Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

BOT

delivered on 6 September 2018 (1)

Case C-386/17

Stefano Liberato

v

Luminita Luisa Grigorescu

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 5(2) - Article 27 - Article 35(3) - Jurisdiction, recognition and enforcement of judgments on maintenance obligations - Regulation (EC) No 2201/2003 - Articles 19 and 24 - Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility - Lis pendens - Breach of the rules on lis pendens - Consequences - Prohibition of review of jurisdiction of the court of origin)

1.        This request for a preliminary ruling concerns the interpretation of Articles 19 and 24 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. (2)

2.        The request has been made in the context of proceedings between Mr Stefano Liberato and Ms Luminita Luisa Grigorescu concerning the recognition by the Italian courts of a judgment of the Romanian courts concerning marriage, parental responsibility and maintenance obligations.

3.        This case will give the Court the opportunity to clarify whether a breach of the rules on lis pendens by the court second seised can constitute a ground for non-recognition of a judgment made by that court.

4.        At the conclusion of my analysis, I will propose that it should be held, primarily, and consistently with the judgment of 19 November 2015, P, (3) that Article 35(3) of Council Regulation (EC) No 44/2001 (4) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (5) and Article 24 of Regulation No 2201/2003 must be interpreted as precluding that a breach of the rules on lis pendens, contained in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003, by the court second seised should constitute a ground for withholding recognition of a judgment delivered by that court, on the basis of an infringement of public policy of the Member State in which recognition is sought.

I.      Legal context

A.      European Union law

1.      Regulation No 44/2001

5.        Article 5(2) of Regulation No 44/2001 provides:

‘A person domiciled in a Member State may, in another Member State, be sued:

…

2.      in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.’

6.        Article 27 of that regulation is worded as follows:

‘1.      Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.      Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’

7.        Article 28 of the same regulation provides:

‘1.      Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2.      Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3.      For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

8.        Article 34 of the regulation provides:

‘A judgment shall not be recognised:

1.      if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

…

3.      if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

4.      if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.’

9.        Article 35 of Regulation No 44/2001 states:

‘1.      Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.

2.      In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.

3.      Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.’

2.      Regulation No 2201/2003

10.      Recitals 11, 12, 21 and 33 of Regulation No 2201/2003 state:

‘(11)      Maintenance obligations are excluded from the scope of this Regulation as these are already covered by … Regulation No 44/2001. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5(2) of … Regulation No 44/2001.

(12)      The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

…

(21)      The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required.

…

(33)      This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights ...’

11.      Article 12 of that regulation, entitled ‘Prorogation of jurisdiction’, states, in paragraphs 1 and 2:

‘1.      The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

(a)      at least one of the spouses has parental responsibility in relation to the child;

and

(b)      the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

2.      The jurisdiction conferred in paragraph 1 shall cease as soon as:

(a)      the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;

(b)      in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;

(c)      the proceedings referred to in (a) and (b) have come to an end for another reason.’

12.      Article 17 of the same regulation, entitled ‘Examination as to jurisdiction’, provides:

‘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.’

13.      Article 19 of the regulation, entitled ‘Lis pendens and dependent actions’, provides:

‘1.      Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.      Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

3.      Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.’

14.      Article 21 of Regulation No 2201/2003, entitled ‘Recognition of a judgment’, sets out, in paragraphs 1 and 4:

‘1.      A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

…

4.      Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.’

15.      Article 22 of the regulation, entitled ‘Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment’, provides:

‘A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised:

(a)      if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;

…

(c)      if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought;

…’

16.      Article 23 of the same regulation, entitled ‘Grounds of non-recognition for judgments relating to parental responsibility’, is worded as follows:

‘A judgment relating to parental responsibility shall not be recognised:

(a)      if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;

…

(e)      if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;

…’

17.      Article 24 of the regulation, entitled ‘Prohibition of review of jurisdiction of the court of origin’, provides:

‘The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.’

B.      Italian law

18.      Article 150 of the Codice civile (Civil Code), entitled ‘Legal separation’, provides:

‘Legal separation of the spouses is permitted.

The separation may be ordered by the court or be consensual.

The right to apply for court-ordered separation or confirmation of consensual separation is vested solely in the spouses.’

19.      Article 151 of the Civil Code, entitled ‘Court-ordered separation’, provides:

‘Separation may be applied for when there exist, even if outwith the control of either or both of the spouses, circumstances liable to render intolerable continuing cohabitation or to cause serious harm to the upbringing of the children.

The judge pronouncing separation shall declare, where the relevant circumstances obtain and a request to that effect is made, to which of the spouses the separation is imputable by virtue of conduct inconsistent with the duties devolving from marriage.’

20.      The referring court explains that, for the purposes of the definitive dissolution of marriage (divorce), the applicable provision ratione temporis is Article 3, first paragraph, indent 2(b), of Legge n. 898 (Disciplina dei casi di scioglimento del matrimonio) (Law No 898 (Rules applicable in the event of dissolution of marriage)) of 1 December 1970, (6) which is worded as follows:

‘Dissolution or cessation of the civil effects of marriage may be applied for by either of the spouses:

…

2)      in cases where:

…

(b)      the judicial separation of the spouses has been declared by a judgment which has acquired the force of law or a consensual separation has been judicially confirmed or de facto separation has occurred when the de facto separation commenced at least two years prior to 18 December 1970. In all the above cases, in order for an application to be made for dissolution or cessation of the civil effects of a marriage, the separation must have lasted without interruption for at least three years from the time at which the spouses appeared before the President of the Court in legal separation proceedings, even where contentious proceedings have been converted into consensual proceedings.’

21.      The referring court adds that parental responsibility and child maintenance obligations are governed in the same way, in the event of separation and divorce, by Article 337a to 337g of the Civil Code.

II.    Facts of the main proceedings and the questions referred for a preliminary ruling

22.      Mr Liberato and Ms Grigorescu were married in Rome (Italy) on 22 October 2005 and lived together in Italy until the birth of their child on 20 February 2006. The matrimonial relationship deteriorated progressively. The mother took the child to Romania and did not return to the family home in Italy. (7)

23.      By application of 22 May 2007 to the Tribunale di Teramo (District Court, Teramo, Italy), Mr Liberato sought legal separation and custody of the child. Ms Grigorescu entered an appearance and sought a declaration that the separation was attributable to her husband, together with sole custody of the child and a contribution from the father to the child’s maintenance.

