1. 

The present case gives the Court its first opportunity to examine, in very specific circumstances linked to the duality of the procedure for ‘undoing’ a marriage in France, the rules on lis pendens laid down by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. ( 2 )

2. 

The questions put by the referring court, which considers this to be a situation in which there is a conflict of jurisdiction attributable entirely to the abusive manoeuvring of the respondent in the main proceedings, a situation which it regards as pitiful, essentially relate to the concept of ‘jurisdiction’ being ‘established’ within the meaning of Article 19 of Regulation No 2201/2003. However, while the dispute in the main proceedings does indeed raise an issue of lis pendens within the meaning of Article 19, it is the interpretation of the concept of the ‘court first seised’ for the purposes of Articles 16 and 19 of Regulation No 2201/2003 that should, as I shall show in the course of my reasoning, enable the Court to provide an answer to the referring court’s queries.

3.

Article 16 of Regulation No 2201/2003 provides:

‘1.   A court shall be deemed to be seised:

4.

Article 19(1) and (3) of Regulation No 2201/2003 states:

‘1.   Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

…

3.   Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.’

5.

Although this request for a preliminary ruling emanates from a court of the United Kingdom, it does not contain any information about the United Kingdom law applicable to the main proceedings. It does, however, mention a number of provisions of the Code of Civil Procedure (code de procédure civile), which must be set out.

6.

Article 1076 of the Code of Civil Procedure provides:

‘The spouse who presents a divorce petition may, whatever the situation, and even during appeal proceedings, substitute a petition for judicial separation.

The converse shall not apply.’

7.

Article 1111 of the Code of Civil Procedure provides:

‘Where he establishes, after having heard each spouse on the principle of the breakdown of the marriage, that the petitioner is maintaining his petition, the judge shall make an order by which he may either refer the parties, in accordance with Article 252-2 of the Civil Code, for a further conciliation attempt, or immediately authorise the spouses to institute proceedings for a decree of divorce.

In either case, he may order all or part of such interim measures as are provided for under Articles 254 to 257 of the Civil Code.

When granting authorisation to institute proceedings for a decree of divorce, the judge shall recite in his order the time-limits laid down under Article 1113 of this Code.’

8.

Article 1113 of the Code of Civil Procedure is worded as follows:

‘Within three months from the pronouncement of the order only the spouse who has presented the initial requête (request) may file an assignation (petition for a decree) for divorce.

In the event of reconciliation of the spouses, or if the proceedings for a decree of divorce have not been instituted within 30 months from the pronouncement of the order, all its provisions shall be null and void, including the authorisation to institute proceedings for a decree of divorce.’

9.

Article 1129 of the Code of Civil Procedure states:

‘The procedure in relation to judicial separation shall follow the rules laid down for the procedure in relation to divorce.’

10.

Ms A ( 3 ) and Mr B, ( 4 ) both of whom are French nationals, were married in France on 27 February 1997, having entered into a marriage contract under French law under the regime of séparation des biens (principle of separate property during marriage). The couple and their two children, twins born on 27 July 1999, moved to the United Kingdom in 2000, where their third child was born on 16 July 2001.

11.

In June 2010, the respondent in the main proceedings moved out of the matrimonial home and the couple has, de facto, been living separately since then.

12.

On 30 March 2011, the respondent in the main proceedings lodged a requête for judicial separation with the tribunal de grande instance (Regional Court) of Nanterre (France).

13.

The conciliation hearing, which was held on 5 September and 8 November 2011, was ultimately unsuccessful.

14.

Accordingly, on 15 December 2011, the tribunal de grande instance of Nanterre made a non-conciliation order (No RG 11/04305) declaring the breakdown of the marriage and ruling on the measures required in order to settle the family situation pending final judgment. The tribunal de grande instance of Nanterre declared, first of all, that it had jurisdiction under Article 5(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 5 ) to rule on interim measures specific to judicial separation proceedings and on the maintenance obligation under the duty of support, and declared French law to be applicable. By contrast, it declared that it did not have jurisdiction to rule on measures in relation to the children, which were within the purview of the courts of the United Kingdom. Furthermore, it authorised the spouses to institute proceedings for a decree of judicial separation. It also granted the petitioner in the main proceedings the right to stay in the family home free of charge under the duty of support, and awarded her a maintenance allowance of EUR 5000 per month, the respondent in the main proceedings being provisionally required to make mortgage and other loan repayments. Lastly, it appointed a notary to draw up a report on the couple’s assets.

15.

On 22 November 2012, the cour d’appel de Versailles (Court of Appeal of Versailles) (France), seised by the respondent in the main proceedings, delivered a judgment (No RG 12/01345) upholding in its entirety the non-conciliation order of the tribunal de grande instance of Nanterre.

16.

On 17 December 2012, the respondent in the main proceedings filed a requête for divorce which was, however, dismissed, since the judicial separation proceedings which he had brought on 30 March 2011 and had not withdrawn were still pending.

17.

On 17 June 2014, at 8.20 a.m., that is early on the first day following expiry of the 30-month period within which proceedings for a decree of judicial separation must be instituted if they are not to lapse, the respondent in the main proceedings filed a requête for divorce.

