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Document 62016CC0372

Opinion of Advocate General Saugmandsgaard Øe delivered on 14 September 2017.
Soha Sahyouni v Raja Mamisch.
Request for a preliminary ruling from the Oberlandesgericht München.
Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1259/2010 — Enhanced cooperation in the area of the law applicable to divorce and legal separation — Recognition of a private divorce obtained before a religious court in a third country — Scope of that regulation.
Case C-372/16.

Digital reports (Court Reports - general - 'Information on unpublished decisions' section)

ECLI identifier: ECLI:EU:C:2017:686

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 14 September 2017 ( 1 )

Case C‑372/16

Soha Sahyouni

v

Raja Mamisch

(Request for a preliminary ruling
from the Oberlandesgericht München (Higher Regional Court, Munich, Germany))

(Reference for a preliminary ruling — Jurisdiction of the Court — Regulation (EU) No 1259/2010 — Enhanced cooperation in the area of the law applicable to divorce and legal separation — Scope — Article 1 — Recognition of a private divorce pronounced by a religious court in a third country — Article 10 — Disregard of the applicable foreign law — Discriminatory access to divorce depending on the sex of the spouses — Assessment in the abstract of whether the applicable foreign law is discriminatory — Irrelevance of any consent given by the spouse discriminated against)

I. Introduction

1.

The request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court, Munich, Germany) relates to the interpretation of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, ( 2 ) the provisions of which have never yet been the subject of a substantive analysis by the Court.

2.

The present request follows on from a previous request made by the aforementioned court in the course of the same dispute in the main proceedings, concerning a judicial procedure aimed at obtaining the recognition in Germany of a divorce decision adopted by a religious court in Syria. That first reference for a preliminary ruling led to an order, made on 12 May 2016 in Sahyouni (C‑281/15), ( 3 ) by which the Court declared its manifest lack of jurisdiction to give a ruling. ( 4 )

3.

The national court has come to the Court again in order to refer for a preliminary ruling several questions concerning Regulation No 1259/2010. Before they are examined, it will be necessary to establish that the Court actually has jurisdiction to answer those questions — notwithstanding that the recognition of a divorce pronounced in a third State, such as that at issue in the main proceedings, does not fall within the scope of that regulation — given the fact, apparent from the order for reference, that that act of EU law is applicable to such situations by virtue of the relevant rules of German law.

4.

The first question raised asks the Court to determine whether the provisions of Regulation No 1259/2010 cover divorces classified as ‘private’, in so far as they are based not on a decision creating or altering rights which is issued by a court or other public authority, but on a unilateral or mutual declaration of intent by the spouses, in some cases with the participation, in a purely declaratory capacity, of a foreign authority.

5.

The other questions, submitted in the alternative, relate to Article 10 of that regulation, which allows the law of the forum to be substituted for the law which should in principle apply in the event that the latter law gives rise to discrimination between the spouses on grounds of their sex. In this regard, the Court is asked, first of all, whether the assessment of the existence of such a discriminatory effect must be conducted in the abstract or in the particular case. Should it find that that assessment must be made in the light of the circumstances of the instant case, the Court will then have to determine whether any consent to the divorce given by the spouse discriminated against enables the discriminatory foreign law to be applied nonetheless.

II. Legal framework

A.  EU law

6.

Regulation No 1259/2010 is applicable only in the Member States participating in the enhanced cooperation in the area of the law applicable to divorce and legal separation which is provided for in that instrument. ( 5 )

7.

Recital 9 thereof states that Regulation No 1259/2010 ‘should create a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests’.

8.

Recital 10 of that regulation states that ‘[t]he substantive scope and enacting terms of [that regulation] should be consistent with [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 ( 6 )]’. It further says that Regulation No 1259/2010 ‘should apply only to the dissolution or loosening of marriage ties’ and that ‘the law determined by the conflict-of-laws rules of [that regulation] should apply to the grounds for divorce and legal separation’.

9.

Recital 24 of that regulation states that, ‘in certain situations, such as where the applicable law makes no provision for divorce or where it does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the court seized should nevertheless apply. This, however, should be without prejudice to the public policy clause’.

10.

Article 1(1) thereof provides that Regulation No 1259/2010 is to apply, ‘in situations involving a conflict of laws, to divorce and legal separation’.

11.

Under Article 4 of that regulation, entitled ‘Universal application’, ‘the law designated by this Regulation shall apply whether or not it is the law of a participating Member State’.

12.

Article 8 of that regulation determines the applicable law in the absence of a choice made by the parties pursuant to Article 5, establishing as rolling connecting factors, subject to certain conditions, the place where the spouses are habitually resident at the time when the court is seised or, failing that, the place where they were last habitually resident or, failing that, their common nationality or, failing that, the seat of the court seised.

13.

According to Article 10 of Regulation No 1259/2010, entitled ‘Application of the law of the forum’, ‘[w]here the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply’.

14.

Article 12 of that regulation, entitled ‘Public policy’, provides that ‘application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum’.

B.  German law

1.   FamFG

15.

The Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ( 7 ) (Law on proceedings in family matters and in matters of non-contentious jurisdiction, ‘FamFG’) reads as follows in Paragraph 107 thereof, entitled ‘Recognition of foreign judgments in marital matters’:

‘(1)   Decisions delivered in a foreign country … which dissolve a marriage in accordance with canon law or in perpetuation of the holy bond of matrimony … shall be recognised only if the Land Justice Administration has found that the conditions of recognition are met. …

(6)   If the Land Justice Administration finds that the conditions of recognition are met, the spouse who did not make the application [for recognition] may apply to the Oberlandesgericht (Higher Regional Court) for a decision. …

(7)   Jurisdiction shall lie with a civil chamber of the Higher Regional Court in the district of which the Land Justice Administration has its seat. ...’

16.

Paragraph 109 of the FamFG, entitled ‘Impediments to recognition’, provides in subparagraph 1, point 4, thereof that ‘recognition of a foreign judgment shall be excluded … where [such] recognition … leads to a result that is obviously incompatible with essential principles of German law, in particular where [it] is incompatible with fundamental rights’. Under subparagraph 5 of that Paragraph, the foreign judgment is not to be the subject of a review as to its lawfulness.

2.   EGBGB

17.

In the version in force until 28 January 2013, Article 17(1) of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Law introducing the Civil Code, ‘EGBGB’) was worded as follows: ‘a divorce shall be subject to the law applicable to the general effects of marriage at the time when the petition for divorce is filed. Where the dissolution of the marriage is not possible under that law, the divorce shall be governed by German law where the petitioner is German at that time or was at the time of the marriage’.

18.

Following the amendments introduced by a law of 23 January 2013, ( 8 ) the abovementioned conflict-of-laws rule was revised in such a way that Article 17(1) of the EGBGB now provides that ‘any consequences of divorce in relation to property which are not governed by other provisions of this section shall be subject to the law applicable to divorce in accordance with Regulation (EU) No 1259/2010’.

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

19.

As indicated in the order of the Court of 12 May 2016 in Sahyouni (C‑281/15), ( 9 ) Mr Raja Mamisch and Ms Soha Sahyouni married on 27 May 1999 within the jurisdiction of the Islamic Court of Homs (Syria). Both parties hold Syrian nationality, which they have had since birth, and German nationality, acquired by naturalisation in the case of Mr Mamisch and on marriage in the case of Ms Sahyouni. After living in Germany until 2003, they moved to Syria and then lived alternately in Germany, Kuwait and in Lebanon. They are currently living in Germany again, at different addresses.

20.

On 19 May 2013, Mr Mamisch declared his intention to divorce his wife by having his authorised representative pronounce the divorce formula before the religious sharia court in Lakatia (Syria). On 20 May 2013, that court declared the couple divorced.

21.

It follows from the order for reference that, on 12 September 2013, Ms Sahyouni made a declaration, signed by her own hand, concerning receipt of payments to which she was entitled under religious law, namely a total of USD 20000 (approximately EUR 15000 ( 10 )), worded as follows: ‘... I have received all payments due to me under the marriage contract and on the basis of the unilateral divorce and hereby release him from all obligations to me under the marriage contract and the divorce decree No 1276 issued by the Latakia sharia court on 20 May 2013 ...’.

22.

On 30 October 2013, Mr Mamisch applied for the recognition of the divorce decision issued in Syria. By decision of 5 November 2013, the President of the Oberlandesgericht München (Higher Regional Court, Munich) granted that application and held that the statutory conditions applicable to the recognition of that divorce decision were satisfied.

23.

On 18 February 2014, Ms Sahyouni sought to have that decision set aside on the ground that the conditions governing the recognition of the divorce decree at issue were not satisfied.

24.

By decision of 8 April 2014, the President of the Oberlandesgericht München (Higher Regional Court, Munich) dismissed Ms Sahyouni’s application. In the grounds of his decision, that judge stated that, in his view, the recognition of the divorce decision at issue is governed by Regulation (EU) No 1259/2010, which also applies to private divorces. In the absence of a valid choice of applicable law and in the absence of a common habitual residence of the spouses in the year prior to the divorce, the applicable law must be determined in accordance with Article 8(c) of that regulation. Where both spouses have dual nationality, it is determined by their effective nationality under German law, ( 11 ) which, at the time of the divorce at issue, was Syrian nationality. Finally, he stated that public policy within the meaning of Article 12 of Regulation (EU) No 1259/2010 does not preclude the recognition of the decision issued in Syria, given that the wife accepted the form of divorce at issue retrospectively by declaring her acceptance of the subsequent payments and that, despite the potential discrimination, Article 10 of that regulation does not preclude recognition either in those circumstances.

