OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 5 May 2022 (1)
Case C‑646/20
Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht
v
TB,
joined parties:
Standesamt Mitte von Berlin,
RD
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Measures relating to family law – Jurisdiction, recognition and enforcement of decisions – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility matters – Authentic instruments and agreements – Dissolution of matrimonial ties following a declaration made before Italian civil registrar)
I. Introduction
1. Measures designed to facilitate the automatic recognition throughout the European Union of changes of civil status are an undoubted benefit for EU citizens who exercise the rights of free movement that the Treaties confer upon them. As the EU legislature expands the fields covered by such measures, their interpretation and application encounters aspects of the law governing the civil status of persons in the different Member States. That there are honest differences of opinion as to what falls within or without the scope of a given measure should thus come as no surprise. Here the context is the automatic recognition in Germany of a divorce by mutual consent obtained by means of a non-judicial procedure under Italian law. In more precise terms, by the present reference for a preliminary ruling, the Bundesgerichtshof (Federal Court of Justice, Germany) asks the Court if 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, (2) obliges Member States to recognise, without further requirements, a divorce decree pronounced by the civil authorities of another Member State pursuant to a non-judicial procedure based on an agreement between the spouses.
II. Relevant legal provisions
A. European Union law
2. Article 1 of Regulation No 2201/2003 is headed ‘Scope’. Article (1)(a) of that regulation provides that that regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to divorce, legal separation or marriage annulment.
3. For the purposes of Regulation No 2201/2003, Article 2 defines the following terms in its paragraphs 1, 2 and 4:
‘1. the term “court” shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of [the Regulation]; (3)
2. the term “judge” shall mean the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation;(4)
…
4. the term “judgment” means a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision’. (5)
4. By Article 21(1) of Regulation No 2201/2003, a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. Article 21(2) also provides that no special procedure shall be required to update a Member State’s civil status records on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.
5. Article 22(a) of Regulation No 2201/2003 provides that a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought.
6. Finally, by Article 46 of Regulation No 2201/2003, headed ‘Authentic instruments and agreements’, documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments.
B. German law
7. Paragraph 97(1), second sentence, of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit of 17 December 2008 (Law on proceedings in family matters and in matters of non-contentious jurisdiction; ‘the FamFG’) provides:
‘The provisions contained in the acts of the European Union shall not be affected.’
8. Under Paragraph 107(1) of the FamFG:
‘Decisions delivered abroad, by which a marriage is annulled invalidated or terminated shall be recognised only if the Land Justice Administration has found that the requirements for recognition are met. If a court or authority of a State of which both spouses were nationals at the time of the decision has ruled, recognition shall not depend on a finding by the Land Justice Administration.’
9. Article 3(1) of the Personenstandsgesetz (Law on civil status) of 19 February 2007 (BGBI. 2007 I, p. 122; ‘the PStG’) provides that, within its area of competence, the civil registry service shall keep a register of marriages. Pursuant to Paragraph 5(1) of the PStG, entries in the register shall be completed and corrected in accordance with its provisions. Under Paragraph 161(3) of the PStG, the entry relating to marriage shall mention subsequent acts concerning the annulment of the marriage or divorce.
C. Italian law
10. Article 12 of Decreto Legge No 132 – Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell’arretrato in materia di processo civile, of 12 September 2014 (Decree Law No 132 on urgent measures for out of court resolution and other interventions to reduce the backlog in civil proceedings; ‘Decree Law No 132/2014’), (6) converted into law with amendments by Legge No 162 (Law No 162) of 10 November 2014, provides:
‘1. The spouses may conclude, before the mayor as the civil registry official, in accordance with Article 1 of Decree No 396 of the President of the Republic of 3 November 2000, for the municipality of residence of one of them or for the municipality where the marriage is registered, with the optional assistance of a lawyer, a legal separation agreement or, in the cases referred to in the first paragraph of Article 3(2)(b) of Law No 898 of 1 December 1970, an agreement concerning the dissolution of the marriage or the termination of the civil effects of the marriage, or an agreement amending the conditions of separation or divorce.