24.      By judgment of 19 January 2012, (8) the Tribunale di Teramo (District Court, Teramo) pronounced legal separation of the spouses, attributable to Ms Grigorescu, and, by a separate order, referred the case back for a decision on the opposing claims concerning parental responsibility.

25.      While those parental responsibility proceedings were still pending in Italy, Ms Grigorescu brought proceedings before the Judecãtoria Bucureşti (Court of First Instance, Bucharest, Romania) on 30 September 2009, seeking divorce, sole custody of the child and a contribution from the father to the child’s maintenance.

26.      In the context of the latter proceedings, Mr Liberato entered an appearance and, as a preliminary matter, raised an objection of lis pendens on the grounds that the separation proceedings had been brought in Italy first. Nonetheless, by a judgment of 31 May 2010, the Judecãtoria Bucureşti (Court of First Instance, Bucharest) pronounced the dissolution of the marriage, awarded custody of the child to the mother, set out the father’s visiting arrangements and determined the amount of maintenance payable by the father for the child.

27.      That judgment acquired the force of res judicata following a judgment of the Curtea de Apel București (Court of Appeal, Bucharest, Romania) of 12 June 2013 which confirmed the judgment of the Tribunalul București (Regional Court, Bucharest, Romania) of 3 December 2012, having dismissed the appeal brought by Mr Liberato against the judgment of 31 May 2010.

28.      The separation proceedings in Italy subsequently led to a judgment of the Tribunale di Teramo (District Court, Teramo) of 8 July 2013. The Tribunale di Teramo (District Court, Teramo) awarded sole custody of the child to the father, ordered the immediate return of the child to Italy. The court also set out arrangements for the mother to make visits to Italy, under the supervision of the social services and the public prosecutor, and determined that the mother should make a contribution towards the maintenance of the child.

29.      The Tribunale di Teramo (District Court, Teramo) dismissed the application made by Ms Grigorescu, on an incidental basis, for the recognition in Italy of the divorce judgment of the Tribunalul București (Regional Court, Bucharest) of 3 December 2012, pursuant to Regulation No 2201/2003. The Tribunale di Teramo (District Court, Teramo) observed that the divorce proceedings had been commenced in Romania in 2009, after the legal separation proceedings brought in Italy in 2007, and that the Tribunalul București (Regional Court, Bucharest) had infringed Article 19 of Regulation No 2201/2003 by failing to stay the proceedings before it.

30.      Ms Grigorescu appealed against that judgment and, as a preliminary matter, made an incidental application for the recognition of the judgment of the Curtea de Apel București (Court of Appeal, Bucharest) of 12 June 2013 which dismissed the objection of lis pendens on the grounds, according to the referring court, that the two cases did not involve the same cause of action under Romanian procedural law. (9) By a judgment of 31 March 2014, the Corte d’appello di L’Aquila (Court of Appeal, L’Aquila, Italy) reversed the judgment delivered at first instance and upheld the objection that the divorce judgment delivered by the Romanian courts, which related also to custody and maintenance of the child, had acquired the force of res judicata. The Corte d’appello di L’Aquila (Court of Appeal, L’Aquila) held that a breach of the rules on lis pendens under EU law by the judicial authorities seised second, in other words, by the Romanian courts, was not ‘relevant’ when examining the conditions for the recognition of definitive measures taken by Romania, that the Romanian judgments were not irreconcilable with the judgments given in Italy and that there were no grounds - in particular, no public policy grounds - for withholding recognition of the Romanian judgment.

31.      Mr Liberato brought an appeal in cassation against that judgment of the Corte d’appello di L’Aquila (Court of Appeal, L’Aquila).

32.      The Corte suprema di cassazione (Supreme Court of Cassation, Italy), the referring court, states that the judgment given in Romania concerns marriage, parental responsibility and maintenance obligations. The proceedings for legal separation commenced in Italy involved the same claims, except for that relating to marriage, which was not identical, since the Italian legal system requires conditions prescribed by law to be met for spouses to be legally separated, prior to divorce.

33.      The referring court explains, first, that there are no grounds under Article 22(c) of Regulation No 2201/2003, under Article 23(e) of the same regulation or under Article 34(4) of Regulation No 44/2001 that would allow recognition of the Romanian judgment to be withheld in relation to, respectively, marriage, parental responsibility or maintenance obligations.

34.      According to the referring court, it is therefore necessary to examine whether there has been a breach of the relevant provisions concerning lis pendens under EU law, namely Article 19 of Regulation No 2201/2003 and Article 27 of Regulation No 44/2001, on the part of the courts of the Member State which delivered the judgment recognition of which is being sought and, in the event that both provisions have been breached, then whether that breach can be regarded as a ground for withholding recognition due to it being manifestly contrary to public policy.

35.      The referring court stresses the fact that lis pendens under EU law is the expression of the cardinal principle of the system of trust and cooperation underlying the free movement of judicial pronouncements between Member States. Lis pendens is based on three principles: the autonomy of that concept; the prohibition on the court second seised from reviewing the jurisdiction of the court first seised; and the priority in time of the court first seised, which is binding on the court second seised.

36.      The referring court notes that the objection of lis pendens raised by Mr Liberato at each stage of the Romanian proceedings, and in particular before the Curtea de Apel București (Court of Appeal, Bucharest), was rejected on the basis that the cause of action and parties must be totally identical, both under the Romanian domestic rules on lis pendens and also under the concept of ‘lis pendens’ in EU law, as it appears in Article 19(1) of Regulation No 2201/2003. The referring court concludes that the Romanian courts misconstrued the wording of Article 19(1) of Regulation No 2201/2003 which groups all proceedings relating to divorce, legal separation or marriage annulment into one category and therefore does not require the cause of action to be identical.

37.      The referring court also notes that the decision relating to child maintenance is causally subordinate to the decision relating to parental responsibility and cannot be separated from it logically or legally, since it depends on the main decision. The referring court considers that the conditions in Article 28 of Regulation No 44/2001, when read in the light of Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, (10) are met, even though that provision is not directly applicable. (11)

38.      According to the referring court, the final Romanian judgment recognition of which is sought was delivered by a court which did not have jurisdiction to hear the case, as it was seised second.