18.

In parallel with the judicial separation proceedings brought in France by the respondent in the main proceedings, the petitioner in the main proceedings applied, on 19 May 2011, to the Child Support Agency for child support for the children in her care.

19.

On 24 May 2011, she also filed a divorce petition and made a separate application for maintenance.

20.

On 7 November 2012, the High Court of Justice, Family Division, dismissed the divorce petition of the petitioner in the main proceedings, by consent, pursuant to Article 19 of Regulation No 2201/2003.

21.

On 6 June 2014, the petitioner in the main proceedings applied ex parte to the referring court with a view to obtaining a proleptic decree or declaration that her divorce petition, when issued, would only take effect at one minute past midnight on 17 June 2014, that is to say, at the moment when the non-conciliation order made by the family law judge in the context of the judicial separation proceedings brought in France by the respondent in the main proceedings would lapse. That application, judged to be too innovative, was, however, dismissed.

22.

On 13 June 2014, the petitioner in the main proceedings filed a second divorce petition with the referring court.

23.

On 9 October 2014, invoking Article 19 of Regulation No 2201/2003, the respondent in the main proceedings applied for the divorce petition filed by the petitioner in the main proceedings on 13 June 2014 to be dismissed as inadmissible and for the case to be struck out.

24.

In that context and in those circumstances, the High Court of Justice, Family Division, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

25.

In its order for reference, the referring court states that situations such as that in the main proceedings, in which there are several parallel proceedings in two Member States, cannot have been in the contemplation of the authors of Regulation No 2201/2003, their objective having been to ensure that jurisdiction is swiftly established, that cases are swiftly heard and that irreconcilable judgments are avoided.

26.

The referring court emphasises that the respondent in the main proceedings is responsible, as a result of his manoeuvres, for the confusion that has reigned in the main case for four years. His desire to prevent the petitioner in the main proceedings from filing a divorce petition in the courts of the United Kingdom is demonstrated in several ways. It refers, in that regard, to the fact that he filed a divorce petition in France even though the judicial separation proceedings were still pending, and to the fact that he filed his divorce petition in France at the earliest possible opportunity, at a time when, given the time difference, it was not possible for the petitioner in the main proceedings to file such a petition in the United Kingdom.

27.

The referring court also notes that, after the judgment of the cour d’appel of 22 November 2012 upholding the non-conciliation order, the respondent in the main proceedings took no steps whatsoever to progress the judicial separation proceedings in France, being content to wait for them to lapse before filing his divorce petition. In those circumstances, the referring court is doubtful whether the jurisdiction of the French court can be considered to be ‘established’ within the meaning of Article 19 of Regulation No 2201/2003. It refers in that respect to the argument of the petitioner in the main proceedings that the simple filing of proceedings in a court cannot be sufficient. The applicant should be under an obligation to progress the proceedings with due diligence and expedition, otherwise the parties involved in divorce proceedings would have the ability to file an ‘Italian torpedo’, and prevent the expeditious resolution of disputes.

28.

The referring court states, however, that such an interpretation involves a departure not only from the wording of Article 19 of Regulation No 2201/2003, but also from the case-law relating to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, ( 6 ) and in particular the judgment in Gantner Electronic, ( 7 ) in which the Court of Justice held that ‘lis pendens exists from the moment when two courts of different Contracting States are definitively seised of an action, that is to say, before the defendants have been able to put forward their arguments’.

29.

The referring court explains, lastly, that, according to the information concerning French law in its file, for a period of three months, an assignation for a decree of judicial separation can be filed only by the applicant.

30.

Although the respondent in the main proceedings stated that he had not filed an assignation for judicial separation from the petitioner in the main proceedings because he wished to obtain a divorce without prolonging the procedural timetable, he did not provide any explanation for his failure to withdraw his requête for judicial separation, which establishes his intention to prevent the petitioner in the main proceedings, for as long as possible, from seeking a divorce in the United Kingdom in order to enable all matters in dispute to be determined by one court at the earliest opportunity.

31.

The referring court also requested the Court of Justice to apply an expedited procedure to the present case pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice.

32.

By order of 13 January 2015, the President of the Court of Justice refused that request. He did, however, decide that the case would be given priority over others, pursuant to Article 53(3) of the Rules of Procedure. Furthermore, in accordance with Article 95(1) of the Rules of Procedure, the Court maintained the anonymity granted by the referring court.

33.

On 18 May 2015, the respondent in the main proceedings informed the Court of Justice that he recognised and accepted the jurisdiction of the referring court, without, however, apparently informing either the referring court or the French court of this. The Court of Justice communicated that information to the referring court and to the petitioner in the main proceedings by letter of 21 May 2015.

34.

The petitioner in the main proceedings, the United Kingdom Government and the European Commission have submitted written observations. In addition, the petitioner in the main proceedings and the Commission were heard in a hearing in open court on 1 June 2015.

35.

The petitioner in the main proceedings declares that she endorses and repeats the conclusions reached by the referring court. Like the referring court, she deplores, first of all, the anomalous position of a court having jurisdiction in respect of divorce and matrimonial finance but being unable to refer a case to a better placed court under the forum non conveniens exception, unlike the position in cases concerning parental responsibility, ( 8 ) or now provided for, in civil and commercial cases, by Regulation No 1215/2012. ( 9 )

36.