25.

Ms Sahyouni appealed against that decision dismissing her application. By order of 2 June 2015, the Oberlandesgericht München (Higher Regional Court, Munich) stayed the proceedings and referred to the Court for a preliminary ruling a number of questions on the interpretation of Regulation No 1259/2010.

26.

In Sahyouni (C‑281/15), the Court, by order of 12 May 2016, ( 12 ) declared its manifest lack of jurisdiction to answer those questions on the grounds, in particular, that Regulation No 1259/2010 did not apply to the recognition of a divorce decision which has already been pronounced in a third State and that the referring court had not adduced any evidence to show that the provisions of that regulation had been made applicable to such situations by national law in a direct and unconditional way. It pointed out, however, that the national court could still submit a new request for a preliminary ruling once it was in a position to supply the Court with all of the information enabling it to rule.

27.

It was in that context that, by decision of 29 June 2016, received at the Court on 6 July 2016, the Oberlandesgericht München (Higher Regional Court, Munich) decided to stay the proceedings a second time and to refer the following question to the Court for a preliminary ruling:

‘(1)

Does the scope of [Regulation No 1259/2010], as defined in Article 1 of that regulation, also include cases of private divorce, in this instance one pronounced by unilateral declaration of a spouse before a religious court in Syria on the basis of sharia?

(2)

If the answer to [the first question] is in the affirmative: In applying Regulation [No 1259/2010] [when examining] Article 10 thereof in cases of private divorce,

(a)

is account to be taken in the abstract of a comparison showing that, while the law pursuant to Article 8 grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to procedural and substantive conditions different from those applicable to access for the first spouse, or

(b)

does the applicability of that rule depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

(3)

If the answer to [the second part of the second question] is in the affirmative: Does the fact that the spouse discriminated against consents to the divorce — including by duly accepting compensation — itself constitute a ground for not applying that rule?’

28.

In the present proceedings, written observations have been lodged by the German, Belgian, French, Hungarian and Portuguese Governments, and by the European Commission. At the hearing of 31 May 2017, Mr Mamisch, the German and Hungarian Governments and the Commission presented oral argument.

IV. Analysis

29.

Given the objections raised in this regard, it is necessary, before analysing the questions put to the Court, to examine whether the latter has jurisdiction to answer them in the present proceedings, contrary to the ruling given in this regard in relation to the previous request for a preliminary ruling made by the referring court in the course of the same dispute in the main proceedings.

A.  The Court’s jurisdiction

30.

I should say at the outset that, in my view, the Court has sufficient information to rule on the questions which have been submitted to it in the present proceedings, in accordance with its case-law to the effect that its own jurisdiction may be based on the fact that the provisions of EU law whose interpretation is sought are made applicable to the dispute in the main proceedings by national law.

1.   The lessons to be learned from the Court’s case-law

31.

First of all, it should be recalled that it follows from settled case-law that the presumption of relevance enjoyed by questions which a national court refers for a preliminary ruling, in the factual and legislative context which that court is responsible for defining, may be disapplied only in exceptional circumstances. ( 13 ) A request for a preliminary ruling can be rejected if, inter alia, it is obvious that EU law cannot be applied, either directly or indirectly, to the circumstances of the case. ( 14 )

32.

In the present case, as the Court held in the order of 12 May 2016, Sahyouni (C‑281/15), ( 15 ) the dispute in the main proceedings falls outside the scope of EU law, since neither Regulation No 1259/2010 nor Regulation No 2201/2003, nor any other EU legal act, is applicable to such a dispute, the subject matter of which is an application for the recognition in a Member State of a divorce decision pronounced by a religious authority in a third State.

33.

As regards, more specifically, Regulation No 1259/2010, ( 16 ) the provisions of which were explicitly referred to in the request for a preliminary ruling in that case, the Court pointed out that that regulation lays down only the rules governing conflicts of applicable laws in participating Member States ( 17 ) in matters of divorce and legal separation and does not govern the recognition of a divorce decision which has already been pronounced. ( 18 )

34.

Consequently, in accordance with the principles established in the judgment in Dzodzi ( 19 ) and refined in subsequent case-law, ( 20 ) it is only if the referring court has sufficiently established that Regulation No 1259/2010 is applicable to the circumstances of the dispute pending before it by virtue of the law of the Member State in which it is situated that the Court of Justice will have jurisdiction to rule on the questions referred by the national court, notwithstanding that that dispute does not directly fall within the scope of that regulation.

35.

In that regard, I would reiterate ( 21 ) that the Court may find that it has jurisdiction to answer questions referred to it for a preliminary ruling even if the provisions of EU law in respect of which an interpretation is sought do not apply to the facts in the main proceedings, where those provisions have been made applicable by national law in a direct and unconditional way. Where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly. Accordingly, the Court is required to ascertain whether there are sufficiently precise indications to enable that reference to EU law to be established, in the light of the information provided in that regard in the request for a preliminary ruling. ( 22 )

36.

It is also clear from that case-law that, even if the legislation transposing a directive into national law has not reproduced verbatim the provisions of EU law forming the subject matter of the questions referred for a preliminary ruling, the Court may have jurisdiction to give a preliminary ruling where it is recognised in the order for reference that any interpretation given by the Court of those provisions would be binding in relation to the resolution of the dispute in the main proceedings. ( 23 ) It is clearly crucial that the referring court be of the view that the concepts referred to in the national law must indeed be interpreted in the same way as the equivalent concepts of EU law and that it is bound in that regard by the interpretation of those concepts that will be provided by the Court. ( 24 )

37.

In accordance with the requirements of Article 94 of the Rules of Procedure of the Court, it is for the referring court to indicate in what way the dispute pending before it has a connection with the provisions of EU law referred to in its request for a preliminary ruling that makes the interpretation sought necessary for it to give judgment in that dispute. ( 25 ) After all, in the context of a reference for a preliminary ruling, it is for the courts of the Member States alone, and not the Court, to determine the purpose and content of the rules of national law applicable to the dispute in the main proceedings, as well as the way in which those rules must be implemented, with the result that the Court is bound by the view expressed in that regard by the referring court. ( 26 )

38.

In particular, where EU law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to EU law. If it takes the view that the content of provisions of EU law is, by virtue of that direct and unconditional reference, applicable to the situation, not covered by those provisions, underlying the dispute brought before it, that court is entitled to make a request for a preliminary ruling on the terms laid down by Article 267 TFEU. ( 27 ) The Court nevertheless generally ensures that the rules of EU law, as it has itself interpreted them, have indeed been made applicable, that it is impossible for the national court to depart from them ( 28 ) and that such an extension of the scope of those rules is not contrary to the express intention of the EU legislature. ( 29 )

39.

In order to confirm that the competent authorities of a Member State have indeed decided to extend identical treatment to situations not covered by the EU act concerned and to situations governed by that act, the Court takes into consideration not only the content of the national provisions but also additional factors such as the preamble to and the explanatory memorandum of the relevant legislation. ( 30 ) In that regard, the Court takes into account both the order for reference ( 31 ) and all of the observations which have been submitted to it, in particular the view expressed by the government of the Member State whose legal system is concerned, even though the final assessment of the content of the national law is a matter for the referring court alone. ( 32 )

40.

The assessment as to whether the Court has sufficient information to be able find that it has jurisdiction in the present case, contrary to its finding in relation to the previous request for a preliminary ruling made in the course of the same dispute in the main proceedings, ( 33 ) must be made in the light of the lessons learned from that case-law.

2.   The existence of a sufficient connecting factor with EU law

41.

The Belgian and Hungarian Governments submit that the Court lacks jurisdiction, on the ground that it does not follow from the order for reference that the German legal system refers directly and unconditionally to Regulation No 1259/2010 in cases where the recognition of a private divorce pronounced in another State is applied for in Germany. At the hearing, the Commission qualified the view it had initially expressed to the same effect, in the light of the explanations provided by the German Government in the present procedure.

42.

Both Mr Mamisch and the German, French and Portuguese Governments, on the other hand, consider that German law makes that regulation applicable to a dispute such as that in the main proceedings and that, in accordance with the case-law recalled above, the Court therefore has jurisdiction to answer the questions raised by the referring court. I take the same view.

43.

It is true that the referring court does not specify which rule of German law makes it necessary, in its view, for Regulation No 1259/2010 to be applied to the ‘recognition’ of a private divorce performed abroad, thereby requiring that such a divorce be the subject of a review as its validity, from the point of view of the law identified as being applicable to it, before being permitted to produce its effects in Germany. ( 34 ) However, it is common ground that the referring court alone has jurisdiction to interpret national law. ( 35 ) And that court expressly states that German law makes the conflict-of-laws rules set out in that regulation applicable, within the meaning of the case-law cited above, ( 36 ) to the dispute pending before it. Moreover, that assertion is clearly borne out by the information provided by the German Government in this case in connection with the national legal framework.

44.

In the grounds of its order, the referring court points up a difference, as regards the recognition in Germany of divorces pronounced abroad, between those pronounced with the participation of a court or other State authority acting in a capacity involving the creation or alteration of rights, and those, described as ‘private divorces’, which are based on a manifestation of unilateral or mutual intent by the parties, even though they may have been performed with the participation of a foreign authority acting in a purely declaratory capacity, for example by registering the divorce. ( 37 )

45.