39.      The referring court is of the view that the infringement concerns not only the application of the test for determining jurisdiction between two Member States but also, in view of the function of lis pendens in the system of automatic recognition and enforcement of judicial decisions of the Member States, the implementation of a principle of procedural public policy under EU law, consisting in the legitimate free movement of judicial decisions within the European Union. The principle that priority is accorded to the proceedings commenced first, which underlies the procedural rules on lis pendens, is of central importance in EU procedural law because its purpose is to avoid judicial initiatives the sole intention of which is to frustrate the outcome of cases in which a party disagrees with decisions on the merits that have already taken by the competent court first seised, whose jurisdiction has, as in the present case, been incontestably accepted.

40.      The referring court also notes that Article 24 of Regulation No 2201/2003, which prohibits the review of jurisdiction of the court of origin, refers to the rules determining jurisdiction contained in Articles 3 to 14 of that regulation but not to the rule in Article 19 thereof.

41.      In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does an infringement of the rules on lis pendens contained in Article 19(2) and (3) of Regulation No 2201/2003 affect only the determination of jurisdiction, with the consequent application of Article 24 [thereof] or, on the contrary, may it constitute a ground for withholding recognition, in the Member State whose court has been seised first, of a judicial ruling made in the Member State whose court has been seised at a later stage, in the light of procedural public policy, having regard to the fact that [that Article 24] refers only to the rules determining jurisdiction contained in Articles 3 to 14 of that regulation and not to Article 19 thereof?

(2)      Does the interpretation of Article 19 of Regulation No 2201/2003, seen only as a test for the conferral of jurisdiction, conflict with the EU-law concept of “lis pendens” and with the function and purpose of that provision, which is intended to lay down a set of binding rules, reflecting procedural public policy, thereby guaranteeing the creation of a common area characterised by reciprocal procedural trust and fairness between the Member States, within which the automatic recognition and free movement of judicial decisions may operate?’

III. My analysis

42.      In order to determine the consequences of the failure to comply with the rules on lis pendens, in the context of the case in the main proceedings, it is first of all necessary to identify all the provisions that must be interpreted, together with the conditions that must be met for the lis pendens mechanism to be implemented.

A.      Preliminary observations

1.      The reformulation of the questions referred for a preliminary ruling

43.      It should be noted that the referring court frames its questions in relation to Regulation No 2201/2003 alone, whereas it is apparent from the decision to refer that the case in the main proceedings concerns not only parental responsibility but also maintenance obligations, which are not covered by that regulation. (12)

44.      The questions raised must therefore be reformulated by reference to Article 5(2) of Regulation No 44/2001, which is applicable since the proceedings were commenced prior to 18 June 2011. (13)

45.      By the two questions that it has referred for a preliminary ruling, and which must be examined together, the referring court could also be considered, in essence, to be asking whether Article 35(3) of Regulation No 44/2001 and Article 24 of Regulation No 2201/2003 can be interpreted to mean that there is no preclusion on a breach by the court second seised of the rules on lis pendens, set out in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003, constituting a ground for withholding recognition of a decision delivered by that court, on the basis of an infringement of public policy in the Member State in which enforcement is sought, involving procedural rules that are considered essential for the EU legal order.

2.      Similarity of the mechanism laid down by Regulations No 44/2001 and No 2201/2003 in the event of lis pendens

46.      Both of these regulations require the second court to decline jurisdiction in the event of lis pendens. (14) The Court has noted that ‘Article 19 of Regulation No 2201/2003 [(15)] is expressed in very similar terms to those used in Article 27 of Regulation No 44/2001, which replaced Article 21 of the Brussels Convention [(16)], and establishes a mechanism for dealing with cases of lis pendens that is equivalent to that provided for by Article 27 of Regulation No 44/2001 and Article 21 of the Brussels Convention. Account must therefore be taken of the considerations of the Court in relation to those last two articles’. (17)

3.      The mechanism established in the event of lis pendens and its purpose

47.      As the Court has already stated, in relation to Regulation No 2201/2003, ‘the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens (see, by analogy, with regard to Regulation No 44/2001, judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances, C-1/13, EU:C:2014:109, paragraph 40)’. (18)

48.      That mechanism, which ‘is based on the chronological order in which the courts are seised’, (19) means that the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

49.      The Court has clarified that, ‘in order for the jurisdiction of the court first seised to be established within the meaning of Article 19(1) of [Regulation No 2201/2003], it is sufficient that the court first seised has not declined jurisdiction of its own motion and that none of the parties has contested that jurisdiction before or up to the time at which a position is adopted which is regarded in national law as being the first defence on the substance submitted before that court (see, by analogy, judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances, C-1/13, EU:C:2014:109, paragraph 44)’. (20)

50.      More specifically, the Court has recommended that, ‘according to what is permitted by provisions of its national law, the court second seised may, where the opposing parties in two sets of proceedings are the same, seek information from the party relying on the objection of lis pendens on the existence of the alleged proceedings and the content of the action. Moreover, taking into consideration the fact that Regulation No 2201/2003 is based on judicial cooperation and mutual trust, that court may advise the court first seised that an action has been brought before it, alert the court first seised to the possibility of lis pendens, and invite the court first seised to provide it with information on the action pending before it and to state its position on its jurisdiction within the meaning of Regulation No 2201/2003 or to notify it of any judgment already delivered in that regard. Lastly, the court second seised will be able to approach the central authority in its Member State’. (21)

51.      The mandatory nature of the rules on lis pendens set out in Article 19 of Regulation No 2201/2003 (22) can be justified by the purpose of the rules. The Court has stated that ‘those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom’. (23)

52.      They play a part in the implementation of the principle of automatic recognition of judgments delivered in the Member States, which is based on the principle of mutual trust.

4.      The conditions for lis pendens and their application to the case in the main proceedings

53.      The Court has consistently held that the concepts used to determine a situation of lis pendens, in particular in Regulations No 44/2001 and No 2201/2003, should be considered as autonomous.

