A v B.
Date: 2015-10-06
27. It should be noted at the outset that Article 19 of Regulation No 2201/2003 is expressed in very similar terms to those used in Article 27 of Regulation No 44/2001, which replaced Article 21 of the Brussels Convention, and establishes a mechanism for dealing with cases of lis pendens  that is equivalent to that provided for by Article 27 of Regulation No 44/2001 and Article 21 of the Brussels Convention. Account must therefore be taken of the considerations of the Court in relation to those last two articles.
28. It is important to note in that regard that, as in the case of Article 27 of Regulation No 44/2001 and Article 21 of the Brussels Convention, the concept of ‘established jurisdiction’ in Article 19 of Regulation No 2201/2003 must be interpreted independently, by reference to the scheme and purpose of the act that contains it (see, to that effect, judgments in Shearson Lehman Hutton , C‑89/91, EU:C:1993:15, paragraph 13, and Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 32).
29. As regards the purpose of the rules of lis pendens in Article 19 of Regulation No 2201/2003, it must be noted that those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom (see judgment in Purrucker , C‑296/10, EU:C:2010:665, paragraph 64). For that purpose, the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens  (see, by analogy, with regard to Regulation No 44/2001, judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 40).
30. As is clear from the words ‘court first seised’ and ‘court second seised’ in Article 19(1) and (3) of Regulation No 2201/2003, that mechanism is based on the chronological order in which the courts are seised.
33. In order then to determine whether a situation of lis pendens exists, it is apparent from the wording of Article 19(1) of Regulation No 2201/2003 that, contrary to the rules in Article 27(1) of Regulation No 44/2001 applicable to civil and commercial matters, in matrimonial matters applications brought before the courts of different Member States are not required to have the same cause of action. As the Advocate General noted in point 76 of his Opinion, 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 Regulation No 2201/2003, 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, as in the main case, of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce.
34. In such circumstances and where the parties are the same, in accordance with Article 19(1) of Regulation No 2201/2003, the court second seised is of its own motion to stay its proceedings until such time as the jurisdiction of the court first seised is established. It must be held that the Court’s interpretation of Article 27 of Regulation No 44/2001 applies equally to Article 19(1) of Regulation No 2201/2003. Thus, in order for the jurisdiction of the court first seised to be established within the meaning of Article 19(1) of that regulation, 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. (see, by analogy, judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 44).