It states that, in accordance with German legal practice, the procedural rules contained in Paragraph 107 of the FamFG ( 38 ) are applicable to the recognition of both categories of divorce. So far as concerns the substantive rules, however, there is a widely-held — although not unanimous — view that private divorces forming the subject of an application for recognition must be examined by the German courts not in the light of the requirements of Paragraph 109 of the FamFG, ( 39 ) as divorces pronounced by a public authority are, but in accordance with the rules set out in Regulation No 1259/2010. ( 40 )

46.

According to the referring court, that view is correct, given that it would be inconceivable for the divorces of third-country nationals to be adjudicated upon in Germany in accordance with provisions different from those applicable to the recognition of a divorce already pronounced in another State. Moreover, if the application of Regulation No 1259/2010 to private divorces were excluded, there would be a loophole in German law not intended by the German legislature, which, in 2013, repealed the conflict-of-laws rule previously applicable, inter alia, to the recognition of private divorces pronounced in another State, ( 41 ) which was contained in Article 17(1) of the EGBGB, ( 42 ) on the ground that it considered that provision to be obsolete precisely because of the existence of the aforementioned regulation.

47.

In that regard, the German Government explains that the recognition in Germany of divorces arising from a decision creating or altering rights which is issued by a court or other public authority in another State is not subject to a review as to the legality of such a decision, ( 43 ) but involves only a procedural verification ( 44 ) of compliance with the requirements laid down in Paragraph 109 of the FamFG. ( 45 ) Private divorces, ( 46 ) on the other hand, are recognised in Germany only after a review of their validity, ( 47 )which must be carried out in the light of the provisions of substantive law of the State designated by the relevant conflict-of-laws rules, ( 48 ) that is to say, henceforth, those contained in Regulation No 1259/2010.

48.

The German Government states that the German legislature did indeed repeal the conflict-of-laws rule provided for in the former Article 17(1) of the EGBGB because it took the view that, following the entry into force of Regulation No 1259/2010, the law applicable to the dissolution of marriage was to be determined exclusively on the basis of the provisions of that regulation, because of the universal effect provided for in Article 4 thereof. Moreover, as the parliamentary documentation cited in the German Government’s written observations clearly indicates, ( 49 ) the national legislature started from the principle that Regulation No 1259/2010 also applied to private divorces. It follows from those assumptions that German law no longer has an autonomous conflict-of-laws rule for determining the law applicable to a divorce such as that at issue in the main proceedings.

49.

It was therefore as a direct result of the deliberate removal of the German conflict-of-laws rule for identifying the law applicable to the assessment of the validity of private divorces pronounced in another State, ( 50 ) first, that the application of Regulation 1259/2010 to that type of procedure was made necessary in German law, in line with the intention of the national legislature and an apparently widespread practice on the part of the national courts, ( 51 ) and, secondly, that the Court’s binding interpretation of the provisions of that regulation is indeed crucial, in the assessment incumbent on the referring court, to the resolution of the dispute in the main proceedings.

50.

I would also submit that the assumption made by the German legislature with respect to the substantive scope of that regulation is not obviously at odds with any express intention on the part of the EU legislature, as was true in other cases. ( 52 ) Even though that assumption is actually ill-founded in my opinion, ( 53 ) the error is immaterial to the assessment as to whether the Court has jurisdiction, for which it is sufficient that the national law makes reference to EU law in the manner recalled above.

51.

In the light of all the foregoing, it is by no means obvious ( 54 ) that the provisions of EU law whose interpretation is sought are, in this instance indirectly, ( 55 ) applicable to the dispute pending before the referring court. Since the conditions set out in the case-law cited above ( 56 ) are fulfilled in my view, I consider the jurisdiction of the Court to be established in the present proceedings.

B.  Whether private divorces fall within the scope of Regulation No 1259/2010 (first question)

52.

By its first question, the referring court asks the Court, in essence, to rule on whether divorces in which no decision creating or altering rights has been issued by a public authority — be it a court or other organ of the State — fall within the substantive scope of Regulation No 1259/2010.

53.

To begin with, I would note that the relevance of this question is open to challenge, given that, for the reasons given above, ( 57 ) the provisions of Regulation No 1259/2010 are applicable to the dispute in the main proceedings only by virtue of the direct reference which German law makes to that regulation for the purposes of determining the law applicable in legal proceedings relating to the recognition of private divorces pronounced in another State. It might therefore be opined that the view sought from the Court with respect to the scope of that regulation is not necessary to the resolution of this dispute, since German law requires such proceedings to be governed by that regulation in any event.

54.

To my mind, however, there is a genuine interest in having the Court give an answer to the question raised, inasmuch as this will ensure, in accordance with the case-law cited above, ( 58 ) that the concept of ‘divorce’ within the meaning of Regulation No 1259/2010 is uniquely interpreted and, therefore, uniformly applied in the legal orders of all of the participating Member States. In this instance, if the Court answers that question in the negative, as I shall recommend, the German authorities will, in particular, be compelled to adapt the rules of national law accordingly, as the German Government acknowledged at the hearing.

55.

The issue of whether such private dissolutions are covered by that regulation is raised, in the present case, in relation to an Islam-based — Syrian — legal system which allows the bonds of marriage to be dissolved by an act of intent drawn up by the husband which is then simply registered or made the subject of a purely declaratory decision issued by a religious authority. That issue arises more generally, however, in relation to divorces of all existing types which are obtained without the participation of a public authority acting in a capacity involving the creation or alteration of rights, whether they arise from a manifestation of unilateral or joint intent by the parties.

56.

In their observations, Mr Mamisch and the German and French Governments consider that private divorces must be governed by the provisions of Regulation No 1259/2010, at the very least in circumstances such as those of the case in the main proceedings. ( 59 ) The Belgian, Hungarian and Portuguese Governments and the Commission, on the other hand, take the contrary view, which I share, for the following reasons.

57.

First of all, it is apparent that the wording of the provisions of Regulation No 1259/2010, in particular Article 1, which relates to the scope of that instrument, does not provide any information that might be of use in answering the question referred for a preliminary ruling, since it does not in any way define the concept of ‘divorce’.

58.

According to the Court’s settled case-law, it follows from the need for a uniform application of EU law that, where an EU act makes no reference to the law of the Member States for the purposes of defining a particular concept, as is the case here, that concept must be given an independent interpretation to be adopted by the Court in the light of the general scheme, objectives and genesis of the regulation in question. ( 60 )

59.

As regards the general scheme of Regulation No 1259/2010, Mr Mamisch and the German Government claim that the exclusion of private divorces from its substantive scope does not follow from a schematic overview of all of the provisions of that regulation. I do not agree with their analysis.

60.

It is true that private divorces are not explicitly excluded from the regulation’s substantive scope, unlike dissolution of the bond of marriage in the form of annulment. ( 61 ) However, many of the provisions of Regulation No 1259/2010 put a ‘court’, as loosely defined in Article 3(2), ( 62 ) and the existence of a ‘proceeding’ at the centre of the process of dissolving or loosening a marriage bond. ( 63 ) In my view, this would indicate that the EU legislature intended ‘divorces’ within the meaning of that regulation to be covered only in the context of decisions issued by competent public authorities. ( 64 )

61.

I would submit that it is not material in this regard that the legislature inserted into Regulation No 1259/2010 the provisions contained in Article 10 thereof, which enable the court seised not to apply a discriminatory foreign law in so far as it affords the spouses different access to divorce depending on their sex. ( 65 ) After all, it is not inconceivable that such a law is applicable to a public divorce but not to a private one, as is the case here.

62.

As regards the objectives pursued by Regulation No 1259/2010, the German and French Governments submit that the scope of that regulation must be construed broadly, on the ground that that instrument, being universal in nature, is intended to govern all divorce scenarios conceivable under the substantive legal regimes potentially applicable. It is true that, in accordance with Article 4, the laws of any legal system — not only those of the participating Member States — may be applicable under that regulation ( 66 ) and that some legal systems of States which are not members of the European Union recognise private divorce in a wide range of forms. In my view, however, those considerations are not decisive from the point of view of the range of divorce types covered by Regulation No 1259/2010, taking into account not only the arguments set out above but also additional factors linked to the genesis of that regulation.

63.

Like the Belgian, Hungarian and Portuguese Governments and the Commission, I am of the opinion that the content of Regulation No 2201/2003 must be taken into account in the interpretation of Regulation No 1259/2010, given the close links which have historically existed between those acts, ( 67 ) notwithstanding that one relates to conflicts of jurisdiction and the other relates to conflicts of laws. Thus, the first sentence of recital 10 of Regulation No 1259/2010 states that ‘the substantive scope and enacting terms [of that regulation] should be consistent with Regulation [No 2201/2003]’, and other provisions of the former regulation make express reference to its relationship with the latter. ( 68 )

64.

It is acknowledged by all the interested parties which have lodged written observations in this case that the term ‘divorce’ as used in Regulation No 2201/2003 does not include private divorces, given that that regulation governs only the jurisdiction of the courts of the Member States ( 69 ) and the recognition and enforcement of judgments handed down by them, in particular in matters relating to divorce. ( 70 ) The identical term that appears in Regulation No 1259/2010 should in my view be interpreted in the same way in order to ensure the consistency with that related act which the EU legislature intended should exist, with the result that decisions issued by non-public authorities cannot fall within the scope of those two instruments.

65.