54.      Thus, in relation to parental responsibility, the Court has expressly mentioned this principle on the basis of the objectives pursued by Regulation No 2201/2003 and on ‘the fact that the wording of Article 19(2) thereof, instead of referring to the term “lis pendens” as used in the different national legal systems of the Member States, lays down a number of substantive conditions as components of a definition’. (24)

55.      In proceedings relating to matrimonial matters, it is clear from Article 19(1) of Regulation No 2201/2003, unlike Article 19(2), that the sole criterion to be taken into account when establishing the existence of concurrent proceedings is that relating to the parties. The Court had occasion to state this expressly in the judgment of 6 October 2015, A. (25) The Court held that ‘a situation of lis pendens may exist where two courts of different Member States are seised … of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce’. (26)

56.      If, in matrimonial proceedings, there are claims relating to parental responsibility, the rules on lis pendens relating to dissolution of marriage will apply. (27)

57.      The same is true of matters relating to maintenance when the matter is ‘ancillary to proceedings concerning the status of a person’, pursuant to Article 5(2) of Regulation No 44/2001.

58.      After the divorce has been decreed, in accordance with Article 12(2)(b) of Regulation No 2201/2003, there is a requirement for the cause of action to be the same in matters of parental responsibility, pursuant to Article 19(2) of that regulation. (28) In matters relating to maintenance, the rules on lis pendens set out in Article 27 of Regulation No 44/2001, applicable to the present case, require the cause of action and the parties to be the same.

59.      In addition, it should be noted that the priority given to the court first seised lasts until that court declines jurisdiction following an examination of its own jurisdiction, which is obligatory under Article 17 of Regulation No 2201/2003, (29) at every stage of the proceedings. (30)

60.      Thus, in the case in the main proceedings, as soon as the Romanian court was seised, it should have implemented the mechanism for lis pendens both in relation to the decision on the dissolution of the marriage and to its consequences for the child, who lived in Romania, by virtue of prorogation of jurisdiction of the Italian court. (31)

61.      It appears from the judgment of the Curtea de Apel București (Court of Appeal, Bucharest) of 12 June 2013 that the Romanian court failed to properly apply EU law (32) in rejecting the objection of lis pendens raised by Mr Liberato on the basis of the matrimonial proceedings. The Romanian court first referred to domestic Romanian law which sets out conditions for lis pendens and to the force of res judicata to find that ‘it is clear from the wording of Article 19 [of Regulation No 2201/2003], which lists three separate instances where lis pendens could arise, namely “divorce, legal separation or marriage annulment between the same parties”, that the two concurrent sets of proceedings must have only one of the three objects in common and not two different objects out of those expressly and exhaustively listed in the text. … In the present case, the two sets of proceedings each have a different object, namely separation in Italy and divorce in Romania, which excludes the application of Article 19 of Regulation No 2201/2003. The appeal court was right to find that the Romanian system does not recognise the status of separation. It is therefore clear that there can be no commonality with separation proceedings brought before the courts of another Member State. Even if separation were a recognised status, divorce and separation are not the same thing’.

62.      In addition, it should be noted that the objection of lis pendens raised by Mr Liberato at each stage of the proceedings was based on prorogation of jurisdiction in connection with the application for legal separation and not on the rules applicable to parental responsibility or maintenance.

63.      In that regard, it may be observed that, following the matrimonial judgment given by the Italian court on 19 January 2012, (33) the question of lis pendens becomes considerably more difficult to analyse. (34)Lis pendens could only continue to be an issue in relation to parental responsibility as a result of the Italian court examining, and confirming, its own jurisdiction. In my view, that could only arise from the interpretation of the provisions of Article 12(2)(b) of Regulation No 2201/2003, (35) which I believe must be combined with the investigation into the best interests of the child which, with the mother’s agreement, had justified the prorogation of jurisdiction when proceedings commenced. (36)

64.      Since those conditions must be met in order for the Italian court to have jurisdiction to rule, on an incidental basis, on the recognition of the Romanian judgment which brought the lis pendens to an end, it is up to the referring court to ensure that the conditions were examined. (37)

65.      In the light of all these factors, it is then necessary to identify the consequences that flow from a failure to comply with the rules on lis pendens, taking account of the circumstances of the case in the main proceedings.

B.      The consequences of failure to comply with the rules on lis pendens

66.      The particular circumstances of the case in the main proceedings should be borne in mind from the outset. The court first seised, before which the same applications between the same parties are still pending, (38) must rule on an incidental claim for recognition of the final judgment delivered by the court second seised.

67.      Consequently, for that reason alone, the decision of the Court in the case that gave rise to the judgment of 22 December 2010, Mercredi, (39) according to which, in a case of lis pendens, a judgment in proceedings relating to parental responsibility delivered by a court second seised, in breach of the obligation to stay proceedings, (40) ‘has [no] effect’ on the judgment which has to be delivered by the court first seised, (41) cannot be transposed to the case in the main proceedings, despite the assertions to the contrary of the European Commission. The Court stated in paragraph 67 of the judgment of 22 December 2010, Mercredi (42) that the contested decision delivered by the court second seised was not final. In addition, uncertainty over the child’s residence and the overlap with the proceedings seeking the return of the child also justified the particular solution used in that case.

68.      Therefore, in the case in the main proceedings, the question of the breach of the rules on lis pendens must be examined in the light of the grounds for non-recognition set out in Regulations No 2201/2003 and No 44/2001.

69.      In the context of the pending proceedings which no longer relate to dissolution of the marriage, (43) the referring court correctly found that, out of the grounds for non-recognition provided for in Regulation No 2201/2003, it is only the test of being manifestly contrary to the public policy of the Member State in which recognition of a judgment relating to parental responsibility is sought, (44) referred to in Article 23(a) of Regulation No 2201/2003, that must be analysed in conjunction with Article 24 of that regulation. Article 24 prohibits the application of the public policy test to the rules relating to jurisdiction set out in Articles 3 to 14 of the regulation.

70.      The Court has already examined such a question in the judgment in P.

71.      The difference between the circumstances at issue in that case (45) and the circumstances in the case in the main proceedings does not seem to me to be major since, first, the judgment of the Court relates to how the rules on jurisdiction or the coordination of parallel proceedings connect with the rules that allow the recognition of judgments delivered in a Member State to be refused and, secondly, it is based on general principles which repeat almost identically those in the judgment of 16 July 2015, Diageo Brands. (46)

72.      In the judgment in P, the Court indicated its wish to adopt an approach that was similarly restrictive to the grounds for non-recognition of a judgment, referring to the approach used in cases where Regulation No 44/2001 applies. Conveniently for the case in the main proceedings, in view of the two applicable regulations, that would warrant a finding that the same decision may serve as the basis for the response to the questions referred by the referring court for a preliminary ruling.