She also condemns the scope for abuse — an abuse which is clear in the main proceedings — that arises from the application of the lis pendens rule contained in Article 19 of Regulation No 2201/2003, where the party who has brought the proceedings is under no duty to take any steps to progress them. She regrets, lastly, the aggravating and discriminating effect of the time zones within the European Union, since parties in the easternmost areas will always have a time advantage, in absolute terms, over those in more westerly areas as regards being the first to issue proceedings.

37.

The petitioner in the main proceedings also submits, in essence, that Article 19 of Regulation No 2201/2003 cannot, if the requirements of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, are not to be disregarded, be interpreted as meaning that a court’s jurisdiction is established where it is seised of judicial proceedings which have expired due to the inactivity of the party who issued them. While that regulation does indeed allow a choice of forum in divorce jurisdiction, a party cannot be allowed to choose a forum which is unfavourable to the other party and then delay or avoid altogether a resolution of the proceedings which the first party has himself commenced.

38.

The petitioner in the main proceedings states in that regard that either she is compelled to litigate abroad, in a forum in which neither party is resident and which would be disadvantageous to her in terms of likely result, or she is denied any remedy for so long as the respondent can prolong the proceedings brought in France and prevent any other proceedings from being commenced.

39.

The petitioner in the main proceedings goes on to state that the overall purpose and policy of Regulation No 2201/2003 are such that the priority of jurisdiction afforded to the court first seised presupposes that the party who brought the proceedings is required to progress them with due diligence and expedition to a resolution of the dispute. She refers, in that regard, by analogy, to Article 16(1) of Regulation No 2201/2003, Article 9 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, ( 10 ) and Article 14 of Regulation (EU) No 650/2012 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. ( 11 )

40.

Lastly, the petitioner in the main proceedings maintains that it accords with common sense and natural justice, and also with French case-law and the case-law of the Court of Justice, if jurisdiction is considered to be ‘established’ for the purposes of Article 19 of Regulation No 2201/2003 only where the applicant proceeds in good faith to progress the litigation to a resolution. The Cour de cassation (Court of Cassation) (France) thus held in a judgment of 26 June 2013 ( 12 ) that the status of the requête as the beginning of the proceedings is valid only if it is followed by the filing of the assignation. In the main proceedings, the fact that the respondent in the main proceedings had not filed an assignation against the petitioner in the main proceedings meant that the bringing of the proceedings in France had ceased to have effect in relation to establishing jurisdiction under Article 19 of Regulation No 2201/2003. Furthermore, the Court of Justice had confirmed that, in certain circumstances, where a court second seised of an application in matters of parental responsibility lacks any evidence for the purpose of assessing lis pendens notwithstanding the efforts made to obtain information by enquiry of the party which has claimed it, that court may, after the expiry of a reasonable period in which answers to the enquiries made are awaited, proceed with consideration of the action. ( 13 )

41.

At the hearing, the petitioner in the main proceedings stated, in response to the written observations of the United Kingdom Government, that the questions referred for a preliminary ruling must be declared admissible. In her submission, it is the case that, in the United Kingdom, lis pendens must be assessed as at the date on which the court is seised rather than as at the date on which it delivers its ruling. She infers from this that it is particularly important that the Court of Justice rule on the questions and hold that the date to be taken into account is that on which the referring court was seised, in this case on 13 June 2014, and that the French court, seised of the divorce petition of the respondent in the main proceedings on 17 June 2014, was therefore second seised.

42.

She also argued that the obligation for the court second seised to ‘decline jurisdiction’ within the meaning of Article 19(3) of Regulation No 2201/2003 did not mean that it should declare that it has no jurisdiction, since the declining of jurisdiction has only suspensive effect and permits the resumption of the second set of proceedings if the proceedings first brought expire, as is the case in the main proceedings.

43.

The United Kingdom Government submits, principally, that it is not necessary for the Court to rule on the questions referred for a preliminary ruling.

44.

It argues that, in accordance with Article 1113 of the Code of Civil Procedure, the judicial separation proceedings brought before the French court by the respondent in the main proceedings expired early on 17 June 2014, and therefore the referring court, seised of a divorce petition by the petitioner in the main proceedings on 13 June 2014, must be regarded as the ‘court first seised’ rather than the ‘court second seised’, the issuing, by the respondent in the main proceedings, of divorce proceedings in France at 8.20 a.m. on 17 June 2014 changing nothing in that respect.

45.

That position is, according to the United Kingdom Government, consistent with the purpose of the lis pendens rules established ( 14 ) by Article 19 of Regulation No 2201/2003, which is to obviate the risk of irreconcilable judgments in parallel proceedings in different jurisdictions, and with the case-law of the Court of Justice.

46.

The United Kingdom Government nevertheless goes on to consider the two questions referred.

47.