A look at the preparatory discussions which led to the adoption of Regulation No 1259/2010 does not itself yield any conclusive information in the present case, as I have found nothing to show that the issue of private divorces was specifically raised. However, that silence does, to my mind, indicate, as both the Hungarian Government and the Commission argue, that, during the adoption of that regulation, the EU legislature had in mind only situations in which a divorce is pronounced by a State-administered court or by another public authority. After all, as the German Parliament has noted, ( 71 ) moreover, it is common ground that, at that time, it was a matter of law in the Member States participating in the enhanced cooperation in the area of the law applicable to matrimonial matters ( 72 ) that public bodies alone were able to adopt legally valid decisions in that sphere. ( 73 )

66.

In so far as the question of whether or not to include private divorces does not appear to have been discussed during the negotiations leading up to the adoption of Regulation No 1259/2010, and in the light of the other considerations set out above, ( 74 ) I take the view that the Court cannot give a ruling which would incorporate divorces of this type into the scope of that regulation. Any such decision falls to be taken by the EU legislature alone, if it considers it appropriate to do so, after a formal discussion and in-depth analysis of the specific implications which that course of action would be likely to have, given the various legal systems in place in the participating Member States ( 75 ) and taking into account the particular features of the different forms of private divorce that are available.

67.

Consequently, I take the view that Regulation No 1259/2010 must be interpreted as meaning that private divorces, that is to say those pronounced without the participation of a court or public authority acting in a capacity involving the creation or alteration of rights, do not fall within its scope.

C.  The detailed rules for the application of Article 10 of Regulation No 1259/2010 in the event of unequal access to divorce (second and third questions)

68.

The following questions are raised, and must therefore be examined, only in the alternative. Both the second question, which is divided into two parts, and the third question, which is expressly linked to the latter of those parts, concern the interpretation of Article 10 of Regulation No 1259/2010, which allows the law of the forum to be applied by way of derogation where the foreign law which would in principle be applicable, pursuant to other provisions of that regulation, either does not permit divorce at all ( 76 ) or provides that access to legal separation or divorce varies, as in the dispute in the main proceedings, depending on the sex of the spouses. ( 77 )

69.

These two questions concern the detailed rules for the application of Article 10, first from the point of view of how the discrimination caused by the foreign law must be examined — in the abstract or in each particular case — and, secondly, from the point of view of the significance to be attached to any consent to the unequal divorce given by the spouse discriminated against.

1.   Examining the discriminatory nature of access to divorce in the abstract for the purposes of applying Article 10 of Regulation No 1259/2010

70.

The second question referred for a preliminary ruling is raised only in the event that the Court answers the first question in the affirmative and thus holds that private divorces such as that at issue in the main proceedings fall within the substantive scope of Regulation No 1259/2010. In the light of the answer in the negative which I am recommending should be given to the previous question, I do not consider there to be any need to answer the second question. ( 78 ) I shall nevertheless make some observations in this regard for the sake of completeness.

71.

By this question, the referring court asks, in essence, whether Article 10 of Regulation No 1259/2010 must be interpreted as meaning that the application of the law of the forum for which it provides must be triggered where the foreign law which would be applicable under Articles 5 or 8 of that regulation ( 79 ) discriminates between the spouses in the abstract (in the light of the content of the foreign law), whether or not it is discriminatory in the particular case (in the light of the circumstances of the instant case). ( 80 )

72.

The German Government proposes an interpretation of Article 10 to the effect that, when it comes to examining the validity of a private divorce pronounced in another State, the law of the court carrying out that examination applies only if, in the particular case, the applicable foreign law causes discrimination detrimental to one of the spouses. Mr Mamisch shares that view.

73.

The French, Hungarian and Portuguese Governments and the Commission, on the other hand, consider it sufficient for the examination of the discriminatory nature of the foreign law for the purposes of applying Article 10 to be carried out in the abstract, without regard to the specific features of the situation of the persons concerned, a view which I share, for all of the reasons set out below.

74.

In the first place, I consider such an interpretation to be consistent with the wording both of Article 10 and of recital 24 of Regulation No 1259/2010.

75.

It is true that Article 10 provides no explicit indication as to how it is to be assessed whether the foreign law which would in principle be applicable is disadvantageous to one of the spouses because of his or her sex. However, there is nothing in that article to suggest that a law providing for unequal access to divorce may be ousted by the law of the forum only where the former law produces discriminatory legal effects in the instant case, as the referring court suggests. As the French Government submits, the wording of that article indicates on the contrary that it is sufficient for the applicable foreign law to be discriminatory by virtue of its content for it to be disapplied by the court of a participating Member State.

76.

To my mind, the proposition put forward by the referring court, as well as by Mr Mamisch and the German Government, is not supported by the content of recital 24 of Regulation No 1259/2010 either. The German-language version of the wording of that recital may be confusing, inasmuch as the opening phrase ‘[i]n certain situations’ is immediately followed by a form of words meaning ‘in which the applicable law … does not grant … equal access to divorce or legal separation’. ( 81 ) The linking words which I have highlighted might suggest that the particular effects of that law must be examined in the light of the specific situation of the spouses in question. ( 82 )

77.

However, the wording adopted in other language versions contains no such a source of ambiguity. ( 83 ) In the light of these, and taking into account the drafting history of Regulation No 1259/2010, ( 84 ) it is my view that the use of that opening phrase is simply a reference to the situations which are described in Article 10 in order to define the circumstances caught by that article, as the Commission states, and cannot be understood as reflecting an intention on the part of the legislature to limit the application of that provision exclusively to dissolutions in which the discrimination in question has actually occurred.

78.

In any event, in accordance with settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the versions established in the other languages. The need for the uniform application and, therefore, interpretation of an EU act precludes that act from being considered in only one of its versions. Consequently, where there is divergence between the various language versions of an EU legislative text, the scope of the provision in question must be assessed by reference to the general scheme and purpose of the rules of which it forms part. ( 85 )

79.

The interpretation which I am proposing that the Court adopt is, in my view, confirmed, in the second place, by the general scheme of Regulation No 1259/2010. More specifically, Article 10 of that regulation must be interpreted in the light of Article 12 thereof, which allows a provision of the law designated by virtue of that instrument to be disregarded where its application would be manifestly incompatible with the public policy of the forum, as well as in the light of recital 25 of that regulation, which relates to the content of Article 12. ( 86 )

80.

In that regard, Mr Mamisch and the German Government contend that, in so far as it constitutes a derogation from the rules designating the law applicable in principle and a particular expression of the general public policy exception referred to above, Article 10 of Regulation No 1259/2010 must be interpreted strictly, and that the existence of discrimination must accordingly be investigated on a case-by-case basis, at the very least when it comes to examining the validity of a divorce which has already been pronounced in another State. ( 87 )

81.

I, like the Hungarian and Portuguese Governments and the Commission, consider it inappropriate to interpret the scope of Article 10 of Regulation No 1259/2010 restrictively by carrying out a ‘teleological reduction’, in the words of the referring court, which has the consequence of requiring the foreign law to be discriminatory not only by reason of its content but also in the light of its actual effects.

82.

A comparison of both the wording and the spirit of those provisions shows that Article 10 cannot be regarded as a mere variation on the public policy reservation set out in Article 12 of that regulation, ( 88 ) even though those provisions are complementary. ( 89 ) After all, Article 10 is formulated in broader terms, since it makes it possible to disapply the foreign law in its entirety rather than simply to stand in the way of an isolated ‘provision’ deemed to be incompatible with the public policy of the forum, as provided for in Article 12. Moreover, unlike Article 12, which gives national courts the freedom to assess on a discretionary basis the existence of an infringement of public policy, Article 10 contains no such discretion, ( 90 ) but is intended to apply quasi-automatically once the court seised establishes that the conditions laid down there are actually met. ( 91 )

83.

That analysis is borne out by the preamble to Regulation No 1259/2010, since recital 25 states that the court seised may avail itself of the exception, provided for in Article 12, enabling it to ‘disregard the application of a provision of foreign law in a given case where it would be manifestly contrary to the public policy of the forum’, ( 92 ) that is to say in the light of the actual effects of that law in the instant case, whereas there is no equivalent expression in recital 24, relating to Article 10. ( 93 )

84.

In the third place, and most importantly, the proposition I am putting forward is, in my opinion, fully consistent with the specific purpose of the provision the interpretation of which is sought. As I see it, Article 10 of Regulation No 1259/2010 is intended to protect a right, namely the right to obtain a divorce under equal conditions for men and women, so fundamental as not to be open to restriction, even under the law which is in principle applicable to the dissolution, irrespective of whether that law is designated by the intent of the persons concerned or by virtue of other provisions of that regulation. ( 94 ). The right to treatment free from discrimination, in particular on grounds of sex, is indeed, as the Portuguese Government submits, one of the fundamental rights enshrined both in the Treaties and in Article 21 of the Charter. ( 95 )

85.

In the light of recital 30 of Regulation No 1259/2010 ( 96 ) and the discussions that led to the adoption of that instrument, ( 97 ) I share the view of the Hungarian Government and the Commission that the EU legislature considered that the discrimination referred to in Article 10, that is to say discrimination based on the spouses’ sex, was so serious as to warrant an absolute rejection of the entirety of the law which would otherwise have had to be applied, with no scope for exceptions on a case-by-case basis. ( 98 ) That purpose would not be achieved if a discriminatory foreign law were allowed to produce its effects in the territory of a participating Member State on the ground that the spouse discriminated against in the abstract was not adversely affected in the particular case.

86.