2. The provisions of this Article shall not apply where the spouses have minor children or adult children who do not have legal capacity, have a severe disability within the meaning of Article 3(3) of Law No 104 of 5 February 1992 or are not financially independent.
3. The civil registry official shall receive from each of the parties personally, with the optional assistance of a lawyer, a declaration that he or she wishes to separate or terminate the civil effects of the marriage or to have the marriage dissolved in accordance with the conditions agreed between them. The same shall apply to any amendment to the conditions of separation or divorce. The agreement may not contain terms concerning transfers of assets. The document containing the agreement shall be drawn up and signed immediately upon receipt of the declarations referred to in this paragraph. In the cases referred to in paragraph 1, the agreement shall replace court orders concluding the proceedings for legal separation, termination of the civil effects of marriage, dissolution of marriage and amendment of the conditions of separation or divorce.
In the case of legal separation or termination of the civil effects of marriage or dissolution of marriage by agreement, the civil registrar shall, on receipt of declarations from the spouses, invite them to appear before him or her at the earliest 30 days after the receipt of the declarations to confirm the agreement, as well as for the purposes of providing the agreements referred to in paragraph 5. Failure to appear shall mean that the agreement is not confirmed.
…’
11. It follows from Article 43(1) and Article 71(2) of Decreto del Presidente della Repubblica No 445/2000 – Testo unico delle disposizioni legislative e regolamentari in materia di documentazione amministrativa (Decree of the President of the Republic No 445/2000 – Consolidated text of the laws and regulations relating to administrative documents) that the civil registrar must verify that the applicable legal conditions are fulfilled.
12. It follows from Article 7 and Article 95 of Decreto del Presidente della Repubblica No 396 – Regolamento per la revisione e la semplificazione dell’ordinamento dello stato civile, a norma dell’articolo 2, comma 12, della legge 15 maggio 1997, No 127 (Decree of the President of the Republic No 396 – Regulation for the revision and simplification of the law on civil status, in accordance with Article 2(12) of Law No 127 of 15 May 1997) that the civil registrar shall refuse the divorce where the applicable legal conditions are not fulfilled. The spouses can challenge this refusal before a court.
13. According to Circolare No 6/15 – Articoli 6 e 12 del decreto-legge 12 settembre 2014, No 132 – Chiarimenti applicativi (Circular No 6/15 – Articles 6 and 12 of Decree Law No 132 of 12 September 2014), the third sentence of Article 12(3) of Decree Law No 132/2014 should be interpreted as precluding spouses from including in this type of divorce procedure any terms concerning a transfer of the ownership of property rights as between them.
14. From the foregoing it appears that, under the procedure established by Article 12 of Decree Law No 132/2014, the spouses each make a personal declaration that they wish to divorce before the civil registrar. Not less than 30 days later, having verified that the conditions required by law for dissolving the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms transferring assets between them, the civil registrar confirms that agreement. A divorce granted by the civil registrar has the identical legal effect as a divorce granted by a court of competent jurisdiction.
III. The dispute in the main proceedings and the request for a preliminary ruling
15. TB has German and Italian nationality. She married RD, an Italian national, in a civil ceremony in Berlin on 20 September 2013. The Berlin civil registry office entered that marriage into the register of marriages.
16. On 30 March 2017, before the civil registrar in Parma, Italy, the spouses declared their intention to separate. They affirmed that they had no minor children or adult children who were incapacitated or severely disabled or who were economically dependent. They further stated that they had not concluded any agreement concerning the transfer of their assets as part of their separation. They subsequently confirmed their respective declarations before the civil registrar.
17. In reliance upon their declarations of 30 March 2017, the spouses went before the civil registrar and declared their intention to divorce on 15 February 2018. They subsequently confirmed their declarations before the civil registrar who, on 2 July 2018, issued a certificate of divorce with effect from 15 February 2018.