The United Kingdom Government contends first of all that the first question, which concerns the question whether the jurisdiction of the French court is established within the meaning of Article 19 of Regulation No 2201/2003, arises only if the referring court must be considered to be the ‘court second seised’. It observes that the Court of Justice has held that a purposive interpretation should be applied to that provision, ( 15 ) as also to the analogous provisions of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ( 16 ) and Regulation No 44/2001, ( 17 ) having regard to the objectives pursued by Regulation No 2201/2003, which are to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom.

48.

However, while the jurisdiction of the French court had, at one time, been established, that was no longer the case, since the judicial separation proceedings brought in France had expired. The referring court should therefore hold that there is in fact no longer lis pendens. That solution would ensure that Article 19 of Regulation No 2201/2003 achieves its purpose of preventing irreconcilable judgments and thus of securing legal certainty, while requiring applicants to take steps to progress proceedings in circumstances where these must be conducted within certain time-limits and will expire by effluxion of time.

49.

The United Kingdom Government proposes that the Court answer the second question by ruling, in essence, that Article 19 of Regulation No 2201/2003 must be interpreted as meaning that the term ‘established’ requires the party bringing the first proceedings, such as the judicial separation proceedings brought by the respondent in the main proceedings in this case, to take steps to progress the first proceedings with due diligence to a resolution.

50.

It submits, in that regard, that the purpose of the rules of lis pendens in Regulation No 2201/2003, which is to prevent parallel proceedings in different jurisdictions and the risk of irreconcilable judgments, must be seen as facilitating and not obstructing the progress of disputes to resolution, which accordingly means that the parties must take steps to progress proceedings.

51.

Consequently, the question whether an applicant has acted with due diligence to progress the proceedings which he has brought, or has simply let them expire by effluxion of time, is a factor relevant to the determination whether the jurisdiction of the court he has seised is established within the meaning of Article 19 of Regulation No 2201/2003. Any other outcome could lead to a stalemate by precluding the resolution of the dispute and denying the defendant his right to a fair and public hearing within a reasonable time, as provided for by Article 47 of the Charter of Fundamental Rights of the European Union.

52.

The Commission begins by noting that the questions put by the referring court are based on two assumptions, one of which is correct whereas the other is not.

53.

It notes, first, that the referring court is proceeding on the basis that, under Article 19 of Regulation No 2201/2003, judicial separation proceedings brought in France bar divorce proceedings in another Member State, which in the Commission’s view is correct.

54.

It observes, however, that the wording of that provision does not necessarily compel that conclusion. Article 19 could, first of all, be interpreted as meaning that the bringing of judicial separation proceedings bars only other judicial separation proceedings, but not divorce proceedings. It could, on the other hand, also be interpreted as barring all types of parallel proceedings in matrimonial matters.

55.

The Commission is nevertheless of the view that it is the second interpretation that is correct, since Article 19 of Regulation No 2201/2003 does not require that the competing proceedings involve the same cause of action but merely the same parties. Furthermore, the purpose of the lis pendens rule is to prevent irreconcilable judgments being given by courts in different Member States, which would impede their subsequent recognition, in accordance with Article 22(d) of Regulation No 2201/2003. Lastly, that solution is a fortiori required in cases where there is a close relationship between proceedings for judicial separation and divorce.

56.

It states, secondly, that the referring court is proceeding on the basis that the question whether there is lis pendens must be assessed as at the date on which divorce proceedings were brought before it, in this case on 13 June 2014, and not as at the date on which it considered whether it was required to stay proceedings, in this case on 9 October 2014, which in the Commission’s view is not correct.

57.

The objective of the lis pendens rule is to avert the bringing of competing matrimonial proceedings and to remove the risk of irreconcilable judgments being given in different Member States, by applying the strict principle prior temporis. Nevertheless, that rule does not prevent the parties from seising courts in different Member States; it merely requires the court second seised to stay its proceedings and, where appropriate, to decline jurisdiction.

58.

The Commission is of the view that, in a situation such as that in the main proceedings, where proceedings are pending in a court of one Member State when a court of a second Member State is seised, but the proceedings brought in the first Member State have lapsed by the time an application is made to strike out the proceedings in the second Member State, the relevant date for the purpose of assessing lis pendens is the date on which the court seised in the second Member State rules on whether it must stay proceedings and, if appropriate, decline jurisdiction pursuant to Article 19 of Regulation No 2201/2003. That interpretation is confirmed both by the wording of Article 19 of Regulation No 2201/2003 and by the general system and objective of that regulation.

59.

In the present case, at the time when the referring court ruled on whether it was required to stay the divorce proceedings issued by the petitioner in the main proceedings, that is on 9 October 2014, there were no longer any parallel proceedings in France, the judicial separation proceedings having lapsed on 16 June 2014, nor, therefore, was there any risk of irreconcilable judgments. The fact that the respondent in the main proceedings issued divorce proceedings in France early on 17 June 2014 is irrelevant since there were, on that date, proceedings pending in the United Kingdom and, therefore, a situation of lis pendens.

60.

In those circumstances, the Commission concludes that it is not necessary to answer the questions put by the referring court, and proposes an answer only in the alternative, examining point (a) of the first question and the second question together.

61.