I would submit, in the fourth place, that, in such a situation, the attainment of the objectives pursued by the legislation of which Article 10 of Regulation No 1259/2010 forms part would be compromised. After all, it follows from recitals 9, 21, 22 and 29 thereof that that regulation is aimed at bringing uniformity to the conflict-of-laws rules in matters of divorce and legal separation with a view to enhancing legal certainty, predictability and flexibility, while at the same time preventing the risk of forum shopping, in international dissolution proceedings and, therefore, facilitating the free movement of persons within the European Union. ( 99 ) If the operation of the derogation provided for in Article 10 were to depend on an evaluation carried out in the particular case by the competent national courts, the aforementioned general objectives would not be achieved, since the law ultimately applicable would be determined after a case-by-case analysis rather than in a systematic, and therefore certain and predictable, fashion.

87.

Finally, the interpretation which I am recommending is consistent with functional considerations. In this regard, it is worth recalling that Regulation No 1259/2010 usually serves to designate the law applicable to divorces involving an international component in cases where a court in one of the participating Member States is presented with a divorce application, ( 100 ) not an application for the recognition of a divorce decision which has already been given, as has occurred in the present case by dint of the implementation of rules of German law. As the French Government notes, in the normal context of applying that instrument, the divorce in question has, by definition, not already been pronounced or registered and it will therefore usually be difficult if not impossible to determine at that preliminary stage whether the application of the law designated pursuant to Article 5 or Article 8 of that regulation will in the particular case have a discriminatory effect, by reason of the sex of one of the spouses, with respect to access to divorce.

88.

To my mind, that issue cannot be resolved by taking the route, suggested by the referring court and the German Government, whereby a specific approach could be adopted ‘at the very least’ where, as in the dispute in the main proceedings, the court is asked to examine the validity of a divorce already pronounced in another State and can therefore cast a retrospective eye on the situation in question. In my view, given the need to interpret that provision of EU law in an objective, general and uniform manner, ( 101 ) it would be unacceptable to have the interpretation of Article 10 of Regulation No 1259/2010 change according to whether the matter at hand involves a divorce application, the normal scenario for the application of that regulation, in which it would be sufficient for abstract discrimination to exist, or the recognition of a divorce decision, a scenario in which that regulation applies by virtue of German law and in which actual discrimination must be established.

89.

In conclusion, the answer to the second question referred for a preliminary ruling should, in my view, be that Article 10 of Regulation No 1259/2010 is to be interpreted as meaning that the law of the forum must apply in cases where the foreign law which would be applicable under Articles 5 or 8 of that regulation gives rise to discrimination in the abstract by virtue of its content, and not only where the latter law leads to discrimination in the particular case by virtue of the circumstances of the instant case.

2.   Irrelevance of any consent given by the spouse discriminated against for the purposes of applying Article 10 of Regulation No 1259/2010

90.

The third question is raised only in the event that the Court finds, in answer to the second question, that the second approach envisaged in that question is the correct one, which is to say that the derogatory operation of the law of the forum pursuant to Article 10 of Regulation No 1259/2010 presupposes that the application of the foreign law designated in principle is discriminatory, in relation to one of the spouses, in the instant case. Since I am proposing the opposite answer to the second question, there will in my view be no need for the Court to rule on the third question. I shall nevertheless present some observations in this regard, in the alternative.

91.

By its final question, the referring court asks the Court to determine whether the fact that the spouse discriminated against consented to the divorce, including by accepting compensation payments, allows the rule laid down in Article 10 of Regulation No 1259/2010 not to be applied in this case. That court states that, in a case where the spouse alleged to have been adversely affected has given her duly registered consent, ( 102 ) it would be inclined not to apply that rule, with the result that the law designated by Article 5 or Article 8 of that regulation would remain applicable. It goes on to say, citing the case-law of the German courts to that effect, that, if Syrian law were applicable, it would have to be assessed, in the particular case, in the light of German public policy.

92.

The German Government endorses that analysis, since it considers that there may in individual cases be no discrimination within the meaning of Article 10 where the spouse who is discriminated against in the abstract by the law applicable under the other provisions of Regulation No 1259/2010 has declared his or her consent to the divorce, provided that that consent was given freely and in such a way as can be established beyond doubt, which it would be for the referring court to verify in the light of the circumstances of the instant case. ( 103 ) Mr Mamisch expressed a similar view at the hearing. ( 104 )

93.

The French, Hungarian and Portuguese Governments and the Commission, on the other hand, take the opposite view, as do I, for the following reasons.

94.

In the first place, I would submit, like the Commission, that the wording of Article 10 of Regulation No 1259/2010 does not contain any reservation that would allow the courts of the participating Member States to disregard the exception set out in that provision in cases where the application of the foreign law applicable in principle, which is by definition intrinsically discriminatory, is not in practice prejudicial to the spouse discriminated against.

95.

Moreover, it follows from the wording of Article 10, as well as from recital 24 of Regulation No 1259/2010, that the discriminatory factor justifying the derogatory application of the law of the forum is a lack of ‘equal access to divorce or legal separation’. ( 105 ) The French Government rightly highlights the fact that it is important not to confuse a spouse’s acceptance of the consequences of a divorce procedure, on the one hand, and that same spouse’s acceptance of the principle of divorce, on the other hand. ( 106 ) In my view, the latter situation alone is described by the expression used in the abovementioned provisions. That analysis seems to me to be borne out by the fact that that regulation is intended to cover only the dissolution of marriage itself, expressly excluding from its scope as it does legal situations which arise not at the start but in the course or even at the end of a divorce procedure, such as the property consequences of marriage or maintenance obligations. ( 107 )

96.

So it is, in my opinion, that the third question referred for a preliminary ruling is based on a false premiss, in that it refers to ‘the fact that the spouse discriminated against consents to the divorce — including by duly accepting compensation’. ( 108 ) After all, that form of words — wrongly, in my view — equates the established acceptance of one of the effects of the divorce ( 109 ) with the supposed acceptance of the principle of the divorce itself, ( 110 ) even though those events occurred at quite different stages of the divorce proceedings. ( 111 )

97.

It is to be noted in this regard that the fact, in the dispute in the main proceedings, that Ms Sahyouni opposed the decision granting recognition in Germany to the divorce pronounced in Syria ( 112 ) strikes me as indication that, notwithstanding the written statement by which she declared her acceptance of the compensation paid by her husband, it was not her intention to consent to the divorce itself.

98.

It is true that, in principle, it falls exclusively to the court before which that dispute is pending to assess the facts connected with the existence and implications of any consent given by one of the parties. In my view, however, it is necessary to provide that court with some clarification as to the factors which it should take into account when applying Article 10 of Regulation No 1259/2010, as it may be called on upon to do. ( 113 )

99.

In any event, even assuming that that court takes it as read that the wife discriminated against gave her consent to the divorce, such a finding cannot have the effect of rendering inapplicable the rule of law laid down in that article.

100.

After all, the approach envisaged by the referring court in its final question is, in the second place, not consistent with the objectives pursued by Regulation No 1259/2010, and more particularly Article 10 thereof.

101.

In this connection, the Commission has submitted, in its written observations and when presenting oral argument, that the rule contained in Article 10 performs a protective function for the benefit of the spouse discriminated against, as the party in the position of weakness, which would be jeopardised if that rule were optional. There would, after all, be a risk that that party would agree to waive the application of the law of the forum, perhaps without even knowing that this is more favourable. ( 114 )

102.

It is clear from the documents preparatory to the adoption of Regulation No 1259/2010 that the principle of the autonomous will of the parties, which is laid down by that instrument, was circumscribed by the introduction of special guarantees aimed both at ensuring respect for the ‘common values of the European Union’ are protected ( 115 ) and at protecting the weaker spouse. ( 116 ) The derogation provided for in Article 10 would be rendered ineffective, and the aforementioned objectives would not be attained, if the spouse discriminated against could agree to lose the benefit of it by consenting to be the subject of a divorce which is unequal, whether on account of coercion on the part of her partner, because of her personal desire to remove herself from a situation of conflict or through simple ignorance of her rights.

103.

In the third place, an examination of the scheme of which Article 10 of Regulation No 1259/2010 forms part supports the interpretation, both literal and teleological, which I am proposing should be adopted. That article guarantees the primacy of the requirements which it contains over both the law chosen by the spouses, under Article 5 of that regulation, and the law applicable in the absence of any choice on their part, under Article 8 thereof. As the Commission submitted, Article 10 becomes applicable as soon as the objective conditions for its application are fulfilled and allows the law of the forum to take precedence even in cases where the discriminatory law had been expressly designated by the parties. The foregoing supports the inference that the rule laid down in that article, which is based on respect for the values considered to be fundamental, was intended to be mandatory and, therefore, in accordance with the wish of the EU legislature, to fall outside the ambit of the freedom to dispose of their rights enjoyed by the persons concerned. ( 117 )

104.

I therefore take the view that, if it transpires that, by virtue of the law applicable pursuant to Article 5 or Article 8 of Regulation No 1259/2010, the spouse subjected to discrimination on grounds of sex consented to the divorce, such consent cannot have the effect of precluding the application of the law of the forum pursuant to Article 10 of that regulation, where the conditions laid down in the latter article are fulfilled. In other words, the third question referred for a preliminary ruling should, in my opinion, be answered in the negative in the event that the Court rules on that claim in the alternative.

V. Conclusion

105.