73.      The Court recalled, first, that, ‘as stated in recital 21 in [the] preamble [to Regulation No 2201/2003], that regulation is founded on the idea that the recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required’ (47) and, secondly, that ‘in that system, Article 23 of Regulation No 2201/2003, which sets out the grounds on which recognition of a judgment in matters of parental responsibility may be refused, must be interpreted strictly, in so far as it is an obstacle to the attainment of one of the fundamental objectives of that regulation’. (48)

74.      Those objectives and principles explain why the EU legislature lays down, in Article 24 of Regulation No 2201/2003, a prohibition on any review of the jurisdiction of the court of the Member State (49) and ‘even provides expressly that Article 23(a) of the regulation cannot be used to carry out such a review’, (50) referring to Articles 3 to 14 of that regulation. (51) That fundamental principle, from which it is not possible to derogate directly or indirectly, also results from the standardisation of the rules on jurisdiction and the presumption that those rules are examined regularly by any court when it is seised.

75.      For all of the above reasons, in the judgment in P the Court extended to Article 15 of Regulation No 2201/2003 the prohibition on applying the test of there being an infringement of the public policy of the Member State in which recognition is sought. (52)

76.      However, even though Article 19 of that regulation appears, as does Article 15, in Chapter II of the regulation, entitled ‘Jurisdiction’, it does not supplement the specific provisions for the conferral of jurisdiction found in Sections 1 and 2, as it forms part of Section 3 relating to ‘Common provisions’.

77.      Even so, it is my opinion that the solution in the judgment in P must be transposed. When the court first seised, ruling on an incidental claim for recognition, examines whether the rules on lis pendens have been correctly applied by the court second seised and, therefore, the reasons why it has not declined jurisdiction, the court first seised is reviewing the second court’s examination of its jurisdiction. However, it is prohibited from doing so under Article 24 of Regulation No 2201/2003.

78.      In addition, because of the conditions for implementing the rules on jurisdiction, which I have set out above, that review is not limited to an examination at the time when proceedings are commenced. Consequently, an assessment of the severity of failure to comply with those rules at the stage of recognition of the judgment could turn out to be equally problematic. It is quite conceivable that, particularly in matters of parental responsibility and cases of prorogation of jurisdiction, following exchanges between the courts, the court first seised declines jurisdiction on the grounds of the jurisdiction criteria, namely proximity to the place of residence of the child and the child’s best interests. (53)

79.      Furthermore, as the Court noted in the judgment in P, ‘the court of the State in which recognition is sought cannot, without calling into question the purpose of Regulation No 2201/2003, refuse to recognise a judgment from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment.’ (54) Thus it seems to me that it would be difficult to justify treating a failure to resolve the conflict of jurisdiction (55) in cases of parallel proceedings more strictly than a failure to examine jurisdiction, (56) or errors made at that time, which are exempt from review under the provisions of Article 24 of Regulation No 2201/2003 and several other European regulations.

80.      I deduce from all these factors that, despite the lack of express reference to Article 19 of Regulation No 2201/2003 in Article 24 thereof, Article 24 should be interpreted to mean that the prohibition on reviewing the jurisdiction of the court of origin contained in that article also applies in cases of breach of the rules on lis pendens. (57)

81.      In relation to maintenance matters, it should be noted that no difficulties are presented by the wording of Article 35(3) of Regulation No 44/2001. (58)

82.      In the light of all of these considerations, I propose that the Court should rule that Article 35(3) of Regulation No 44/2001 and Article 24 of Regulation No 2201/2003 must be interpreted as precluding that a breach of the rules on lis pendens, set out in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003, by the court second seised constitutes a ground for non-recognition of the judgment delivered by that court, on the basis that it is contrary to the public policy of the Member State in which recognition is sought.

83.      For the sake of completeness, I would point out that, if it is agreed that the public policy test is applicable, the judgment in P, once again, sets the limits which need to be reaffirmed. (59)

84.      That judgment is based on principles laid down on numerous occasions in connection with the interpretation of grounds for non-recognition that feature in several regulations governing the free movement of judgments (60) and on the requirement of the EU legislature to take into account the ‘best interests of the child’, (61) in the case of a refusal to recognise a judgment delivered in a parental responsibility matter, whilst still keeping in mind the ongoing possibility that decisions concerning the child may be amended.

85.      It is therefore appropriate to declare again that ‘Article 23(a) of Regulation No 2201/2003 must be interpreted as meaning that, in the absence of a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order, that provision does not allow a court of that Member State which considers that it has jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which has ruled on the custody of that child.’ (62)

86.      The referring court believes that, due to the function of the rules on lis pendens in the system for automatic recognition of judgments within the EU, a breach of those rules undermines a principle of procedural public policy which guarantees the free movement of judgments.

87.      That definition cannot be accepted, however, as those rules are not of comparable importance to the rules used by the Court in finding that the recognition of a judgment would undermine European procedural public policy. (63) Such an assessment must be consistent with the principles set out above, namely limitation of the grounds for non-recognition set out in Article 23 of Regulation No 2201/2003, the exceptional nature of recourse to the public policy clause and the prohibition on the court in the Member State in which recognition of a judgment issued by another Member State is sought from refusing to recognise that judgment on the sole ground that the court believes that EU law was misapplied.

88.      I am perfectly aware of the impact of my analysis in the well-known context of the exploitation of the rules on lis pendens, fuelled by the wide array of heads of jurisdiction available under Regulation No 2201/2003, especially in cases where proceedings are brought before the court of a Member State whose law does not permit divorce to be sought immediately. (64)

89.      It could also be argued that, due to the very broad scope of the solution, which cannot be confined to regulations applicable to family matters, there is a serious risk of the pillars of the principle of automatic recognition of judgments being undermined by the failure to sanction a mandatory rule that appears in numerous European regulations.

