention, a proposition that flies in the face, not only of
Article 66, but also of recital 19 and the fact that the Court of Justice has
accepted and ruled on many references concerning the Convention after
that date. If the appellant’s submission were correct, the Court of Justice
would not have had jurisdiction to consider cases under the Brussels
Convention after 1st March 2002.
84. I am satisfied that it is clear beyond argument that neither Brussels I,
Brussels II or Brussels II bis apply to the judgment of the Dutch Court.
Sincere Co-operation, Supremacy and Effectiveness
85. The appellant has submitted, in his written submissions, a broad
series of propositions concerning the above-mentioned matters, all
expressed at a high level of generality. The only ones that have any even
remote bearing on his case are those which refer to Articles 61 and 65 of
the EC Treaty.
86. Article 61 provides that:-
“In order to establish progressively an area of freedom, security and
justice, the Council shall adopt:
….
(c) measures in the field of judicial cooperation in civil matters as
provided for in Article 65.
87. Article 65 provides that:-
“Measures in the field of judicial cooperation in civil matters having cross-
border implications, to be taken in accordance with Article 67 and in so
far as necessary for the proper functioning of the internal market, shall
include:-
(a) Improving and simplifying:
…
- the recognition and enforcement of decisions in civil and commercial
cases, including decisions in extrajudicial cases;”
88. These are purely permissive provisions. They empower the
Community institutions to adopt measures. It is the measures actually
adopted that affect the rights of individuals. Neither Article 61 nor Article
65 provides any basis whatever for the appellant’s contention that the
Irish courts should decline jurisdiction to hear his wife’s proceedings in
respect of judicial separation, divorce or ancillary matters.
Free movement of persons and citizenship of the Union.
(...)
93. However, the proposition should be addressed, as if it were
meritorious, even if highly theoretical.
94. Even on that assumption, the one most favourable to the appellant,
one returns to the legal situation which pertained at the time of the
judgment of the Dutch Court. The Brussels Convention was the only
legal basis for recognition of judgments of courts of other contracting
states, but, as I have already shown, the Convention did not extend
to “the status or legal capacity of natural persons.” That remained the
situation until the entry into force of Brussels II. Thus, the appellant is
necessarily confined to the Brussels Convention. If it were not for the
provisions, authorising non-recognition, of Article 27 of that Convention
the maintenance order would have to be recognised here. For the reasons
already given, he cannot succeed on that ground. Thus it is the provisions
of the Brussels Convention itself that represent the obstacle of which the
appellant complains.
95. Finally and decisively, the argument made under this heading is
related essentially to the question of recognition of the judgment of the
Dutch Court, upon which this Court ruled in its judgment of Novmber
2003. When asked why this argument was not then advanced, counsel
said that it was a matter which the Court should itself have raised. I do
not think so. It is true that the lis pendens rules both of the Brussels
Convention (Article 21) and of Brussels I (Article 27) require a court
secondly seised to decline jurisdiction “of its own motion” where the
same subject-matter is the subject between the same parties in another
Member State. But the court must be made aware of the fact, if it is so
to act. It is highly far-fetched to suggest that this Court should, in 2003,
have thought of a novel argument which has occurred to the appellant
only on this appeal.
96. It is a fact that this Court has already conclusively decided that the
judgment of the Dutch Court is not entitled to recognition in this State.
That remains the case. The judgment of this Court is final and conclusive
under the Constitution.
97. I would reject all the appellant’s ground of appeal.
Should there be a reference to the Court of Justice?
98. Article 234 of the EC Treaty obliges this Court to refer any question of
interpretation of provisions of Community law, defined in that Article, if a
ruling on that “question is necessary to enable it to give judgment.”
99. The appellant has raised a number of questions of Community law
upon which I have expressed very clear opinions, all adverse to the
appellant.
100. The appellant relies on Case 283/81, CILFIT v. Ministry of Health
[1982] ECR 3415. This Court, though obliged prima facie to make a
reference, because
questions of interpretation are involved, may decide not to do so if the
point is clear beyond argument. (acte clair). There are, of course, many
and extensive qualifications in the CILFIT judgment. These are well
known. They relate in particular to the fact that Community legislation is
drafted in several languages and that it has its own peculiar terminology.
101. Nonetheless, the judgment recognizes that “the correct application
of Community law may be so obvious as to leave no scope for any
reasonable doubt………”(paragraph 16). It also accepts that the Court of
Justice may already have dealt with the point of law in question, “even
though the questions at issue are not strictly identical.” (paragraph 14).
102. The judgment in CILFIT stipulates that, even in those cases, where
the court of a Member State is not obliged to make a reference, it retains,
nonetheless, a discretion to do so. I consider, therefore, whether the
Court is obliged to make a reference and, separately, whether it should, in
its discretion, do so in any event.
103. I have come to very clear conclusions to the effect that the
appellant’s arguments are unfounded and, in many respects, without
merit.
104. Insofar as the appellant’s case might have been founded on
the Brussels Convention, I believe that Article 27 of the Convention,
as interpreted by the Court of Justice in Hoffmann, rendered the
maintenance aspect of the Dutch Court judgment unenforceable in
Ireland. Paragraph 14 of CILFIT shows that the Court is not obliged to
refer where a point has already been clearly decided by the Court of
Justice. In any event, I believe that Article 27(4) of the Convention clearly
deprived the Dutch maintenance order of the right to recognition.
105. The principal basis of the appellant’s case was Brussels I. I believe
that the transitional provisions of that instrument are clear beyond doubt
or argument and that the appellant’s arguments to the contrary are
tenuous at best. Provisions laying down dates, times or numbers are
generally more likely to justify the description acte clair.
106. The arguments based on sincere co-operation, supremacy and
effectiveness postulate direct effect of a wide range of Treaty provisions,
none of them even remotely related to the appellant’s case. Articles 61
and 65 provide power to take action. They are incapable of having effect
on their own and the appellant has produced no authority to show that
they can.
107. The argument based on free movement is, firstly, unexplained
and, secondly, in conflict with the principles underlying the Brussels
Convention. Most importantly, this argument questions the final and
conclusive decision of this Court delivered between the same parties in
November 2003.
108. For these reasons, I do not believe this Court is obliged by Article
234 of the Treaty as interpreted by the Court of Justice to refer questions
to that Court.
109. In addition, I do not believe this Court should, in the exercise of its
discretion, make a reference. I am principally influenced by the propensity
of the appellant to use legal procedures so as to delay and the attendant
injustice to the respondent. In his first affidavit in November, 2000 he
raised one legal point only, namely the recognition of his Dutch divorce.
He appealed his unsuccessful pursuit of that point to this Court. Only
then did he raise a number of other arguments to resist the jurisdiction
of the Irish courts. He has appealed against the judgment of McKechnie
J to this Court. It is now more than eight years since the issue of the
Special Summons. The appellant has been able to resist complying with
his normal obligations to furnish information as to his means, by agreeing
to pay maintenance to his spouse on a provisional basis.
110. It will be more than eight years from its date of issue before the
respondent is able to get to hearing with her claim. I would not wish to
delay her access to justice any further by reason of a reference, even in
circumstances where I believe that the new urgent procedures before
the Court of Justice might enable the reference of some questions to be
concluded within a period of months.
111. I would not refer any questions to the Court of Justice. I would
dismiss the appeal and affirm the order of the High Court.