18. TB thereafter requested the Berlin civil registry office to enter that divorce in the register of marriages. Uncertain as to whether the divorce ought to be entered in the register of marriages or subject to the recognition procedure under Paragraph 107(1) of the FamFG, the Berlin civil registry office brought proceedings before the Amtsgericht Berlin (Local Court, Berlin, Germany). On 1 July 2019, the Amtsgericht Berlin (Local Court, Berlin) ruled that the entry of the divorce in the register of marriages was conditional upon its recognition pursuant to the procedure laid down in Paragraph 107(1) of the FamFG. However, the Senatsverwaltung für Justiz, Verbraucherschutz und Antidiskriminierung Berlin (Ministry of Justice, Consumer Protection and Fight against Discrimination, Berlin, Germany) took the view that the divorce should be automatically recognised. It thus declined to invoke the procedure under Paragraph 107(1) of the FamFG. (7)
19. TB lodged an appeal with the Kammergericht Berlin (Higher Regional Court, Berlin) against the order of 1 July 2019 of the Amtsgericht Berlin (Local Court, Berlin). The appellate court allowed her appeal and ordered the Berlin civil registry office to enter the divorce into the civil register without any further procedure. The Senatsverwaltung für Inneres und Sport (Ministry of the Interior and Sports, Berlin, Germany), the competent authority for the supervision of civil registry offices, lodged an appeal against the ruling of the Kammergericht Berlin (Higher Regional Court, Berlin) with the Bundesgerichtshof (Federal Court of Justice). It appears the Ministry of Justice, Consumer Protection and Fight against Discrimination, Berlin and the Ministry of the Interior and Sports, Berlin have different views on that matter.
20. In order to rule on that appeal, the Bundesgerichtshof (Federal Court of Justice) considers that it must decide whether the divorce that TB seeks to have recognised is a judgment for the purposes of Article 2 and Article 21 of Regulation No 2201/2003, in which case Paragraph 97 of the FamFG does not require any additional recognition procedure for it to be entered into the register of marriages.
21. The order for reference discloses that the opinions of German legal scholars differ on that point. Some take the view that Regulation No 2201/2003 applies to a divorce obtained in Italy in accordance with the procedure laid down in Article 12 of Decree Law No 132/2014 and that the civil registrar is a ‘judge’ for the purposes of Regulation No 2201/2003. They recall that the objective of that regulation is to facilitate the mutual recognition of divorce decrees within the European Union and that there is a growing trend in the Member States towards recourse to divorce procedures that do not require the involvement of judicial authorities. (8) Other authors consider that a divorce by mutual consent granted by a civil registrar, such as that of the subject matter of the present reference for preliminary ruling, does not fall within the scope of Regulation No 2201/2003.
22. The Bundesgerichtshof (Federal Court of Justice) tends to agree with the second point of view. It suggests that a divorce granted by a civil registrar in accordance with Article 12 of Decree Law No 132/2014 is a private divorce that falls outside of the scope of Regulation No 2201/2003. In support of that proposition, the referring court submits that only a divorce decision issued by a public authority that has constitutive effects can protect the ‘weaker spouse’ against the disadvantages of divorce since the decision maker may refuse to grant the decree. A purely formal intervention by a civil registrar who has no power to alter the terms of the divorce is incapable of affording that protection. Such a divorce decree is thus not a ‘judgment’ for the purposes of Regulation No 2201/2003.
23. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings. It referred two questions to the Court of Justice for a preliminary ruling:
‘(1) Is the dissolution of a marriage on the basis of Article 12 of [Decree Law No 132/2014] a divorce within the meaning of [Regulation No 2201/2003]?
(2) If the first question is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of [Decree Law No 132/2014] to be treated by applying by analogy the rule on authentic instruments and agreements in Article 46 of [Regulation No 2201/2003]?’
24. The German, Estonian, French and Italian Governments and the European Commission submitted written observations. At the hearing of 8 February 2022, the German, French and Polish Governments and the Commission presented oral argument and replied to the Court’s questions.
IV. Assessment
A. The first question
25. By its first question, the referring court in effect asks whether the dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who not less than 30 days later confirms that agreement in their presence after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Regulation No 2201/2003.