It states, first of all, that the meaning of ‘established jurisdiction’ must, logically, relate to the determination by the relevant court of whether it has jurisdiction under Regulation No 2201/2003 and whether, by virtue of its own national procedural law, it has been properly seised.

62.

Taking the view that the case-law relating to Article 27(2) of Regulation No 44/2001 is relevant to the interpretation of Article 19 of Regulation No 2201/2003, it recalls that, in its judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances, ( 18 ) the Court ruled that ‘the jurisdiction of the court first seised must be regarded as being established … if that court has not declined jurisdiction of its own motion and none of the parties has contested its jurisdiction prior to or up to the time at which a position is adopted which is regarded in national procedural law as being the first defence on the substance submitted before that court’.

63.

In the main proceedings, there can be no doubt that the jurisdiction of the French court which made the non-conciliation order on 15 December 2011 was established, within the meaning of that case-law, at the outset of the proceedings. First, that court authorised the filing of an assignation and, secondly, the petitioner in the main proceedings was involved in the procedure, since she could apply for interim measures and did not object to the international jurisdiction of the French court either at first instance or at the appeal stage.

64.

Next, in the Commission’s view, Article 19 of Regulation No 2201/2003 does not include any obligation on the part of the applicant in proceedings brought before the court first seised to progress those proceedings with due diligence and expedition. The applicant is free to proceed in whichever way he considers most appropriate, subject to compliance with the relevant rules of national legislation, and it is the responsibility of the court seised to ensure that these are applied and to impose sanctions, where appropriate, for any vexatious or abusive manoeuvres.

65.

It would, in any event, be impossible for a court of one Member State to determine whether the lack of progress in proceedings brought before a court of another Member State was indicative of abuse. The Commission observes in that regard that the petitioner in the main proceedings could have filed an assignation herself against the respondent in the main proceedings, not only for judicial separation but also for divorce, as is evident from an opinion of the Cour de cassation of 10 February 2014.

66.

It concludes that Article 19 of Regulation No 2201/2003 must be interpreted as meaning that the jurisdiction of a court first seised does not cease to be established because the applicant in the proceedings brought before that court fails to take steps to progress those proceedings with all requisite diligence and expedition to a resolution of the dispute.

67.

It is appropriate to begin by presenting — with all the reservations that such an exercise entails — the specific features of French law relating to judicial separation and divorce proceedings, in order accurately to gauge the particular circumstances of the main proceedings and the singularity of the questions referred for a preliminary ruling.

68.

As Mr Bernard de la Gâtinais, First Advocate General at the Cour de cassation explains in his opinion underlying the opinion of the Cour de cassation of 10 February 2014 ( 19 ) cited by the referring court, judicial separation has for a long time been regarded as ‘the Catholics’ divorce’, in that its ‘principal effect is to establish in law the separation of the spouses and to settle the human and material consequences thereof, while allowing the matrimonial relationship to subsist’. Consequently, while, by virtue of its possible effects, divorce in itself entails judicial separation, judicial separation does not incorporate the key element of divorce, which is the irretrievable breakdown of the marriage. That is the simple reason for the principle that a divorce petition can be transformed into a petition for judicial separation but not vice versa, a principle enshrined in Article 1076 of the Code of Civil Procedure.

69.

The latter article thus provides, as noted by the referring court, that a petitioner for judicial separation cannot convert that petition into a divorce petition ( 20 ) and is in some way a prisoner of his own procedure. Thus, where the court seised of a petition for judicial separation has made a non-conciliation order authorising the spouses to institute proceedings for a decree of judicial separation, as in the main case, the petitioner has only two options. He can first of all decide to obtain a judicial separation and thus bring the proceedings to a conclusion by filing an assignation against the respondent for a decree of judicial separation, which he alone is entitled to do in the first three months following the non-conciliation order, in accordance with Article 1113 of the Code of Civil Procedure. He can, however, also abandon judicial separation for one reason or another, notably in favour of divorce, by withdrawing his requête for judicial separation, the admissibility of a divorce petition then being subject to the condition that that withdrawal is accepted and is final. ( 21 )

70.

By contrast, once the three-month period referred to in Article 1113 of the Code of Civil Procedure has ended, the respondent in judicial separation proceedings can not only make up for the petitioner’s omission by filing an assignation for a decree of judicial separation himself, but he can also file for divorce from the petitioner, his cross-petition being admissible in the light of Articles 1076, 1111 and 1113 of the Code of Civil Procedure. ( 22 )

71.

It is against that legal background ( 23 ) that the main events of the case in the main proceedings and the questions referred for a preliminary ruling should be viewed.

72.

It is common ground and undisputed that, since the petitioner in the main proceedings and the respondent in the main proceedings have French nationality, the French court with which the respondent lodged a requête for judicial separation had international jurisdiction to consider it, in accordance with Article 3(1)(b) of Regulation No 2201/2003, just as it also has jurisdiction over therequête for divorce lodged by the respondent on 17 June 2014. It is equally undisputed that, since both spouses were habitually resident in the United Kingdom, the courts of that Member State also have international jurisdiction to grant their divorce in accordance with Article 3(1)(a) of Regulation No 2201/2003.

73.