In the light of the foregoing considerations, I propose that the Court’s answers to the questions referred for a preliminary ruling by the Oberlandesgericht München (Higher Regional Court, Munich, Germany) should be as follows:

(1)

The provisions of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, in particular Article 1 thereof, must be interpreted as meaning that divorces pronounced without a decision having the effect of creating or altering rights which is issued by a court or other public authority, such as a divorce resulting from a unilateral declaration of a spouse which is registered by a religious court, do not fall within the scope of that regulation.

(2)

In the alternative, in the event that the Court finds that such private divorces fall within the scope of Regulation No 1259/2010, Article 10 thereof should be interpreted as meaning, first, that the law of the forum must apply where the foreign law designated pursuant to Article 5 or Article 8 of that regulation gives rise in the abstract to discrimination based on the spouses’ sex, and, secondly, that the fact that the spouse discriminated against may have consented to the divorce is irrelevant from the point of view of the applicability of that article.


( 1 ) Original language: French.

( 2 ) OJ 2010 L 343, p. 10. This act is usually known as the ‘Rome III Regulation’.

( 3 ) EU:C:2016:343.

( 4 ) The principal grounds of that decision are summarised in point 26 of the present Opinion.

( 5 ) That regulation, which entered in to force on 30 December 2010, has, since 21 June 2012, been applicable in the Member States which have participated in that cooperation from the outset, which include the Federal Republic of Germany. At present, it is applicable in Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. From 11 February 2018, it will also be applicable in Estonia [see Commission Decision (EU) 2016/1366 of 10 August 2016 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ 2016 L 216, p. 23].

( 6 ) OJ 2003 L 338, p. 1.

( 7 ) The text is available in German and English at the following internet address: http://www.gesetze-im-internet.de/famfg/index.html

( 8 ) The Gesetz zur Anpassung der Vorschriften des Internationalen Privatrechts an die Verordnung (EU) Nr. 1259/2010 und zur Änderung anderer Vorschriften des Internationalen Privatrechts (Law adapting the provisions of private international law to Regulation (EU) No 1259/2010 and amending other provisions of private international law) of 23 January 2013 (BGBl. 2013 I, p. 101), which entered into force on 29 January 2013.

( 9 ) EU:C:2016:343, paragraphs 9 to 14.

( 10 ) At an exchange rate of approximately EUR 0.75 per 1 USD on 12 September 2013.

( 11 ) More specifically, under Article 5(1) of the EGBGB.

( 12 ) EU:C:2016:343, paragraphs 18 to 33.

( 13 ) See, in particular, judgments of 31 January 2017, Lounani (C‑573/14, EU:C:2017:71, paragraph 56), and of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraph 28).

( 14 ) See, in particular, order of 16 April 2008, Club Náutico de Gran Canaria (C‑186/07, not published, EU:C:2008:227, paragraph 19), and judgment of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 28).

( 15 ) EU:C:2016:343.

( 16 ) See paragraph 19 of the order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343).

( 17 ) The list of which is given in footnote 5 of the present Opinion.

( 18 ) On the subject of Regulation No 2201/2003, the Court recalled that its scope is restricted to recognition of decisions delivered by courts of other Member States (see paragraphs 20 to 22 of the order of 12 May 2016, Sahyouni, C‑281/15, EU:C:2016:343).

( 19 ) Judgment of 18 October 1990 (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36 and 37).

( 20 ) See, in particular, the decisions cited in paragraphs 24 to 29 of the order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343).

( 21 ) See also my Opinion in Europamur Alimentación (C‑295/16, EU:C:2017:506, points 43 to 44).

( 22 ) See, in particular, judgments of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 45 et seq.); of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraph 21 et seq.); order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraph 27 et seq.); and judgments of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 53 et seq.), and of 5 April 2017, Borta (C‑298/15, EU:C:2017:266, paragraph 33 and 34).

( 23 ) See, to that effect, judgment of 7 January 2003, BIAO (C‑306/99, EU:C:2003:3, paragraphs 90 et seq.).

( 24 ) See judgment of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 23).

( 25 ) See, in particular, order of 30 January 2014, C. (C‑122/13, EU:C:2014:59, paragraph 15), and judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraphs 54 and 55).

( 26 ) See, in particular, order of 30 June 2011, Wamo (C‑288/10, EU:C:2011:443, paragraph 26 et seq.); judgments of 13 June 2013, Kostov (C‑62/12, EU:C:2013:391, paragraphs 24 and 25); of 21 September 2016, Etablissements Fr. Colruyt (C‑221/15, EU:C:2016:704, paragraph 15); and of 4 May 2017, HanseYachts (C‑29/16, EU:C:2017:343, paragraph 34).

( 27 ) See judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 41 and 42), and of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 33).

( 28 ) See, in particular, judgments of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 28 et seq.); of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 51); and of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraph 33); and orders of 3 September 2015, Orrego Arias (C‑456/14, not published, EU:C:2015:550, paragraphs 23 to 25); and of 28 June 2016, Italsempione — Spedizioni Internazionali (C‑450/15, not published, EU:C:2016:508, paragraphs 22 and 23).

( 29 ) Thus, in the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraphs 53 to 57), the Court held that it had no jurisdiction on the grounds that the ‘EU measure [in question] expressly provide[d] a case of exclusion from its scope’ in the circumstances of the case in the main proceedings and that ‘it cannot be stated or presumed that there was an interest of the Union that, in an area excluded by the EU legislature from the scope of the measure which it adopted, there should be a uniform interpretation of the provisions of that measure’.

( 30 ) See, in particular, judgment of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 21).

( 31 ) See, inter alia, judgment of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 18).

( 32 ) See, in particular, judgments of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraph 25); of 14 January 2016, Ostas celtnieks (C‑234/14, EU:C:2016:6, paragraphs 19 to 21); and of 5 April 2017, Borta (C‑298/15, EU:C:2017:266, paragraph 32).

( 33 ) In paragraph 30 of the order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343), the Court noted that the referring court had merely asserted that ‘the President of the Oberlandesgericht München (Higher Regional Court, Munich) held that the divorce’s eligibility for recognition [was] governed by Regulation No 1259/2010, which also [applied] to private divorces’.

( 34 ) It should be noted that the term ‘recognition’ used in this connection in the order for reference must understood in German law as referring to the examination of the legality of a private divorce pronounced in another State — for the purposes of which analysis, it is necessary first of all to resolve a conflict of laws in order to determine the legal regime applicable to that divorce — and not as having the same meaning as the term used in Regulation No 2201/2003, which defines the acceptance in the legal system of one Member State of a decision pronounced by a court of another Member State.

( 35 ) See points 37 and 38 of the present Opinion.

( 36 ) See points 34 to 36 of the present Opinion.

( 37 ) The order for reference indicates that Syrian law recognises such consent, as well as declaratory authorisation by a court, by referring to Article 85 et seq. of Syrian Law No 59 of 17 September 1953, as amended by Law No 34 of 31 December 1975 on Personal Status, which are reproduced in Bergmann, A., Ferid, M., and Henrich, D., Internationales Ehe- und Kindschaftsrecht, Verlag für Standesamtswesen, Francfort, 1981, vol. 17, under ‘Syria’, p. 11 et seq.

( 38 ) See point 15 of the present Opinion.

( 39 ) See point 16 of the present Opinion.

( 40 ) The referring court states that it shares the predominant view, although it points out that there are some legal commentators and courts in Germany that consider Regulation No 1259/2010 to be applicable only where a court of a participating Member State is itself adjudicating on a divorce petition, but not in a procedure for the recognition of a divorce already pronounced abroad.

( 41 ) See the judgment of the Bundesgerichtshof (Federal Court of Justice, Germany) of 28 May 2008 (XII ZR 61/06, paragraph 36), available at the following web address: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr= 44298&pos= 07anz= 1

( 42 ) See points 17 and 18 of the present Opinion.

( 43 ) A substantive review is considered futile in such circumstances, on the ground that a foreign court or administrative authority does not pronounce a divorce until after it has itself examined the legal conditions required for that purpose.

( 44 ) This public form of processing foreign divorces is called ‘procedural recognition’ (‘verfahrensrechtliche Anerkennung’ in German).

( 45 ) The review carried out by the German courts does not go any further than [examining the divorce by reference to] the obstacles to recognition listed in that Paragraph, which include infringement of German public policy.

( 46 ) As defined in point 4 of the present Opinion.

( 47 ) In German law, such divorces warrant a stricter review that goes beyond an examination of the stated grounds for refusal because there is no guarantee of legitimacy equivalent to that provided by the participation of a public authority acting in a capacity involving the creation or alteration of rights.

( 48 ) This approach to foreign private divorces is known as ‘recognition based on conflict-of-laws rules’ (‘kollisionsrechtliche Anerkennung’ in German), even though the use of the term ‘recognition’ is, in my view, somewhat misleading (see also footnote 34 of the present Opinion).

( 49 ) The explanatory memorandum to the draft law of 23 January 2013, referred to in point 18 of the present Opinion, states that ‘only the Court of Justice of the European Union may give a binding interpretation of Regulation [No 1259/2010]. It is therefore that court which is primarily responsible for clarifying points of uncertainty. It is nonetheless necessary to draw attention to a number of points which may be important for the purposes of interpreting that legal act from a Germany point of view[.] Regulation [No 1259/2010] also applies to so-called private divorces. Although its enacting terms do not expressly provide for such an extensive scope of application, that regulation is nonetheless intended, in accordance with recital 9 thereof, to establish a comprehensive framework for the law applicable to divorce and legal separation. Private divorce is not listed among the matters to which that regulation is not to apply in accordance with Article 1(2) thereof. Article 4, which provides for the universal application of that regulation, imposes no restrictions on legal systems which permit private divorces. The only reason Regulation [1259/2010] takes as its basis at certain points in the text the “normal” scenario of divorce and judicial separation is that private divorce is — so far as it is possible to tell — unknown in the legal systems of the participating Member States’ (see Bundestag Drucksache No 17/11049 of 17 October 2012, p. 8, available at the following web address: http://dip21.bundestag.de/dip21/btd/17/110/1711049.pdf).