26. The German Government, supported at the hearing by the Polish Government, submits that, by reference to the text, the structure and the purpose of Regulation No 2201/2003, as well as the intention of the EU legislature, that question should be answered in the negative.
27. The German Government first observes that the definition of judgment in Article 2(4) of Regulation No 2201/2003 does not indicate precisely the nature or the intensity of the public authority’s intervention when it grants a divorce. However, the use of the words ‘pronounced by a court’ to describe the manner in which a divorce is to be made suggests that the public authority’s intervention must have what the German Government describes as constitutive effects, namely that the public authority’s intervention constitutes the source of the new legal situation. That condition is not met where the public authority’s function in the procedure is limited to the acknowledgement and the registration of a divorce by mutual consent.
28. Second, for other Member States to recognise a divorce judgment in without any special procedure under Article 21(1) thereof, the structure of Regulation No 2201/2003 implies that that judgment must be the result of an act by a court or a public authority with constitutive effects. Otherwise, Regulation No 2201/2003 requires Member States automatically to recognise private divorce agreements made in other Member States without the intervention of a public authority.
29. As far as the purpose of Regulation No 2201/2003 is concerned, the German Government argues, third, that the mutual recognition and the mutual trust underpinning that regulation require that, for a Member State automatically to recognise an act by a court or a public authority of another Member State, that act must engage the exercise of public powers and have constitutive effects. Those requirements are not met where a public authority merely acknowledges and registers a private divorce agreement.
30. Fourth, the EU legislature did not intend to include a divorce granted by a civil registrar within the scope of Regulation No 2201/2003 since, at the time that measure was enacted, the laws of the Member States did not contemplate the grant of divorce by means of a non-judicial procedure. That state of affairs is confirmed by the fact that Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (9) expressly contemplates the automatic recognition of non-judicial divorce procedures. Those amendments would have been unnecessary had Regulation No 2201/2003 already provided for the automatic recognition of divorce decrees issued under such a procedure. Regulation No 2019/1111 does not, however, apply to the facts of the present case ratione temporis.
31. The Italian Government, supported by the Estonian Government and the Commission, submits that the answer to the first question should be in the affirmative since the divorce, the recognition of which is sought in Germany, is not a private divorce. In particular, the Commission observes that the main objective of Regulation No 2201/2003 is to ensure the mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area. For that reason, all decisions adopted in a Member State that fall within the scope of Regulation No 2201/2003 must be recognised throughout the territory of the Member States without any formal recognition procedure being required for that purpose.
32. Key to the answer to the first question is the meaning to be attributed to the terms ‘court’, ‘judge’ and ‘judgment’ for the purposes of Regulation No 2201/2003 as defined by Article 2 thereof.
33. In accordance with settled case-law, in interpreting provisions of EU law, it is necessary to consider the text of those provisions, the context in which they appear and the objectives pursued by the rules of which they form part. (10)
34. Article 2(1) of Regulation No 2201/2003 defines ‘court’ to include all authorities in the Member States with jurisdiction in the matters falling within the scope of that regulation. The plain meaning of those words is that a ‘court’ is any authority upon which the laws of a Member State confer jurisdiction in civil matters, including divorce, legal separation or marriage annulment.
35. That interpretation is confirmed by the definition of ‘judge’ in Article 2(2) of Regulation No 2201/2003, which includes an official having powers equivalent to those of a judge in civil matters relating to divorce. It follows that if a Member State confers jurisdiction upon judges in the matters falling within the scope of the regulation, namely civil matters relating to divorce, legal separation or marriage annulment and confers equivalent powers upon other public officials, those public officials fall within the definition of a ‘judge’ for the purpose of Regulation No 2201/2003.
36. Article 2(4) of Regulation No 2201/2003, which defines the term ‘judgment’, completes the picture; under that regulation a decree, order or decision made by an authority that a Member State vests with jurisdiction to grant a divorce is a judgment given in that Member State. By virtue of Article 21(1) of Regulation No 2201/2003, that judgment ‘shall’ be recognised in other Member States without any special procedure being required for that purpose. The judgments that benefit from automatic recognition throughout the European Union therefore include a divorce pronounced by an official upon which a Member State has conferred jurisdiction in civil matters relating to divorce.