Nor is it disputed that, since the respondent in the main proceedings was the first to file a petition for judicial separation with a French court, in this instance on 30 March 2011, the court of the United Kingdom with which the petitioner in the main proceedings filed a divorce petition on 24 May 2011 was second seised and was therefore required to stay the proceedings, in accordance with Article 19(1) of Regulation No 2201/2003, until such time as the jurisdiction of the French court was established.

74.

It is, lastly, also common ground that the French court first seised declared, in the non-conciliation order made on 15 December 2011, that it had jurisdiction over the petition for judicial separation brought by the respondent in the main proceedings and, at the same time, invited the parties to institute proceedings for a decree of judicial separation. In consequence, and in accordance with Article 19(3) of Regulation No 2201/2003, on 7 November 2012 the High Court dismissed, by consent, the divorce petition issued by the petitioner in the main proceedings, as is apparent from the order for reference.

75.

It follows from this that, at least in that initial phase, the main proceedings complied with the rules of lis pendens laid down in Article 19 of Regulation No 2201/2003.

76.

It must be emphasised, in particular, as the Commission observed and which was not debated, that there is lis pendens within the meaning of that provision ( 24 ) where divorce proceedings are issued in a Member State and judicial separation proceedings are issued in parallel in another Member State, that provision requiring only that the parties be the same, and not that the proceedings involve exactly the same cause of action. ( 25 )

77.

The dispute in the main proceedings and the questions put by the referring court do not, however, relate to that initial phase of the main proceedings, but to a second phase, which begins shortly before the expiry of the 30-month period laid down in Article 1113 of the Code of Civil Procedure, at the end of which the non-conciliation order made by the French court first seised lapses.

78.

As is apparent from the order for reference, shortly before that period expired on 6 June 2014, the petitioner in the main proceedings sought the High Court’s proleptic acceptance of her divorce petition. ( 26 ) That application, described by the referring court as ‘imaginative’, was none the less dismissed as too innovative. The petitioner in the main proceedings subsequently filed a petition for divorce with the referring court on 13 June 2014.

79.

It must be noted in that regard that, unlike the application of 6 June 2014, the purpose of which was different, the divorce petition of 13 June 2014 has not been formally dismissed by the referring court, with no explanation for this having been provided. In particular, the referring court does not indicate whether it considers itself to have been validly seised, having regard to the law of the United Kingdom and to Article 16 of Regulation No 2201/2003.

80.

Be that as it may, it is the divorce petition which the petitioner in the main proceedings filed on 13 June 2014 that gave rise to the proceedings in which the High Court was led to make a reference to the Court of Justice for a preliminary ruling in the main proceedings, the respondent in the main proceedings having invited the High Court to dismiss the petition pursuant, precisely, to Article 19 of Regulation No 2201/2003, arguing that the judicial separation proceedings were still pending on 13 June 2014, and claiming an abuse of process.

81.

It is, moreover, the specific context in which that petition was filed that explains the singular, to say the least, wording of the questions referred to the Court of Justice, to which it is appropriate to turn now.

82.

The two questions referred by the referring court are closely linked in so far as their very wording is such that they expressly concern the concept of ‘established jurisdiction’ within the meaning of Article 19(1) and (3) of Regulation No 2201/2003.

83.

By its first question, the referring court asks, in essence, whether the provisions of Article 19(1) and (3) of Regulation No 2201/2003 must be interpreted as meaning that the jurisdiction of the court of a Member State first seised of a petition for judicial separation must be regarded as still being ‘established’ in the circumstances described, namely where:

84.

By its second question, the referring court queries whether Article 19 of Regulation No 2201/2003, and in particular the term ‘established’, must be interpreted as requiring the party who has issued judicial separation proceedings in a court of a Member State to act with due diligence and expedition in order to bring those proceedings to a resolution.

85.

In many respects, the second question simply reformulates the first, as the referring court is ultimately seeking essentially to determine whether the jurisdiction of a court of a Member State first seised of a petition for judicial separation can be regarded as still being established within the meaning of Article 19(1) and (3) of Regulation No 2201/2003 in the absence of any diligence on the part of the petitioner in bringing it to a conclusion.

86.

Be that as it may, the referring court’s query thus concerns only the question whether Regulation No 2201/2003 must be interpreted as meaning that the jurisdiction of the French court, which has been duly established within the meaning of Article 19 of that regulation so far as concerns the judicial separation proceedings issued by the respondent in the main proceedings on 30 March 2011, must be regarded as ‘still’ being established in the circumstances of the main case, and whether the referring court must therefore stay proceedings and, if appropriate, decline jurisdiction in favour of the French court, in the context of the divorce proceedings issued in the referring court by the petitioner in the main proceedings on 13 June 2014.

87.

However, in order to answer that question, it is necessary first to determine which of the two courts — the referring court seised of a divorce petition by the petitioner in the main proceedings on 13 June 2014 or the French court seised of a requête for divorce by the respondent in the main proceedings on 17 June 2014 — must, in the particular circumstances of the main case, characterised as they are by the fact that the judicial separation proceedings brought in France expired between those two dates, be regarded as ‘the court first seised’ within the meaning of Article 19 of Regulation No 2201/2003. That question depends, however, on the interpretation both of Article 16 of Regulation No 2201/2003, not referred to by the referring court, and of Article 19 of that regulation.