90.      Such a fear must, however, founder given that those regulations are based precisely on cooperation and mutual trust between the courts of Member States and that the same logic must be adopted as that underpinning the recognition and enforcement of judgments delivered in each Member State. (65)

91.      As a matter of principle, it is therefore inconceivable that there will be a rise in cases where the rules on lis pendens are not complied with, especially since, unlike the Romanian court in the case in the main proceedings, the courts of Member States have been familiar with the interpretation of Article 19(1) of Regulation No 2201/2003 since 2015 and in future, thanks to the case in the main proceedings, will benefit from a supplementary interpretation by the Court of the way in which the rules on lis pendens are implemented in family disputes. (66)

92.      In addition, it must be stressed that courts can avert the difficulties inherent in procedural conflicts through judicial cooperation and dialogue between courts, as described above, (67) also drawing from the provisions of Article 29(2) of Regulation No 1215/2012 and Article 17 of Regulations 2016/1103 and 2016/1104. (68)

93.      I would also argue that, in parental responsibility matters, in view of the fact that any solution must be shaped by the best interests of the child, (69) the prevention of difficulties in recognising judgments is mandatory. In that regard, in the case in the main proceedings, it would have been advisable to allow the Court to rule sooner (70) on the lis pendens conditions. Implementation of the procedure provided for in Article 15 of Regulation No 2201/2003 could also have been contemplated at the request of one of the parties or on the initiative of one of the courts. (71)

94.      Furthermore, if, in exceptional circumstances, a breach of the rules on lis pendens occurs as a result of ignorance of the applicable regulations and of the Court’s case-law or if the breach has resulted in harm to more important procedural rights such as those which, for example, ensure that the views of the parent with whom the child does not live are expressed (72) and that judgments are delivered within a reasonable time, it seems to me that it would be justifiable to invoke non-recognition on the basis of an infringement of public policy in the Member State in which recognition is sought involving fundamental rights recognised under EU law.

95.      Finally, it should be recalled that the opportunity to bring infringement proceedings can be examined by the Commission, (73) in the event of the misapplication of national law or EU law or the failure of the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, which must be implemented in order to prevent a breach of public policy occurring. (74)

IV.    Conclusion

96.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:

Article 35(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Article 24 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 must be interpreted as precluding that a breach of the rules on lis pendens, contained in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003, by the court second seised should constitute a ground for withholding recognition of a judgment delivered by that court, on the basis of an infringement of public policy of the Member State in which recognition is sought.

1      Original language: French.

2      OJ 2003 L 338, p. 1.

3      C-455/15 PPU, EU:C:2015:763 (‘the judgment in P’).

4      For the need to refer to this regulation, see points 43 and 44 of this Opinion.

5      OJ 2001 L 12, p. 1.

6      GURI No 306, 3 December 1970, p. 8046.

7      Final judgment No 1072 of the Curtea de Apel București (Bucharest Court of Appeal, Romania), 3rd Civil Chamber for Minors and Family, of 12 June 2013, annexed to the decision to refer and produced by Mr Liberato, states that ‘the court found that the parties married in Italy in October 2005 and lived, alternately, in Romania and Italy until October 2006. The parties have been separated since then and the wife and minor child born of the relationship live exclusively in Romania. Thus, since 2006, Ms Grigorescu has lived exclusively in Romania, which has been her sole residence’. It is clear from the decision to refer that the lawfulness of the removal or non-return of the child is not a matter at stake in the arguments.

8      The referring court has confirmed that the judgment acquired the force of res judicata.

9      For further details of the reasoning given, see point 61 of this Opinion.

10      OJ 2009 L 7, p. 1.

11      According to the third subparagraph of Article 76 of Regulation No 4/2009, the regulation applied from 18 June 2011.

12      My proposed reformulation of the question is similar to that carried out by the Court in the judgment of 15 February 2017, W and V (C-499/15, EU:C:2017:118, paragraphs 44 to 46 and the case-law cited).

13      The principal claim was brought on 22 May 2007 before the Tribunale di Teramo (District Court, Teramo), which deferred examination of the dependent claims by a decision of 19 January 2012 and ruled on them by a non-definitive decision of 8 July 2013.

14      It should be noted that the requirement to observe the priority of proceedings according to the time at which they are brought also appears in Regulation No 4/2009, in Article 12 thereof. This article could be said to be stricter than Article 19 of Regulation No 2201/2003, at least in the French version, in that it requires three elements to be identical (in French: ‘le même objet … la même cause … les mêmes parties’). [Note, however, that the English version of the said Article 12 renders this simply as ‘the same cause of action and between the same parties’.] The same is true of Article 17 of three other regulations, these being: 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 (OJ 2012 L 201, p. 107); Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property (OJ 2016 L 183, p. 1); and Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (OJ 2016 L 183, p. 30). The latter two regulations require that, where proceedings are stayed due to lis pendens, ‘upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised’. Article 29 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), is worded in a similar way. It should be noted that the mechanism provided for in Article 33 of that regulation in the event of extra-European lis pendens, which amounts to a major innovation, is not the same.

15      Regulation No 2201/2003 repealed 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). Article 11(2) of Regulation No 1347/2000 contains an exception from the requirement for the cause of action and parties to be identical only in the case of divorce.

16      Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1998 C 27, p. 1), as modified by successive conventions relating to the accession of new Member States to the convention.

17      See judgment of 6 October 2015, A (C-489/14, EU:C:2015:654, paragraph 27).

18      See judgment of 6 October 2015, A (C-489/14, EU:C:2015:654, paragraph 29).

19      See judgment of 6 October 2015, A (C-489/14, EU:C:2015:654, paragraph 30).

20      See judgment of 6 October 2015, A (C-489/14, EU:C:2015:654, paragraph 34). This interpretation, inspired by that of Article 27 of Regulation No 44/2001, is equally applicable to Article 19(2) of Regulation No 2201/2003. This solution enables cases to be resolved where the court first seised has not expressly ruled on its own jurisdiction.

21      See judgment of 9 November 2010, Purrucker (C-296/10, EU:C:2010:665, paragraph 81). In that regard, the European Judicial Network in civil and commercial matters (EJNCCM) plays a key role in simplifying and accelerating judicial cooperation in applying these provisions relating to lis pendens or Article 15 of Regulation No 2201/2003.

22      The same is true of Article 27 of Regulation No 44/2001, by contrast with the provisions applicable in the event of related actions (Article 28 of that regulation). It should be noted that Regulation No 2201/2003, as with the preceding Regulation No 1347/2000, does not contain any particular provision on related actions.