37. The scope of Regulation No 2201/2003, described in Article 1 thereof, provides the context in which its Article 2 is to be read. Article 1(1) states that Regulation No 2201/2003 applies in civil matters relating to, inter alia, divorce. Since, for those purposes, ‘court’ is defined as described in Article 2(1) thereof, it is clear the aforesaid definitions apply in the context of the recognition of divorce decrees, orders or decisions made in Member States other than those in which it is sought to recognise such decrees.
38. As for the objectives that Regulation No 2201/2003 pursues, it is apparent from its recitals that it seeks to ensure judicial cooperation in civil matters relating to divorce, legal separation and marriage annulment and is based on the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area. (11) As the Court has ruled, Regulation No 2201/2003 is based on mutual trust, which requires the mutual recognition of judicial decisions. (12) Mutual recognition of judicial decisions is moreover necessary in order to avoid obstacles to the proper functioning of the internal market, (13) since the refusal to recognise judicial decisions in civil matters, including divorce, may hinder or deter Union citizens from exercising the rights of free movement conferred by EU law.
39. In consequence, Article 21(1) of Regulation No 2201/2003 provides that a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required for that purpose. Regulation No 2201/2003 thus establishes a system for the automatic recognition by the Member States of a category of instruments that it defines. Thus, although the law of divorce is not harmonised as between Member States, by Regulation No 2201/2003 a divorce made in a Member State that comes within the definitions contained therein benefits from automatic recognition in all other Member States, subject to a limited number of exceptions.
40. Since the present reference for preliminary ruling appears to be the first opportunity the Court has had to interpret Article 2 of Regulation No 2201/2003 for the purpose of applying Article 21(1) thereof, it is worth examining the judgment in Sahyouni. (14) That reference for preliminary ruling arose in the context of the recognition in Germany of a divorce obtained by means of a unilateral declaration of intent that the husband had pronounced before a religious court in Syria. (15) The case raised issues regarding the interpretation of Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, (16) which applies to divorce and legal separation in circumstances that gave rise to a conflict of laws. (17) In its judgment, the Court pointed to recital 10 of Regulation No 1259/2010, which provides that its substantive scope and enacting terms should be consistent with those in Regulation No 2201/2003. (18) Having examined Article 1(1)(a) and Article 2(4) of Regulation No 2201/2003, the Court held that it would be inconsistent to define the term ‘divorce’ as used in both regulations in different ways, thereby causing the respective scope of those regulations to diverge. (19) Since the concept of divorce in Regulation No 2201/2003 covers divorces pronounced by a national court or by, or under the supervision of, a public authority, the Court held that the field of application of Regulation No 1259/2010 was equally restricted, such that divorces pronounced without the involvement of a State authority fell outside of the scope of the latter regulation. (20)
41. The judgment in Sahyouni makes it clear that the system of automatic recognition introduced by Regulation No 2201/2003 applies to divorces pronounced by a national court or by, or under the supervision of, a public authority only. It thus confirms the validity of the proposition that, pursuant to Regulation No 2201/2003, a divorce pronounced by, or under the supervision of, a public authority not vested with judicial power can benefit from automatic recognition in another Member State. I would add that, in my view, no argument has been put before the Court to justify a distinction being drawn between a divorce procedure conducted before a national court and one conducted before a public official, such as a civil registrar, in circumstances where the couple seek to divorce by mutual consent. In all such cases, the task of the person conducting the procedure is to verify that each of the spouses validly consent to the dissolution of the marriage and that all of the legal requirements to permit the divorce decree to issue are met.