88.

Consequently, the two questions referred for a preliminary ruling must be examined together and, moreover, must be expanded and reformulated to relate also to Article 16 of Regulation No 2201/2003.

89.

Therefore, and for the purpose of providing the referring court with the information it needs to dispose of the main proceedings, it is my view that the main question which the Court has to answer can be formulated as follows:

‘Must Articles 16 and 19 of Regulation No 2201/2003 be interpreted as meaning that, in circumstances such as those of the main proceedings:

the jurisdiction of the court of the first Member State over the divorce petition must be considered to be established?’

90.

While the Court of Justice has already had occasion to interpret Article 19(2) of Regulation No 2201/2003 concerning lis pendens in matters of parental responsibility, ( 27 ) it has not yet had occasion to interpret the provisions of Article 19(1) and (3), or those of Article 11(1) and (3) of Regulation No 1347/2000 or Article 11(1) and (3) of the Brussels Convention of 28 May 1998.

91.

The Court has, on the other hand, had occasion to interpret analogous provisions in other instruments, in particular Article 21 of the Brussels Convention ( 28 ) and Article 27 of Regulation No 44/2001, ( 29 ) and can therefore reasonably rely on that case-law in answering the questions of the referring court. ( 30 )

92.

In the present case, Article 19(1) and (3) of Regulation No 2201/2003 provides that, in a situation of lis pendens, the court second seised must of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established and, where that is the case, decline jurisdiction in favour of that court.

93.

The court of a Member State seised, for example, of a divorce petition must therefore of its own motion stay its own proceedings if a court of another Member State has previously been seised of a petition for judicial separation, for example, until such time as the latter’s jurisdiction is established. Once that jurisdiction is established, the court second seised of the divorce petition must decline jurisdiction in favour of the court first seised of the petition for judicial separation.

94.

Those provisions thus establish, like Article 21 of the Brussels Convention, a procedural rule of lis pendens which is based clearly and solely on the chronological order in which the courts involved are seised. ( 31 )

95.

In the circumstances of the main proceedings, as I have already stated, the United Kingdom court seised of the divorce petition issued by the petitioner in the main proceedings on 24 May 2011 was required to stay the proceedings, pursuant to Article 19(3) of Regulation No 2201/2003, then decline jurisdiction in accordance with Article 19(3) of Regulation No 2201/2003, which it duly did.

96.

However the questions which the referring court raises do not concern the divorce petition which the petitioner in the main proceedings filed on 24 May 2011, but that filed on 13 June 2014, and the problem of lis pendens with which the referring court considers itself to be faced arises from the succession of proceedings issued in France — the judicial separation proceedings issued on 30 March 2011 and the divorce proceedings issued on 17 June 2014 — and the filing, between those two dates, of a divorce petition in the United Kingdom.

97.

In strictly chronological terms, it must be noted that although the divorce proceedings issued in the United Kingdom on 13 June 2014 were issued before the divorce proceedings brought in France on 17 June 2014, the judicial separation proceedings brought in France on 30 March 2011 were still pending on the date on which the divorce proceedings were issued in the United Kingdom.

98.

In other words, the provisions of Article 19(1) and (3) of Regulation No 2201/2003 do not in themselves solve the problem of lis pendens that arises in a situation such as that in the main proceedings, which is marked by the duality of the procedure for ‘undoing’ a marriage in France, and the commencement in two different Member States of parallel divorce proceedings shortly before and immediately after the expiry of judicial separation proceedings.

99.

It could be held, on the one hand, that at the time when it was seised of the divorce petition on 13 June 2014, the referring court was, and continued to be, the court second seised, and that it was therefore required to stay the proceedings and decline jurisdiction, since the judicial separation proceedings were still pending.

100.

It could, however, also be held that, on the other hand, at the time when the French court was seised of the divorce requête on 17 June 2014, the referring court was the court first seised, since the judicial separation proceedings had expired.

101.

Consequently, and in accordance with settled case-law, it is appropriate to seek the solution to the problem raised in the main proceedings taking into account the overall scheme of Regulation No 2201/2003 and the purpose pursued by the rules it lays down. ( 32 )

102.

I consider, in particular, that the Commission’s proposition that the Court, judicially, fix the date as at which lis pendens must be assessed cannot be accepted, since it effectively denies the very existence of any lis pendens in the main proceedings. The approach advocated by the United Kingdom Government, which consists in determining which of the two courts seised of parallel divorce petitions and also having jurisdiction to hear them must, in the circumstances of the main proceedings, be regarded as being the first seised, seems to me to be the more appropriate.

103.

It must be recalled in that regard that the rules relating to lis pendens are intended, in the interests of the proper administration of justice within the European Union, to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom. ( 33 )

104.

To that end, Regulation No 2201/2003 established, in Article 19, a clear and effective mechanism for resolving cases of lis pendens that is based on the chronological procedural rule examined above, but also defined, in Article 16, ( 34 ) the concept of ‘seising of a Court’.

105.

