M.H. v M.H.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2016:542
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 62016CO0173
• Date: 22 June 2016
• Court: Court of Justice (European Union)
• Docket Number: C-173/16

Jurisdiction – Brussels IIA – Seisure – Significance of lodging document instituting proceedings with court – Relevance of service condition when documents served without abuse of process.

The wife filed a divorce petition that was received by the registry of the Family Court on 7 September 2015. The petition was date stamped at the latest by 10.30 on that day. The petition was subsequently issued by the court registry on 11 September 2015 and served on the husband on 15 September 2015. The husband meanwhile had lodged a judicial separation summons at the registry of the High Court of Ireland at about 14.30 on 7 September 2015, which was issued shortly afterwards on the same day. This summons was served on the wife on 9 September 2015. The wife’s divorce proceedings issued in England were considered to date from 11 September 2015 and to have been pending before the court since that date. The husband’s judicial separation proceedings initiated in Ireland were considered to date from 7 September 2015 and to have been pending before that court since that date.

In the Irish proceedings the wife asked the Irish court to make a declaration that the English court was the first seised for the purposes of Brussels IIA, whereas the husband asked for a declaration that the Irish court was first seised. The Irish court concluded that the English court was first seised. On the husband’s appeal to the Irish Court of Appeal, the Court referred the following question to the Court of Justice for a preliminary ruling:

Is ‘the time when the document instituting the proceedings … is lodged with the court’ in art 16(1)(a) of Brussels IIA (Regulation 2201/2003) to be interpreted as meaning:

(i) the time at which the document instituting the proceedings is received by the court even if such receipt does not of itself immediately commence the proceedings in accordance with national law; or

(ii) the time at which, following receipt of the document instituting the proceedings by the court, the proceedings are commenced in accordance with national law?

The Irish Court of Appeal asked the Court of Justice to apply the expedited procedure to the present case pursuant to Article 105 of the ECJ’s Rules of Procedure.

Held – (1) Pursuant to Article 99 of the ECJ Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling could be clearly deduced from existing case-law, the Court could at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. It was appropriate to apply that provision in the present case; there was therefore no reason to rule on the request for application of the expedited procedure (see [17], [18], below).

(2) For the court to be deemed seised, Article 16(1)(a) required the satisfaction not of two conditions, namely that the document instituting the proceedings or an equivalent document must have been lodged and service thereof must have been effected on the respondent, but merely of one – that of lodging the document instituting proceedings or an equivalent document. Pursuant to that provision, the lodging of the document of itself rendered the court seised, provided that the applicant had not subsequently failed to take the steps he was required to take to have service effected on the respondent. The objective of this condition was to ensure protection against abuse of process. Thus, for the purposes of checking compliance with the condition, account would not be taken of delays caused by the judicial system applicable, but only of any failure of the applicant to act diligently). P (C-507/14), not published, EU:C:2015:512, applied (see [25]–[27], below).

(3) Once it had been established which of the two options in Article 16(1)(a) and (b) applied, in accordance with the choice made by the member state concerned, the time when a court was seised could be objectively established solely on the basis of the time, as provided for in the case of the first option under Article 16(1)(a), when the document instituting the proceedings or an equivalent document was lodged with that court, irrespective of any national procedural rule intended to determine when and in what circumstances proceedings were initiated or were considered to be pending, provided that the applicant had not subsequently failed to comply with the condition relating to service of that document on the respondent (see [28], below).

Statutory provisions referred to

Council Regulation (EC) No 2201/2003 of 27 November 2003...