42. In that context, I would observe that the procedure before the civil registrar in Italy under Article 12 of Decree Law No 132/2014 is available in situations that are unlikely to require the civil registrar to conduct a balancing exercise since the power to pronounce a divorce can be exercised only where it has been established that there are no minor children or adult children who are incapacitated or severely disabled or who are economically dependent and the agreement between the spouses does not contain terms concerning the transfer of assets. In those circumstances, the fact that the civil registrar does not have the power to modify the terms of the agreement between the spouses is of little import since, in view of the spouses’ mutual consent, the civil registrar must pronounce the divorce once the conditions laid down by law are satisfied. Whilst the protection of the ‘weaker spouse’ may be a legitimate concern, as the referring court suggests, it is far from clear that the procedure established by Article 12 of Decree Law No 132/2014 does not take account of that concern given the limited circumstances in which it is available, the requirement of the spouses’ mutual consent and the obligation on the civil registrar to verify the facts represented by the spouses.
43. The German Government contends that even if a divorce pronounced by a public authority other than a court exercising judicial power can benefit from automatic recognition under Regulation No 2201/2003, that decree must have what it describes as a constitutive effect. In the view of the German Government, the role of the civil registrar in dissolving the spouses’ marriage is purely passive, amounting merely to recording an agreement, of a private nature, that the spouses made to divorce. Such case thus falls outside of the scope of Regulation No 2201/2003, as the Court held, in somewhat different factual circumstances, in the judgment in Sahyouni. (21)
44. In the light of the text of Article 2 and Article 21 of Regulation No 2201/2003, and the Court’s approach towards the definition of the concept of divorce in the context of Regulation No 1259/2010, it is safe to conclude that the role the civil registrar plays in the dissolution of a marriage in the procedure described in Article 12 of Decree Law No 132/2014 brings divorces made thereunder within the scope of Regulation No 2201/2003.
45. In that regard, it may be observed that nothing in Article 21 of Regulation No 2201/2003 supports the idea that, for a judgment to benefit from automatic recognition in another Member State, it must have some characteristic additional to the requirements contained therein. In so far as the German Government relies upon the use of the verb ‘to pronounce’ in the definition of ‘judgment’ in Article 2(4) of Regulation No 2201/2003, one of the meanings of that verb, namely ‘to declare’, strikes me as apposite. To declare the existence of a given state of affairs is to recognise its existence. Nor is it inherent in the nature of a declaration that the person making it must always create the subject matter of that declaration. The recognition by a civil registrar of the spouses’ mutual wish to dissolve their marriage, provided that certain conditions are met as prescribed by law, is manifestly a declaration, and thus a pronouncement, of its dissolution.
46. In any event, for a civil registrar to dissolve a marriage under Article 12 of Decree Law No 132/2014, he or she must be satisfied that the legal requirements contained therein are met, otherwise he or she must refuse to grant the dissolution. In order to be so satisfied, the civil registrar must ascertain whether the statutory requirements to enable the exercise of the powers the law confers upon him or her are present. To my mind, that exercise involves the civil registrar making a decision concerning the existence of a set of legally ordained requirements that has the consequence of dissolving the marriage, which decision by its very nature has constitutive effects for the civil status of the individuals concerned.
47. It follows that a divorce decree obtained under a procedure such as that described in point 14 of the present Opinion is not a private divorce. Whilst the dissolution of the marriage is based upon the agreement of the parties thereto, the marriage is not dissolved unless the civil registrar is satisfied that the applicable legal requirements have been met. In the absence of that finding, the spouses remain legally married irrespective of any agreement that they may have reached between them. The civil registrar’s acceptance that the applicable conditions have been met, and the issuing of a certificate of divorce attesting to that fact, thus has constitutive effects.
48. Moreover, it may be observed that the act of recognition by a civil registrar that a couple wish to be joined in matrimony is deemed constitutive of marriage in all Member States, including Germany, provided again that the requisite legal requirements are satisfied. Indeed marriages are almost invariably recognised or constituted by public officials exercising the executive power of the State, not by judges exercising judicial power. If a formal recognition by a public official of the parties’ consent to be joined in matrimony is constitutive of marriage in the eyes of the law, I see no logical reason why the formal recognition by that same official of the parties’ consent to dissolve a marriage is not equally capable of constituting a divorce.