( 50 ) Even though some authors have suggested remedies to the ‘legal loophole’ said by the referring court to have been created by the removal of that rule (that is to say, the application by analogy either of Articles 14 and 17 of the previous version of the EGBGB, or of the provisions of Regulation No 1259/2010), there is still, in my view, considerable uncertainty in German law as a result of its repeal (see, in particular, Helms, T., ‘Reform des internationales Scheidungsrechts durch die Rom III-Verordnung’, FamRZ, 2011, No 22, p. 1765 et seq., and Pika, M. and Weller, M.-P., ‘Privatscheidungen zwischen Europäischem Kollisions- und Zivilprozessrecht’, IPRax, 2017, No 1, p. 65 et seq.).

( 51 ) This, then, I would argue, is a rule of law derived from case-law rather than simply from an assumed practice on the part of an administrative authority, such as that in connection with which the Court declined jurisdiction in the order of 28 June 2016, Italsempione — Spedizioni Internazionali (C‑450/15, not published, EU:C:2016:508, paragraphs 22 and 23), on the ground that ‘the description of a national practice of the competition authority cannot be considered as a direct and unconditional reference to EU law’.

( 52 ) Such as, in particular, in the case referred to in footnote 29 of the present Opinion.

( 53 ) For reasons which will be set out in point 52 et seq. of the present Opinion.

( 54 ) Within the meaning of the case-law referred to in point 31 of the present Opinion.

( 55 ) It being recalled that it is common ground that the provisions of Regulation No 1259/2010 are not directly applicable to the present case (see points 32 and 33 of the present Opinion).

( 56 ) See point 34 et seq. of the present Opinion.

( 57 ) See point 32 et seq. of the present Opinion.

( 58 ) See point 35 of the present Opinion.

( 59 ) That proposition is also supported by some German legal commentators, who do not, however, appear to be in the majority (see, in particular, Wiese, V., ‘Article 1 [Rome III], Scope’, in Rome Regulations, Commentary, under the direction of G.-P. Calliess, Kluwer Law International, Alphen aan den Rijn, 2nd edition, 2015, p. 861, paragraph 12, as well as the commentary on Article 1 of Regulation No 1259/2010 by Corneloup, S., in Droit européen du divorce, Travaux du Centre de recherche sur le droit des marchés et des investissements internationaux, vol. 39, LexisNexis, Paris, 2013, pp. 497 to 499, paragraphs 9 and 10).

( 60 ) See, in particular, judgments of 9 November 2016, Wathelet (C‑149/15, EU:C:2016:840, paragraph 28), and of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 42).

( 61 ) See Article 1(2)(c) and the second sentence of recital 10 of that regulation.

( 62 ) That is to say, ‘all the authorities in the participating Member States with jurisdiction in the matters falling within the scope of this Regulation’. According to recital 13, Regulation No 1259/2010 ‘should apply irrespective of the nature of the court or tribunal seised’.

( 63 ) See, in particular, Article 1(2), Article 5(2) and (3), Articles 8 and 13 and Article 18(1) of that regulation.

( 64 ) According to some authors, ‘both courts in a technical sense and administrative authorities, not to mention notaries, will have to apply the new rules, which will accordingly cover various forms of divorce, ranging from a judicial proceeding to an act of private intent which has simply been certified or an exclusively private divorce. What matters is the purpose not the practicalities of the procedure. Purely religious procedures, however, will remain automatically excluded from the scope of the legislation, since, in these cases, the authority does not act on behalf of the participating Member State, unless the former has been established by the latter’ (see Hammje, P., ‘Le nouveau règlement [No 1259/2010]’, Revue critique de droit international privé, 2011, p. 291 et seq., paragraph 7).

( 65 ) Since Article 10 forms the subject of the other questions submitted to the Court in the present case, I shall look more extensively at under that heading (see point 68 et seq. of the present Opinion).

( 66 ) Subject to the operation of the exceptions provided for in Articles 10 and 12 of Regulation No 1259/2010 (on the mechanisms laid down in those articles, see point 79 et seq. of the present Opinion).

( 67 ) It should be recalled that the legislative process that led to the adoption of Regulation No 1259/2010 had originally started out as a recasting of Regulation 2201/2003 [Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters, COM(2006) 399].

( 68 ) See recital 13 of Regulation No 1259/2010 (‘where applicable, a court should be deemed to be seised in accordance with Regulation … No 2201/2003’) and Article 2 thereof (which provides that Regulation No 1259/2010 ‘shall not affect the application of Regulation … No 2201/2003’).

( 69 ) As defined in Article 2(1) of Regulation No 2201/2003 (‘all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1’) in terms equivalent to those used in Article 3(2) of Regulation No 1259/2010 (cited in footnote 62 of the present Opinion). It is worth noting here that, as part of the work that is under way to recast Regulation No 2201/2003, which is looking principally at the provisions of that regulation which deal with parental responsibility, the legislature intends to define the concept of ‘court’ of a Member State within the meaning of that regulation in such a way as to have it refer more clearly in future to a ‘judicial or administrative authority’ of a Member State [see the amendments to Article 2 of Regulation No 2201/2003 put forward by the Commission in its Proposal for a Council regulation of 30 June 2016, COM(2016) 411 final, p. 35].

( 70 ) See, in particular, Article 1(1)(a), Article 2(1) and (4), Article 19(2) and (3) and Article 21(1) of Regulation No 2201/2003.

( 71 ) See the last sentence of the extract from the parliamentary document cited in footnote 49 of the present Opinion.

( 72 ) The list of Member States which initially participated in the enhanced cooperation in this field is set out in recital 6 of Regulation No 1259/2010.

( 73 ) It is important not to confuse private divorces, such as that in the main proceedings, with non-judicial divorces in which the court is replaced by another public authority (see in this regard the contributions of Bernand, Y. and Ferrand, F. in La rupture du mariage en droit comparé, under the direction of F. Ferrand and H. Fulchiron, vol. 19 of the collection Droit comparé et européen, Société de législation comparée, Paris, 2015, p. 49 and pp. 76 to 78).

( 74 ) See points 59 to 64 of the present Opinion.

( 75 ) Caution is all the more necessary given the very different approaches which the participating Member States have been found to take when it comes to accepting foreign decisions involving repudiation (see the contribution by Bidaud-Garon, C., in La rupture du mariage en droit comparé, cited above in footnote 73 of the present Opinion, pp. 244 and 245).

( 76 ) This first scenario will rarely be encountered in practice, as few States prohibit divorce (see the examples cited by Devers, A., and Farge, M., ‘Le nouveau droit international privé du divorce — À propos du règlement Rome III sur la loi applicable au divorce’, Droit de la famille, 2012, No 6, étude 13, paragraph 28), and does not form the subject of the present dispute in the main proceedings, although it must nevertheless be borne in mind in the interpretation of Article 10 in the present case.

( 77 ) In referring to Articles 85 and 105 of the abovementioned Syrian law (footnote 37 of the present Opinion), the national court states that, to the extent that Syrian law is applicable in the present case, it does not give the wife equal access to divorce inasmuch as, even though it recognises, in addition to divorce by mutual consent, judicial divorce initiated by the wife, the fact remains that the latter form of divorce is expressly subject to legal action and other conditions — namely that her husband should be suffering from an illness or medical condition — whereas the husband enjoys an unlimited right to unilateral divorce.

( 78 ) The Belgian Government thus refrained from analysing the second and third questions referred for a preliminary ruling in the light of its proposed reply to the first question raised.

( 79 ) It should be recalled that the law designated by Regulation No 1259/2010 must apply even if it is the law of a Member State not participating in the enhanced cooperation or the law of a third State.

( 80 ) This is separate from the issue of whether the assessment of the discriminatory nature of the foreign law must be carried out formally, from the point of view of whether there is strict equality between the spouses’ rights of access to divorce, or substantively, from the point of view simply of whether those rights are equivalent.

( 81 ) ‘In bestimmten Situationen, in denen das anzuwendende Recht ...’ (emphasis added). An equivalent form of words appears, in particular, in the Danish-language version: ‘I visse situationer, hvor den valgte lov ...’ (emphasis added).

( 82 ) On this issue, see Lein, E., ‘Article 10 [Rome III], Application of the Law to the Forum’, in Rome Regulations, Commentary, cited above in footnote 59, paragraph 11 and note 24.

( 83 ) See, in particular, the Spanish-language version: ‘En algunas situaciones es oportuno, … por ejemplo cuando la ley aplicable ...’; the English-language version: ‘In certain situations, such as where the applicable law ...’; the French-language version: ‘Dans certaines situations, … comme lorsque la loi applicable ...’; the Portuguese-language version: ‘Em certas situações, … quando a lei aplicável ...’; and the Swedish-language version: ‘I vissa situationer, till exempel när tillämplig lag ...’ (emphasis added).

