| CONFLICT OF LAWS — Jurisdiction under EC Regulation — Matrimonial matters — Divorce respondent not EC national or resident — Courts of petitioner’s member state having jurisdiction under law of that state — Whether ousted by another member state having jurisdiction under Regulation — Council Regulation (EC) No 2201/2003 on jurisdiction and enforcement of judgments in matrimonial matters (as amended by Council Regulation (EC) No 2116/2004) (“Regulation 2201/2003”), arts 6, 7
Sundelind Lopez v Lopez Lizazo (Case C-68/07)
ECJ: President of Chamber Rosas, Judges Cunha Rodrigues, Klučka, Ó Caoimh and Arabadjiev: 29 November 2007
Arts 6 and 7 of Regulation No 2201/2003 meant that where, in divorce proceedings, a respondent was not habitually resident in and not a national of a member state, the courts of a member state could not base their jurisdiction to hear the petition on their national law, if the courts of another member state had jurisdiction under art 3 of the Regulation.
The Third Chamber of the Court of Justice of the European Communities so ruled on a reference for a preliminary ruling by the Högsta domstolen, Sweden.
While living together, the petitioner, a Swedish national, and her husband, the respondent, a Cuban national, were resident in France. After the respondent had returned to Cuba, the petitioner, still resident in France, brought divorce proceedings in Sweden, relying for jurisdiction on a Swedish Law that matrimonial cases could be heard by Swedish courts if the petitioner was a citizen of Sweden and was or had been resident there. The petition having been dismissed on the ground that, by art 3 of Regulation 2201/2003, only the French courts had jurisdiction, the question was referred to the European Court, in the course of appeal proceedings, whether a member state could found jurisdiction in a matrimonial matter on its own law, even though another member state had jurisdiction under art 3 of the Regulation.
Art 3(1)(a) provides that in divorce matters, jurisdiction lies with the courts of the member state in whose territory “[second indent] the spouses were last habitually resident, in so far as one of them still resides there …” Art 6 provides: “A spouse who: (a) is habitually resident in the territory of a member state; or (b) is a national of a member state …may be sued in another member state only in accordance with articles 3, 4 and 5.” Art 7(1) provides: “Where no court of a member state has jurisdiction pursuant to articles 3, 4 and 5, jurisdiction shall be determined, in each member state, by the laws of that state …” By art 17: “Where a court of a member state is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another member state has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.”
THE COURT said that a negative answer was to be given to the question referred. It was common ground that the French courts had jurisdiction under the Regulation, by virtue of at least the second indent of art 3(1)(a). It was clear from art 7(1) that it was only where no court of a member state had jurisdiction under arts 3–5 that jurisdiction was to be governed by the laws of the member states. That was reinforced by art 17. Contrary to the arguments of intervening Governments, art 6 did not lead to a contrary conclusion.
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