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 20 000 (approximately EUR 15 000 (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 forumpursuant 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.