OE v VY.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:87
• Docket Number: C-522/20
• Date: 10 February 2022
• Celex Number: 62020CJ0522
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

10 February 2022 (*)

(Reference for a preliminary ruling – Validity – Judicial cooperation in civil matters – Jurisdiction to hear and determine an application for divorce – Article 18 TFEU – Regulation (EC) No 2201/2003 – Fifth and sixth indents of Article 3(1)(a) – Difference between the length of the residence period required for the purposes of determining which court has jurisdiction – Distinction between a resident who is a national of the Member State of the court before which the application is brought and a resident who is not a national of that Member State – No discrimination on grounds of nationality)

In Case C‑522/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 29 September 2020, received at the Court on 19 October 2020, in the proceedings

OE

v

VY,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi (Rapporteur) and N. Wahl, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Council of the European Union, by M. Balta and T. Haas, acting as Agents,

– the European Commission, by M. Wasmeier and M. Wilderspin, acting as Agents,

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

gives the following

Judgment

1 The request for a preliminary ruling concerns the validity of the sixth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1), and the potential consequences in the event that that provision is invalid.

2 The request has been made in proceedings between OE and his wife, VY, concerning an application for dissolution of their marriage brought before the Austrian courts.

Legal context

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

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

4 According to recital 1 of Regulation No 2201/2003:

‘The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.’

5 Article 1 of that regulation, headed ‘Scope’, provides, in paragraph 1:

‘This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

(a) divorce, legal separation or marriage annulment;

…’

6 Article 3 of that regulation, headed ‘General jurisdiction’, provides:

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

(a) in whose territory:

– the spouses are habitually resident, or

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

– the respondent is habitually resident, or

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

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

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

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

2. For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.’

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

‘A spouse who:

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

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

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

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

8 On 9 November 2011, OE, an Italian national, and VY, a German national, were married in Dublin (Ireland).

9 According to the information provided by the referring court, OE left the habitual residence the couple shared in Ireland in May 2018 and has lived in Austria since August 2019.

10 On 28 February 2020, that is, after residing in Austria for more than six months, OE applied to the Bezirksgericht Döbling (District Court, Döbling, Austria) for the dissolution of his marriage with VY.

11 OE submits that a national of a Member State other than the State of the forum is entitled to invoke the jurisdiction of the courts of that latter State under the sixth indent of Article 3(1)(a) of Regulation No 2201/2003, on the basis of observance of the principle of non-discrimination on grounds of nationality, after having resided in the territory of that latter State for only six months immediately before making the application for divorce, which is tantamount to disregarding the application of the fifth indent of that provision, which requires a period of residence of at least a year immediately before the application for divorce is made.

12 By order of 20 April 2020, the Bezirksgericht Döbling (District Court, Döbling) dismissed OE’s application, taking the view that it lacked jurisdiction to hear it. According to that court, the distinction made on the basis of nationality in the fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 is intended to prevent the applicant from forum shopping.

13 By order of 29 June 2020, the Landesgericht für Zivilrechtssachen Wien...