23      See judgment of 6 October 2015, A (C-489/14, EU:C:2015:654, paragraph 29 and the case-law cited).

24      See judgment of 9 November 2010, Purrucker (C-296/10, EU:C:2010:665, paragraph 66 and the case-law cited).

25      C-489/14, EU:C:2015:654. It should be noted that that judgment was delivered more than two years after the final decision of the Romanian court in the case in the main proceedings. However, at that date, the autonomous nature of the concept of ‘lis pendens’ had already been stated in several judgments of the Court.

26      Paragraph 33 of that judgment. Such cases can also be categorised as ‘quasi lis pendens’ or ‘false lis pendens’. That expression was used by Borrás, A., in the Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (OJ 1998 C 221, p. 27, in particular paragraph 54). That explanation relates to Article 11 of Regulation No 1347/2000, which is essentially repeated in Article 19 of Regulation No 2201/2003 in a simplified form, requiring only that proceedings relating to divorce, legal separation or marriage annulment are brought between the same parties, regardless of their procedural position.

27      See, to that effect, Gaudemet-Tallon, H., ‘Divorce - Divorce prononcé en France - Introduction - Compétence des tribunaux français - Particularités de l’instance’, JurisClasseur - Droit international, LexisNexis, Paris, March 2017, fascicle 547-10, in particular paragraph 135.

28      See, in relation to the interpretation of these concepts, judgment of 9 November 2010, Purrucker (C-296/10, EU:C:2010:665, paragraphs 67 and 68 and the case-law cited). See also, by way of illustration, judgment of 22 December 2010, Mercredi (C-497/10 PPU, EU:C:2010:829, paragraphs 68 and 69).

29      The same is true when, under Article 15 of Regulation No 2201/2003, at the initiative of either of the courts concerned, the jurisdiction of the court better placed to hear the case is given priority.

30      In relation to the importance of this examination in matters of parental responsibility and the grounds for decisions made on that point, see judgments of 15 July 2010, Purrucker (C-256/09, EU:C:2010:437, paragraph 73 and the case-law cited), and 15 February 2017, W and V (C-499/15, EU:C:2017:118, paragraphs 51 and 54). In relation to the obligation to carry out the examination at all stages of proceedings, a comparison can be drawn with the judgment of 12 November 2014, L (C-656/13, EU:C:2014:2364, paragraph 58 and the case-law cited), and the case in IQ (C-478/17), currently pending, concerning the conditions for the application of Article 15 of Regulation No 2201/2003. See Opinion of Advocate General Wathelet in that case (C-478/17, EU:C:2018:552).

31      Under Article 12(1) of Regulation No 2201/2003, prorogation of jurisdiction assumes that the mother has not challenged the jurisdiction of the Italian court (see point 23 of this Opinion) and that the Italian court has ensured that its jurisdiction is in the best interests of the child (see, by analogy, judgment of 1 October 2014, E. (C-436/13, EU:C:2014:2246, paragraph 44)). This can be compared to the order of the President of the Court of 16 January 2018, PM (C-604/17, not published, EU:C:2018:10, paragraphs 27 to 29), and the judgment of 19 April 2018, Saponaro and Xylina (C-565/16, EU:C:2018:265, paragraphs 23, 24 and 33 to 35 and the case-law cited).

32      See footnotes 25 and 26 of this Opinion.

33      The consequences of the legal separation judgment do not appear to have been debated, although two further judgments were given in Romania after that date, namely the judgment of 3 December 2012 and the judgment of 12 June 2013 rejecting Mr Liberato’s appeal.

34      According to Article 12(2)(a) of Regulation No 2201/2003, prorogation of jurisdiction ceases as soon as judgment relating to the legal separation becomes final. In addition, as the Court noted in the judgment of 28 June 2018, HR (C-512/17, EU:C:2018:513, paragraph 59 and the case-law cited), concerning the interpretation of Article 8(1) of Regulation No 2201/2003, ‘the EU legislature considers that the courts geographically closest to the child’s place of habitual residence are generally the best placed to assess the measures to be taken in the interests of that child’.

35      The Court has not expressly ruled on the application of that provision. See, to the same effect, the Opinion of Advocate General Wathelet in IQ (C-478/17, EU:C:2018:552, point 45). That interpretation may be a result of the commentary of Pataut, É., and Gallant, E., ‘Article 12: Prorogation of jurisdiction’, in Magnus, U., and Mankowski, P., European Commentaries on Private International Law, Brussels IIbis Regulation, Vol. IV, Sellier European Law Publishers, Otto Schmidt, Cologne, 2017, paragraph 41 (p. 160). That scenario is not considered by Joubert, N., in ‘Autorité parentale - Conflits de juridictions’, JurisClasseur - Droit international, LexisNexis, Paris, March 2009, fascicle 549-20, in particular paragraph 44.

36      That analysis must be compared to that in the judgments of 1 October 2014, E. (C-436/13, EU:C:2014:2246, paragraphs 45 to 47 and 49), and of 15 February 2017, W and V (C-499/15, EU:C:2017:118, paragraphs 51 and 52).

37      In my opinion, it must be clear from the judgment delivered by the last Italian court that its ruling was given following an examination, with regard to the best interests of the child, of the prorogation of jurisdiction allowed after the first Italian court was seised in 2007.

38      By way of reminder, the parties must be identical in relation to maintenance matters. In relation to the matrimonial matter, the Italian court delivered a final judgment.

39      C-497/10 PPU, EU:C:2010:829.

40      See paragraphs 68 and 69 of that judgment.

41      See paragraph 70 of that judgment.

42      C-497/10 PPU, EU:C:2010:829.

43      On why a divorce judgment is not irreconcilable with a legal separation judgment, see the Explanatory Report of Borrás, A., cited in footnote 26, in particular paragraph 71.

44      The same is true in relation to maintenance matters. Article 34(1) and Article 35(3) of Regulation No 44/2001 apply.

45      The contested decision had been delivered by the court first seised. The dispute related to the place of residence of the child and, therefore, to the jurisdiction of that court which was alleged to have ruled in breach of the obligations in Article 15 of Regulation No 2201/2003.

46      C-681/13, EU:C:2015:471 (paragraphs 40 to 42 and 44).

47      Paragraph 35 of the judgment in P.

48      Paragraph 36 of the judgment in P. Very recently, the Court recalled in the judgment of 15 February 2017, W and V (C-499/15, EU:C:2017:118, paragraph 50 and the case-law cited), that the principle of mutual recognition of judicial decisions is the ‘cornerstone for the creation of a genuine judicial area’, those terms being taken from recital 2 of Regulation No 2201/2003.

