Case C‑281/15

Soha Sahyouni

v

Raja Mamisch

(Request for a preliminary ruling from the Oberlandesgericht München)

‛Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court — Judicial cooperation in civil matters — Regulation (EU) No 1259/2010 — Scope — Recognition of a private divorce pronounced by a religious court in a third country — Manifest lack of jurisdiction of the Court’

Summary — Order of the Court (First Chamber), 12 May 2016

Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law made applicable directly and unconditionally by national law to situations falling outside their scope — Included — Condition — Requirement for the national court to indicate the existence of such an extension — Lack of such an indication — Clear lack of jurisdiction of the Court

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 53(2); Council Regulations No 2201/2003 and 1259/2010)

Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation lays down only the rules governing conflicts of applicable laws in matters of divorce and legal separation and does not govern the recognition, in a Member State, of a divorce decision which has already been pronounced. On the contrary, it is Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 which lays down, inter alia, the rules governing recognition and enforcement of matrimonial decisions. Nevertheless, it is not applicable to such decisions pronounced in a third country. Given that Regulation No 2201/2003 applies only between the Member States, the recognition of a divorce decision delivered in a third country does not fall within the scope of EU law.

In a situation where neither the provisions of Regulation No 1259/2010, referred to by the referring court, nor those of Regulation No 2201/2003, nor any other legal act of the European Union apply to the dispute in the main proceedings, The Court has also pointed out that an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way, in order to ensure that internal situations and situations governed by EU law are treated in the same way. Accordingly, the Court is called upon to ascertain whether there are indications sufficiently precise to enable that reference to EU law to be established.

However, it is not for the Court to take such an initiative if it is not apparent from the order for reference that such applicability is effectively shown by the national court. That is not the case where the national court merely relies on a theoretical applicability of Regulation No 1259/2010 to the facts of the main proceedings without any other element being provided which is capable of establishing the applicability of Regulation No 1259/2010 or other provisions of EU law to those facts.

(see paras 19, 20, 22, 23, 27, 28, 30, 31)