Case C-68/07

Kerstin Sundelind Lopez

Miguel Enrique Lopez Lizazo

(Reference for a preliminary ruling from the Högsta domstolen)

(Regulation (EC) No 2201/2003 – Articles 3, 6 and 7 – Jurisdiction – Recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Jurisdiction in divorce proceedings – Respondent not a national or a resident of a Member State – National rules providing for exorbitant jurisdiction)

Judgment of the Court (Third Chamber), 29 November 2007

Summary of the Judgment

Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in divorce proceedings

(Council Regulation No 2201/2003, Arts 3(1)(a), 6, 7(1) and 17)

Articles 6 and 7 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

According to the clear wording of Article 7(1) of Regulation No 2201/2003, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation that jurisdiction is to be governed, in each Member State, by the laws of that State. Moreover, according to Article 17 of Regulation No 2201/2003, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction.

That interpretation is not affected by Article 6 of Regulation No 2201/2003, since the application of Articles 7(1) and 17 of that regulation depends not upon the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation, the objective of which is to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, Regulation No 2201/2003 applies also to nationals of non‑Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction.

(see paras 18-19, 21, 25-26, 28, operative part)

JUDGMENT OF THE COURT (Third Chamber)

29 November 2007 (*)

In Case C‑68/07,

REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Högsta domstolen (Sweden), made by decision of 7 February 2007, received at the Court on 12 February 2007, in the proceedings

Kerstin Sundelind Lopez

Miguel Enrique Lopez Lizazo,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J.N. Cunha Rodrigues, J. Klučka, A. Ó Caoimh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the German Government, by M. Lumma, acting as Agent,

– the Italian Government, by I.M. Braguglia, acting as agent, and W. Ferrante, avvocato dello Stato,

– the Finnish Government, by J. Himmanen, acting as Agent,

– the Commission of the European Communities, by M. Wilderspin and P. Dejmek, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 3, 6 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2000 L 338, p. 1), as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, as regards treaties with the Holy See (OJ 2004 L 367, p. 1) (‘Regulation No 2201/2003’).

2 The reference was made in divorce proceedings brought by Mrs Sundelind Lopez against Mr Lopez Lizazo.

Legal context

Community legislation

3 According to Recitals 4, 8 and 12 in the preamble to Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160, p. 19), repealed with effect from 1 March 2005 by Regulation No 2201/2003:

‘(4) Differences between certain national rules governing jurisdiction and enforcement hamper the free movement of persons and the sound operation of the internal market. There are accordingly grounds for enacting provisions to unify the rules of conflict of jurisdiction in matrimonial matters and in matters of parental responsibility so as to simplify the formalities for rapid and automatic recognition and enforcement of judgments.

…

(8) The measures laid down in this Regulation should be consistent and uniform, to enable people to move as widely as possible. Accordingly, it should also apply to nationals of non-member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in the Regulation.

…

(12) The grounds of jurisdiction accepted in this Regulation are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction; the decision to include certain grounds corresponds to the fact that they exist in different national legal systems and are accepted by the other Member States.’

4 Article 3(1) of Regulation No 2201/2003, entitled ‘General Jurisdiction’, states:

‘1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

(a) in whose territory:

– the spouses are habitually resident, or

– the spouses were last habitually resident, in so far as one of them still resides there, or

– the respondent is habitually resident, or

– in the event of a joint application, either of the spouses is habitually resident, or

– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.’

5 Articles 4 and 5 of the regulation lay down the rules of jurisdiction regarding counterclaims and the conversion of legal separation into divorce respectively.

6 Article 6 of that same regulation, entitled ‘Exclusive nature of jurisdiction under Articles 3, 4 and 5’, provides:

‘A spouse who:

(a) is habitually resident in the territory of a Member State; or

(b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States;

may be sued in another Member State only in accordance with Articles 3, 4 and 5.’

7 Under Article 7 of Regulation No 2201/2003, entitled ‘Residual jurisdiction’:

‘1. Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that State.

2. As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his “domicile” within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.’

8 Article 17 of the regulation, entitled ‘Examination as to jurisdiction’, provides:

‘Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.’

National legislation

9 The Law on certain international legal relationships concerning marriage and guardianship (Lag (1904:26 s. 1) om vissa internationella rättsförhållande rörande äktenskap och förmynderskap, SFS 2005, No 431) provides, in Paragraph 2(2) of its Chapter 3, that matrimonial cases may be heard by the Swedish courts if the plaintiff is a Swedish citizen and is resident in Sweden or has been resident there after attaining the age of 18.

The dispute in the main proceedings and the question referred for a preliminary ruling

10 Mrs Sundelind Lopez, a Swedish national, is married to Mr Lopez Lizazo, a Cuban national. When living together, they were resident in France. Currently, Mrs Sundelind Lopez is still resident in France but her husband is resident in Cuba.

11 Acting on the basis of the Swedish legislation, Mrs Sundelind Lopez petitioned the Stockholms tingsrätt (District Court, Stockholm) (Sweden) for divorce. Her petition was dismissed by decision of 2 December 2005 on the ground that, under Article 3 of Regulation No 2201/2003, only the French courts have jurisdiction and that, accordingly, Article 7 of that regulation precludes Swedish rules on jurisdiction from applying.