49      Such a prohibition features in most regulations since it is an integral element of the principle of mutual trust. See, in particular, Article 45(3) of Regulation No 1215/2012 and Article 39 of Regulations 2016/1103 and 2016/1104. The Court regards it as a fundamental principle; see judgment of 28 March 2000, Krombach (C-7/98, EU:C:2000:164, paragraph 31).

50      See paragraph 42 of the judgment in P.

51      In making such reference, the wording of that article differs from Article 35(3) of Regulation No 44/2001, which is worded in general terms: ‘… the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction’.

52      See paragraph 45 of the judgment in P.

53      See judgment of 28 June 2018, HR (C-512/17, EU:C:2018:513, paragraph 59 and the case-law cited).

54      See paragraph 46 of the judgment in P, reiterating an established rule prohibiting the revision of a judgment (see, in particular, Article 36 and Article 45(2) of Regulation No 44/2001 and Article 26 of Regulation No 2201/2003).

55      Expression used in the judgments of 16 July 2009, Hadadi (C-168/08, EU:C:2009:474, paragraph 56), and of 9 October 2014, C (C-376/14 PPU, EU:C:2014:2268, paragraph 37).

56      See, by way of illustration, the judgment in P and the judgment of 15 February 2017, W and V (C-499/15, EU:C:2017:118). See, also, the observations of Joubert, N., in ‘La résidence de l’enfant du divorce face à la demande de modification de la décision relative à la garde et aux aliments’, Revue critique de droit international privé, Dalloz, Paris, 2018, pp. 138 to 142, in particular paragraph 9 (pp. 140 and 141).

57      Given the importance of this question, like the one dealt with in the judgment in P, an addition could be proposed in relation to Article 24 when Regulation No 2201/2003 is recast. It should be noted that no amendment to the rules on jurisdiction was made in the initial draft, namely the proposal for a Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (COM(2016) 411 final), nor in the European Parliament legislative resolution of 18 January 2018 on that proposal, available at the following address: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0017+0+DOC+XML+V0//EN. For the latest state of Council discussions relating to this project, see Europe Daily Bulletin No 12033, Agence Europe, 5 June 2018, p. 2.

58      See footnote 51 of this Opinion.

59      See paragraphs 35 to 39 of that judgment and the judgment of 16 July 2015, Diageo Brands (C-681/13, EU:C:2015:471), cited in paragraphs 37 and 39 of the judgment in P, which allows the same solution to be applied in maintenance matters, governed by Regulation No 44/2001.

60      In relation to Regulation No 44/2001, see, by way of recent illustration, judgment of 25 May 2016, Meroni (C-559/14, EU:C:2016:349, paragraphs 38 to 42 and the case-law cited).

61      See paragraph 39 of the judgment in P. See also point 93 of this Opinion.

62      See paragraph 53 of the judgment in P.

63      See judgments of 28 March 2000, Krombach (C-7/98, EU:C:2000:164), and of 2 April 2009, Gambazzi (C-394/07, EU:C:2009:219), compared to the judgment of 25 May 2016, Meroni (C-559/14, EU:C:2016:349).

64      By way of illustration of the way in which delaying tactics are favoured by the assimilation of separation to divorce and by delays in dealing with a divorce application as a result of the rule on lis pendens, see Bonomi, A., ‘La compétence internationale en matière de divorce, quelques suggestions pour une (improbable) révision du règlement Bruxelles II bis’, Revue critique de droit international privé, Dalloz, Paris, 2017, pp. 511 to 534, in particular pp. 528 to 530 (heading (a)) and the reference, in footnote 80, to the commentary of Mankowski, P., ‘Article 19: Lis pendens and dependent actions’, in Magnus, U., and Mankowski, P., op. cit., paragraph 37 (pp. 249 and 250).

65      See, to that effect, judgment of 16 July 2015, Diageo Brands (C-681/13, EU:C:2015:471, paragraph 40).

66      That interpretation will need to be taken in combination with judgments already delivered by the Court in relation to Regulation No 4/2009 applicable to maintenance matters since 18 June 2011.

67      See point 50 of this Opinion.

68      See, on that point, the very interesting proposals made by Niboyet, M.-L., and de Geouffre de la Pradelle, G., Droit international privé, 6th edition, Librairie générale de droit et de jurisprudence, ‘Manuels’ Collection, Paris, 2017, paragraphs 621 and 622 (pp. 424 to 426).

69      In relation to the limitations on staying proceedings due to lis pendens determined by the Court for situations where there has been a lack of response from the court first seised, see, by way of illustration, judgment of 9 November 2010, Purrucker (C-296/10, EU:C:2010:665, paragraphs 82 to 84). See also a more pronounced assertion of this principle in the Council proposal to recast Regulation No 2201/2003, cited in footnote 57 of this Opinion.

70      It should be noted that, in the present case, which relates to parental responsibility and maintenance applications made in respect of a child who was born in February 2006 and who has been living in Romania since October 2006, proceedings have been pending in Italy for 11 years (after proceedings were brought in May 2007, the first judgment on the substance of the case was given in July 2013, after a deferral in January 2012) and that the dispute relates to the recognition of a judgment delivered in Romania which became final five years ago (12 June 2013).

71      For a reminder of the general principle in cases where Article 15 of Regulation No 2201/2003 applies, see, in particular, judgment of 27 October 2016, D. (C-428/15, EU:C:2016:819, paragraph 43).

72      This can be compared to paragraph 44 of the judgment of 28 March 2000, Krombach (C-7/98, EU:C:2000:164), which states that ‘recourse to the public-policy clause must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention [of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by subsequent conventions relating to the accession of new Member States to that convention] itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin, as recognised by the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950]’, and the judgment of 25 May 2016, Meroni (C-559/14, EU:C:2016:349, paragraphs 44 to 46 and the case-law cited).

73      See judgment of 16 July 2015, Diageo Brands (C-681/13, EU:C:2015:471, paragraph 55).

74      See judgment of 25 May 2016, Meroni (C-559/14, EU:C:2016:349, paragraph 47 and the case-law cited).