It must be noted that, for the purpose of applying the rules of lis pendens, a court is to be deemed to be seised in accordance with that provision either at the time when the document instituting the proceedings was lodged with that court, or at the time when the document instituting the proceedings is received by the authority responsible for service thereof, depending on the option chosen by the Member State of that court, it being made clear that, in both cases, the applicant must not fail to take the steps he is required to take to have the document either served on the respondent or lodged with the court, as the case may be.

106.

Article 16 of Regulation No 2201/2003 thus defines the procedural and temporal characteristics of the concept of seising of a court by prescribing when and under what circumstances the seising of a court takes place, irrespective of the applicable rules in the Member States. ( 35 ) More broadly, the concept of ‘court first seised’ must be considered an independent concept of EU law. ( 36 )

107.

It is thus necessary to determine on the basis of the provisions of Article 16 of Regulation No 2201/2003 how the rule of lis pendens established by Article 19 of Regulation No 2201/2003 must specifically be applied in a situation such as that in the main proceedings in such a way as to enable the risk of parallel proceedings to be minimised and to avoid prolonging the length of time for which proceedings are stayed by the court second seised. ( 37 )

108.

Consequently, the first issue to be addressed is that of establishing whether it can be held that the referring court was indeed ‘seised’ on 13 June 2014 within the meaning of Article 16 of Regulation No 2201/2003.

109.

That does indeed appear to be the case. The petitioner in the main proceedings lodged her divorce petition with the referring court on 13 June 2014 and there is nothing in the order for reference to suggest that she would not have taken the steps she was required to take in accordance with Article 16 of Regulation No 2201/2003. It is, however, ultimately for the referring court to carry out the appropriate checks in that regard.

110.

It will be noted, moreover, that it also appears that the French court was ‘seised’ on 17 June 2014, within the meaning of Article 16 of Regulation No 2201/2003, of the divorce petition lodged by the respondent in the main proceedings.

111.

Strict application of the chronological procedural rule laid down in Article 19 of Regulation No 2201/2003 thus requires the view to be taken that, in the circumstances of the main proceedings, the referring court is the court first seised of a divorce petition, and that it is therefore the French court, second seised, which is required to stay its proceedings until such time as the jurisdiction of the referring court is established and, if appropriate, to decline jurisdiction.

112.

In so far as the jurisdiction of the French court in the judicial separation proceedings brought by the respondent in the main proceedings must be regarded as having come to an end owing to the expiry of those proceedings and, moreover, the referring court must be considered to be the first seised of a divorce petition, the various facts identified by the referring court as being decisive in the questions it referred for a preliminary ruling ( 38 ) appear not to be relevant. The only question that remains is whether the jurisdiction of the referring court is established within the meaning of Article 19 of Regulation No 2201/2003.

113.

Notwithstanding the fact that it is for the referring court to rule in that regard, it must be observed that, under Article 3 of Regulation No 2201/2003, the referring court has jurisdiction over the divorce sought by the parties to the main proceedings. It may also be observed that the referring court did not decline jurisdiction to hear the divorce petition lodged by the petitioner in the main proceedings — quite the contrary — and, moreover, the respondent in the main proceedings did not raise any lack of jurisdiction of the referring court, but merely lodged an application for the divorce petition of the petitioner in the main proceedings to be dismissed or struck out, pursuant to Article 19(3) of Regulation No 2201/2003. ( 39 )

114.

It might also be contended that, in circumstances such as those of the main proceedings, the proposed interpretation of Articles 16 and 19 of Regulation No 2201/2003 disadvantages those who, like the respondent in the main proceedings, are unable to bring divorce proceedings in France after having brought judicial separation proceedings if divorce proceedings are brought in another Member State shortly before expiry of the deadline for the lapsing of the judicial separation proceedings that is laid down in Article 1113 of the Code of Civil Procedure.

115.

That disadvantage is, however, more apparent than real, since it is common ground that the respondent in the main proceedings could, had he wished to do so, have withdrawn his petition for judicial separation in order to lodge a requête for divorce with a French court. If there is a disadvantage, it is only as a result of the situation created by the duality of the procedure for ‘undoing’ a marriage in France and the procedural imbalance which Articles 1076, 1111 and 1113 of the Code of Civil Procedure introduce as between applicant and respondent in the conduct of judicial separation proceedings.

116.

In any event, and as Advocate General Jääskinen pointed out in his Opinion in Weber ( 40 ) in relation to Article 27 of Regulation No 44/2001, the priority of jurisdiction which that provision established on the basis solely of a chronological criterion necessarily favours the party which has been quicker to bring proceedings before a court of a Member State.

117.

It follows from the foregoing that the answer to be given to the questions referred by the referring court is that Articles 16 and 19 of Regulation No 2201/2003 must be interpreted as meaning that, in circumstances such as those of the main proceedings:

the jurisdiction of the court of the first Member State over the divorce petition must be considered not to be established.

118.

In the light of the foregoing, I propose that the Court of Justice answer the questions referred by the High Court of Justice, Family Division, for a preliminary ruling as follows:

Articles 16 and 19 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that, in circumstances such as those of the main proceedings:

the jurisdiction of the court of the first Member State over the divorce petition must be considered not to be established.