12 By judgment of 7 March 2006, the Svea hovrätt (Court of Appeal, Svea) (Sweden) dismissed the appeal brought against that judgment.

13 Mrs Sundelind Lopez appealed against that judgment to the Högsta domstolen (Supreme Court). In her appeal, she submitted that Article 6 of Regulation No 2201/2003, which establishes the exclusive nature of the jurisdiction of the courts of Member States pursuant to Articles 3 to 5 of that regulation where the respondent has his habitual residence in or is a national of a Member State, implies that those courts do not have exclusive jurisdiction where the respondent has neither of those attributes. Consequently, national law is an appropriate basis, in the present case, on which to establish the competence of the Swedish courts.

14 In the order for reference, the Högsta domstolen stated that, in the present case, the Swedish courts, unlike the French courts, cannot base their jurisdiction on Article 3 of Regulation No 2201/2003, but only on their own national law. The interpretation of Article 7 of that regulation therefore has a direct effect on the outcome of the case in the main proceedings. However, the Court has yet to interpret those provisions.

15 Against that background, the Högsta domstolen decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Where the respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State, may the case be heard by a court in a Member State which does not have jurisdiction under Article 3 [of Regulation No 2201/2003], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3?’

The question referred for a preliminary ruling

16 The national court is essentially asking whether Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State can base their jurisdiction to hear the petition on their national law, even though the courts of another Member State have jurisdiction under Article 3 of that regulation.

17 In the main proceedings, it is not disputed that, in accordance with Article 3(1)(a) of Regulation No 2201/2003, the French courts have jurisdiction under the regulation to hear Mrs Sundelind Lopez’s petition under either the second indent of that provision, as the last place where the spouses were habitually resident, to the extent that she is still resident in France, or the fifth indent of that same provision, as the place where she is habitually resident, since she has resided in France for at least a year immediately before her divorce petition was introduced.

18 According to the clear wording of Article 7(1) of Regulation No 2201/2003, it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation that jurisdiction is to be governed, in each Member State, by the laws of that State.

19 Moreover, according to Article 17 of Regulation No 2201/2003, the wording of which is equally unambiguous, where a court of one Member State is seised of a case over which it has no jurisdiction under that regulation and a court of another Member State has jurisdiction pursuant to that regulation, it is to declare of its own motion that it has no jurisdiction.

20 Consequently, since the French courts have jurisdiction to hear the petition in the main proceedings pursuant to the criteria laid down by Article 3(1)(a) of Regulation No 2201/2003, the Swedish courts cannot base their jurisdiction to hear that petition on rules of their national law, pursuant to Article 7(1) of the regulation, but must, in accordance with Article 17 thereof, declare of their own motion that they have no jurisdiction, in favour of the French courts.

21 Contrary to the submission of the Italian Government, that interpretation is not affected by Article 6 of Regulation No 2201/2003.

22 Admittedly, Article 6, which provides that a respondent having his habitual residence in a Member State or being a national of a Member State can, in view of the exclusive nature of the jurisdiction set out in Articles 3 to 5 of Regulation No 2201/2003, be sued in the courts of another Member State only pursuant to those provisions, and consequently not pursuant to the rules of jurisdiction laid down by national law, does not prohibit a respondent who has neither his habitual residence in a Member State nor the nationality of a Member State from being sued before a court of a Member State pursuant to the rules of jurisdiction provided for by the national law of that State.

23 In accordance with Article 7(1) of Regulation No 2201/2003, that may be the case where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 thereof, Article 7(2) of the regulation providing, in such a situation, that, if the petitioner is a national of a Member State and is habitually resident within the territory of another Member State, he may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State against such a respondent.

24 However, it cannot be inferred from this that Article 6 of Regulation No 2201/2003 lays down a general rule that the jurisdiction of the courts of a Member State to hear questions relating to divorce in respect of a respondent who does not have his habitual residence in a Member State and is not a national of a Member State is to be determined, in all cases, under national law, including where a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation.

25 Such an interpretation would in effect be tantamount to ignoring the clear wording of Articles 7(1) and 17 of Regulation No 2201/2003, the application of which does not depend, as is clear from paragraphs 18 to 20 of this judgment, on the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of Regulation No 2201/2003.

26 That interpretation would, moreover, be contrary to the objective pursued by Regulation No 2201/2003. As is clear from Recitals 4 and 8 in the preamble to Regulation No 1347/2000, whose provisions on the jurisdiction to hear questions relating to divorce are essentially repeated in Regulation No 2201/2003, the latter regulation aims to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, Regulation No 2201/2003 applies also to nationals of non‑Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which, according to Recital 12 in the preamble to Regulation No 1347/2000, are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction.

27 However, in the main proceedings, it is clear from the application of Article 3(1)(a) of Regulation No 2201/2003 that such a link exists with France and not with Sweden.

28 The answer to the question referred must, therefore, be that Articles 6 and 7 of Regulation No 2201/2003 are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

Costs

29 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Articles 6 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, as regards treaties with the Holy See, are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.

[Signatures]

* Language of the case: Swedish.