49. In support of their position, the German and Polish Governments sought, respectively, to draw analogies with the Court’s judgments in Mærsk Olie & Gas (22) and Solo Kleinmotoren, (23) both of which involved the interpretation of the Brussels Convention. (24) In the judgment in Mærsk Olie & Gas (25) an action for damages was brought in a Contracting State, the subject matter of which had been the object of a provisional order directing the defendant to establish a liability limitation fund that a court in another Contracting State had made. The Court ruled that, for the purposes of the Brussels Convention, a ‘judgment’ must emanate from a judicial body of a Contracting State deciding on the issues between the parties in the exercise of its own authority. (26) The judgment in Solo Kleinmotoren (27) raised the issue as to whether a commercial settlement reached before a court in a Contracting State could be regarded as a ‘judgment’ capable of recognition in another Contracting State. The Court ruled that a settlement is not a judgment, even if it is reached before a court and brings legal proceedings to an end, because such settlements are contractual in nature. (28)
50. Neither the facts nor the law in the case before the referring court are analogous to those that arose for consideration in the abovementioned judgments. As for the judgment in Mærsk Olie & Gas, (29) the acts capable of recognition under Regulation No 2201/2003 are expressly defined to be wider in scope than those capable of recognition under the Brussels Convention. With regard to the judgment in Solo Kleinmotoren, (30) a divorce by mutual consent cannot be assimilated to a settlement in the context of court proceedings. In the latter case, the contract between the parties concludes the court proceedings, the court simply taking note of that legally binding agreement for the purpose of bringing the litigation before it to an end. In contrast, spouses who wish to divorce by mutual consent require a public authority to adopt an act for that divorce to have a legally binding effect.
51. The Polish Government also sought to rely upon the judgment in WB, (31) in which the Court ruled that notaries are not ‘judges’ for the purposes of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. (32) The provisions that gave rise to the reference for a preliminary ruling in WB are materially different from those the Court is asked to interpret here. First, Article 3(1)(g) and (2) of Regulation No 650/2012 require competent authorities to offer guarantees with regard to their impartiality and the right to be heard, and their decisions must be the subject of an appeal or a judicial review. Regulation No 2201/2003 does not establish any requirements similar to these, some of which would in any event be difficult to transpose to the circumstances of a divorce by mutual consent. Second, WB involved a notary drawing up a deed of certification of succession, which is different in both its nature and its effects from a decree of divorce pronounced by a civil registrar. Third, in that judgment the Court observed that notaries are self-employed professionals who offer various different services for remuneration, (33) unlike the present case which involves public officials exercising powers equivalent to those of a judge.
52. The German Government also submits that Regulation No 2201/2003 does not include a divorce procedure of the type established by Article 12 of Decree Law No 132/2014 because, at the time of the adoption of Regulation No 2201/2003, the laws of the Member States did not countenance non-judicial divorce procedures of that kind. As points 32 to 38 of the present Opinion demonstrate, nothing in the text, the context or the objectives pursued by Regulation No 2201/2003 supports a conclusion that the EU legislature intended to exclude such procedures from the system of automatic recognition created by Regulation No 2201/2003: if anything, those indicators all tend to point in the opposite direction.
53. In the same vein, the German Government contends that, since the amendments to Regulation No 2201/2003 introduced by Regulation No 2019/1111 were required in order to bring non-judicial divorce procedures within the scope of the former regulation and those amendments apply from 1 August 2022, they are inapplicable ratione temporis to the facts of the case before the referring court.
54. I have three observations to make with respect to those arguments. First, the legislature speaks through the texts that it enacts. If the terms that it uses are clearly open to a certain interpretation, it is the duty of the judicial arm of government to give effect thereto. Second, it is in no way unusual for the EU Courts to be called upon to interpret legislation in the context of factual or legal circumstances that come into existence after the enactment of that legislation. As Advocate General Wathelet, relying upon the Opinions of several of his predecessors, recalled, EU law must be interpreted in the light of present day circumstances. The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role. (34) In accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’. Third, it is not possible to interpret provisions of EU law in the light of amendments contained in legislation enacted subsequently. (35) As the German Government itself recognises, Regulation No 2019/1111 is inapplicable to the present case ratione temporis. It is therefore not possible to draw any conclusions from it for the purposes of interpreting Regulation No 2201/2003.
