Case C‑372/16

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)

Summary — Judgment of the Court (First Chamber), 20 December 2017

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law made applicable directly and unconditionally by national law to situations falling outside their scope — Included

(Art. 267 TFEU; Council Regulation No 1259/2010)

2.        Judicial cooperation in civil matters — Law applicable to divorce and legal separation — Regulation No 1259/2010 — Scope — Recognition of a divorce decision resulting from a unilateral declaration of intent before a religious court located in a third country — Not included

(Council Regulation No 1259/2010, Art. 1)

1.      See the text of the decision.

(see paras 27-34)

2.      Article 1 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 must be interpreted as meaning that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court, such as that at issue in the main proceedings, does not come within the substantive scope of that regulation.

As regards, in the first place, the wording of Article 1 of Regulation No 1259/2010, that article merely states, in paragraph 1 thereof, that the regulation applies, in situations involving a conflict of laws, to divorce and legal separation. The wording of Article 1 of that regulation therefore does not provide any useful element for the purpose of defining the concept of ‘divorce’ within the meaning of that provision.

As regards, in the second place, the context in which Article 1 of Regulation No 1259/2010 occurs, it should be noted at the outset that no other provision of that regulation provides a definition of the concept of ‘divorce’ for the purposes of that regulation. Next, although it is true that private divorces are not explicitly excluded from the scope of Regulation No 1259/2010, as the Advocate General has noted in point 60 of his Opinion, the references made to the involvement of a ‘court’ and to the existence of a ‘proceeding’ in a number of provisions of that regulation, such as Article 1(2), Article 5(2) and (3), Article 8, Article 13 and Article 18(2) thereof, show that the regulation covers exclusively divorces pronounced either by a national court or by, or under the supervision of, a public authority. Lastly, according to recital 10 of Regulation No 1259/2010, the substantive scope and enacting terms of that regulation should be consistent with Regulation No 2201/2003.

As regards, in the third place, the objective pursued by Regulation No 1259/2010, that regulation establishes, as is clear from its title, enhanced cooperation between the participating Member States in the area of the law applicable to divorce and legal separation. As the Advocate General noted in point 65 of his Opinion, at the time of the adoption of that regulation, in the legal systems of the Member States participating in such enhanced cooperation, public bodies alone were able to adopt legally valid decisions in that sphere. In that regard, while it is true that a number of Member States have, since the adoption of Regulation No 1259/2010, introduced into their legal systems the possibility for divorces to be pronounced without the involvement of a State authority, it is nevertheless the case, as the Advocate General noted in point 66 of his Opinion, that the inclusion of private divorces within the scope of that regulation would require arrangements coming under the competence of the EU legislature alone.

Accordingly, in the light of the definition of the concept of ‘divorce’ in Regulation No 2201/2003, it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

(see paras 37-40, 44, 45, 47-49, operative part)