( 84 ) Article 10 of that regulation was originally intended as a direct link to the provisions designating the law applicable in principle to divorce and legal separation, and more specifically to the rule laid down in Article 8 (concerning the law applicable in the absence of a choice by the parties), the current Article 9 (concerning the conversion of a legal separation into a divorce) not having appeared in the original version. Similarly, recital 24 of that regulation (which relates to Article 10) came just after the current recital 21 (which relates to Article 8), and it is in the light of its former position that the phrase ‘[i]n certain situations’, which appears at the beginning of that recital, must be understood as attaching a limit to the principles which then preceded it, an analysis which is borne out by the term ‘nevertheless’ which has been retained in recital 24 (see recitals 19 and 20 and Articles 4 and 5 of the proposal for a regulation submitted by the Commission on 24 March 2010 [COM(2010) 105 final], revised on 16 April 2010; and Lein, E., cited above in footnote 82, point 11 in fine).

( 85 ) See, in particular, judgments of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraphs 30 to 32); of 26 April 2017, Popescu (C‑632/15, EU:C:2017:303, paragraph 35); and of 8 June 2017, Sharda Europe (C‑293/16, EU:C:2017:430, paragraph 21).

( 86 ) Recital 25 states that ‘considerations of public interest should allow courts in the Member States the opportunity in exceptional circumstances to disregard the application of a provision of foreign law in a given case where it would be manifestly contrary to the public policy of the forum. However, the courts should not be able to apply the public policy exception in order to disregard a provision of the law of another State when to do so would be contrary to the Charter of Fundamental Rights of the European Union [“the Charter”], and in particular Article 21 thereof, which prohibits all forms of discrimination’.

( 87 ) The German Government submits that, in that particular situation, there is absolutely no need to apply the law of the forum in full in derogation from the foreign divorce law, as provided for in Article 10, which is formulated for the general case of a divorce pronounced by a judicial decision having the effect of creating or altering rights, where the abstract discrimination perpetrated by that law has had no actual impact on the instant case.

( 88 ) Bearing in mind that those two provisions are separated by another provision, Article 11, which excludes renvoi to the rules of private international law of the State whose law has been designated.

( 89 ) The public policy exception provided for in Article 12 of Regulation No 1259/2010 may come into play where the conditions for the application of Article 10 are not met (in particular, when the discrimination at issue is based on a criterion other than the sex of the spouses).

( 90 ) See to that effect Devers, A., and Farge, M., cited above in footnote 76, paragraph 28.

( 91 ) The fact that Article 10 applies in the abstract in this way does not mean, however, that national courts are deprived of the power, or rather exempt from the duty, to verify that the law designated under other provisions of Regulation No 1259/2010 is genuinely discriminatory by virtue of its content. Thus, it cannot be presumed that Islam-based laws must as a general rule be disapplied on the basis of that article (see in this regard Möller, L.-M., ‘No Fear of Talâq: Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation’, Journal of Private International Law, 2014, vol. 10, No 3, pp. 461 to 487).

( 92 ) Emphasis added.

( 93 ) See to that effect Lein, E., cited above in footnote 82, paragraph 25 and the legal literature cited by the author. I take the view that the last sentence of recital 24 (‘this, however, should be without prejudice to the public policy clause’) reinforces the distinction drawn between the rule laid down in Article 10 of Regulation No 1259/2010 and the public policy exception contained in Article 12.

( 94 ) It is clear from the justification given for the very first proposal that led to the adoption of Article 10 that the legislature’s initial objective was to ‘deal with the problems encountered by certain women from third countries who wish to obtain a separation or divorce in a Member State’ by enabling them to access such a dissolution notwithstanding the applicability of the law of the State of which they are nationals [see amendments 25 and 30 proposed in the report of the European Parliament of 21 October 2008, A6-0361/2008, on the proposal for a regulation COM(2006) 399, op. cit. footnote 67].

( 95 ) These, moreover, are values common to other European States, given that the principle of equality between spouses upon dissolution of a marriage is set out in Article 5 of Protocol No 7 annexed to the Convention for the Protection of Human Rights and Fundamental Freedoms, which was signed within the Council of Europe on 22 November 1984.

( 96 ) Recital 30 states that Regulation No 1259/2010 ‘respects fundamental rights and observes the principles recognised by the [Charter], and in particular by Article 21 thereof, which states that any discrimination based on any ground such as sex … shall be prohibited’ and ‘should be applied by the courts of the participating Member States in observance of those rights and principles’.

( 97 ) See the proposal for a regulation COM(2010) 105 final, points 5.3 and 6 of the explanatory memorandum (in particular the comments on Articles 2, 3 and 5); recitals 14, 20 and 24; and Article 3(1) and Article 5. In particular, the commentary on Article 2 of that proposal explicitly states that ‘safeguard clauses have been introduced to prevent the application of foreign laws on divorce or legal separation which are incompatible with the common values of the European Union’ (emphasis added).

( 98 ) On the concerns expressed, more particularly by the Scandinavian Member States, during the drafting of that article and the inferences to be drawn from them with respect to its interpretation, see Möller, L.-M., cited above in footnote 91, pp. 467 to 470.

( 99 ) See also proposal for a regulation COM(2010) 105 final, points 2 and 5.3 of the explanatory memorandum, where it is noted that the simplification introduced will benefit both spouses and practitioners.

( 100 ) It is true that replacing a foreign law in its entirety by the law of the forum, pursuant to Article 10 of that regulation, may be problematic inasmuch as it may have the consequence of precluding the recognition in a third State with which the parties have closer ties of a divorce decision pronounced in a participating Member State (see in this regard, in particular, Lein, E., cited above in footnote 82, paragraph 27 and the legal literature cited). The Commission rightly points out, nonetheless, that it is for the legislature to resolve that issue, which cannot be remedied, in circumvention of the clear wording of Article 10, by linking the latter to Article 12 of that regulation.

( 101 ) This assumes that the interpretation given by the Court is valid irrespective of the circumstances of the dispute in the main proceedings, the particular features of the legal situation under consideration or the specific provisions of the law of the Member State in which the court seised is situated. It is worth recalling in this regard that, according to recital 9, Regulation No 1259/2010 is intended to ‘create a clear, comprehensive legal framework’ in its area of application, and that Chapter II of that regulation, which contains Article 10, is entitled ‘Uniform rules on the law applicable to divorce and legal separation’ (emphasis added).

( 102 ) According to the referring court, the fact, in the present case, that the wife declared, in a signed written statement, that she had received financial compensation and that her husband was released from his obligations under the marriage contract, could be regarded as an act of consent on her part to the divorce pronounced.

( 103 ) The German Government stated that, in its view, sufficient freedom to give consent may be lacking either where the spouse favoured by the applicable law has used his or her position of strength to coerce the other spouse into accepting the compensation payment, or where the spouse discriminated against in the abstract consented without being fully aware of the implications of his or her decision or on the basis of insufficient information, a matter which it is for the court seised to examine.

( 104 ) Mr Mamisch submitted that Article 10 should not be applied to the detriment of the person benefiting from protection against discrimination, which would be the case, in his view, if a repudiation could not be recognised even though the wife in question had freely agreed to such a dissolution because she wished to remarry.

( 105 ) Emphasis added.

( 106 ) The French Government infers from this that the fact that the spouse discriminated against agreed to receive a compensation payment does not constitute evidence of that spouse’s intention to consent to the divorce or, therefore, of the existence of a divorce procedure which complies with the principle of the equal treatment of spouses under Article 10.

( 107 ) See Article 1(2)(e) and (g) of that regulation, as well as recital 10.

( 108 ) Emphasis added.

( 109 ) In the present case, the payment of financial compensation on 12 September 2013.

( 110 ) Which, in this instance, took the form of a repudiation pronounced by the husband and then registered by a religious court on 19 and 20 May 2013 respectively.

( 111 ) The fact that the referring court equates the one event with the other is perhaps explained by the circumstance that, in accordance with the German conflict-of-laws rules, such a payment of money could be governed by the law applicable to the divorce itself rather than that applicable to its legal effects, if it were regarded as compensation rather than as a post-divorce payment of maintenance to the spouse (see to that effect L.-M., cited above in footnote 91, p. 476 and note 53).

( 112 ) Referred to in point 22 of the present Opinion.

( 113 ) It should be recalled that the Court may provide guidance based on both the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, in particular, judgment of 5 June 2014, I, C‑255/13, EU:C:2014:1291, paragraph 55).

( 114 ) In this regard, the Commission draws an analogy with other areas of EU law (in particular, consumer protection) where such rules are made mandatory specifically in order to ensure that the weaker party, who is likely to be put under pressure by the stronger party, does not waive the rights guaranteed for him and thereby lose the protection which EU law seeks to confer on him.

( 115 ) See also point 84 et seq. of the present Opinion.

( 116 ) See, in particular, proposal for a regulation COM(2010) 105 final [points 2.2, 2.3 in fine, 5.3 and 6 (in particular the commentaries on Articles 2, 3 and 5) of the explanatory memorandum; recitals 14, 20 and 24; Article 3(1) and Article 5], and the Opinion of the European Economic and Social Committee of 29 April 2010 (OJ 2011 C 44, p. 167, points 3.3 and 3.4).

( 117 ) To the same effect, the ECtHR, in its judgment of 22 March 2012, Konstantin Markin v. Russia (ECLI:CE:ECHR:2012:0322JUD003007806, § 150), points up the fact that, ‘in view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds can be accepted as it would be counter to an important public interest’.

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