55. For the sake of completeness, I will address the scope of the public policy exception to the automatic recognition of divorce decrees obtained in other Member States and governed by Regulation No 2201/2003, upon which the Polish Government placed some reliance at the hearing. Article 22 of Regulation No 2201/2003 contains an exhaustive list of exceptions to the principle of mutual recognition established by Article 21. By Article 22(a) of Regulation No 2201/2003, a judgment relating to a divorce shall not be recognised if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought.
56. The Court has observed that Regulation No 2201/2003 is grounded upon the idea that the recognition and enforcement of Member State judgments is based on the principle of mutual trust. (36) As a corollary, the grounds for the non-recognition of judgments should be as limited as possible. (37) The non-recognition of a judgment in reliance upon public policy is thus to be interpreted strictly, in so far as such non-recognition is an obstacle to the attainment of one of the fundamental objectives of Regulation No 2201/2003. (38) Public policy is accordingly available as a ground upon which to decline the recognition of a judgment in exceptional cases only. (39)
57. While Member States are in principle free to determine the content of public policy, the limits of that concept are qualified by reference to Article 22(a) of Regulation No 2201/2003. (40) The Court may thus review the limits within which Member State authorities may have recourse to that concept in order to refuse to recognise a judgment emanating from a competent court or authority of another Member State. (41) Recourse to the public policy exception is thus envisaged only where the recognition of a judgment adopted in another Member State would be at variance to an unacceptable degree with the legal order of the Member State in which recognition is sought, or, in other words, constitutes a manifest breach of a rule of law regarded as essential in the legal order of the Member State in which recognition is sought. (42) The scope of the public policy exception is also limited by Article 25 of Regulation No 2201/2003, according to which the recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.
58. In that context the Court’s judgment in Coman may be apposite. (43) The obligation upon a Member State to recognise a marriage between persons of the same sex legally concluded in another Member State in order to grant a right of residence to a third-country national does not undermine the institution of marriage in the first Member State by requiring the latter to facilitate marriage between persons of the same sex. The obligation to recognise marriages lawfully concluded in another Member State exists in order to enable individuals to exercise their rights under EU law. (44) An obligation on a Member State to recognise such marriages is thus incapable of presenting a threat to its public policy, even if the law of that Member State proscribes same sex marriages. (45)
59. It thus appears a Member State cannot rely upon the public policy exception in Article 22 of Regulation No 2201/2003 in order to justify the non-recognition of a divorce decree obtained in another Member State by reason of the fact that the procedure whereby that decree was issued does not exist in a similar or identical form in the legal system of the Member State in which recognition is sought.
60. Finally, it should be emphasised that the foregoing does not imply any obligation on Member States to provide for the grant of divorce by means of a non-judicial procedure.
61. Accordingly, I propose that the Court respond to the referring court’s first question that the dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Regulation No 2201/2003.
B. The second question
62. In the event the Court were to answer the first question in the negative, the referring court asks if the rule on authentic instruments and agreements in Article 46 of Regulation No 2201/2003 can apply to a divorce decree made under the procedure described in point 14 of the present Opinion.
63. The German Government considers that this question should receive a negative answer since the divorce agreement between the spouses is not an enforceable agreement under Italian law, as required by Article 46 of Regulation No 2201/2003, so that it may benefit from the system of automatic recognition promulgated thereby.
64. The French Government, which confined its observations to the second question, supported by the Estonian Government, suggests that the agreement in question is an authentic instrument or an agreement between the parties that, provided it is enforceable under Italian law, should benefit from recognition as such. In view of its suggested response to the first question, the Commission considers there is no need to answer the second.
65. As my proposed answer to the first question indicates, I take the view that a divorce decree made under the procedure described in point 14 of the present Opinion is a divorce judgment for the purposes of Regulation No 2201/2003. It follows that the divorce the subject matter of the order for reference is neither an authentic instrument nor an agreement between the parties within the meaning of Article 46 of Regulation No 2201/2003.
V. Conclusion
66. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes 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.