Judicial cooperation in civil matters: regulation n. 2201/2003

TB, who has dual German and Italian nationality, married RD, an Italian national, in 2013 in Berlin, where their marriage was entered in the register of marriages. In 2017, they initiated extrajudicial divorce proceedings before the civil registrar of Parma (Italy). In accordance with Italian law, [1] they appeared several times before that registrar in order to express and confirm their wish to dissolve their marriage. At the end of that procedure, that registrar issued TB with the certificate referred to in Article 39 of the Brussels IIa Regulation, [2] certifying her divorce from RD.

Next, TB applied for the divorce to be entered in the register of marriages of Berlin. That request gave rise to a dispute as to whether the registration of the divorce required prior recognition by the Land competent judicial authority, provided for in German law for foreign decisions in matrimonial matters. Hearing an appeal, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to refer a question on the concept of ‘judgment' concerning divorce within the meaning of the Brussels IIa Regulation to the Court of Justice. In particular, the referring court asks whether the rules on recognition that that regulation lays down for judgments concerning divorce apply in the case of a divorce by extrajudicial means such as that provided for by Italian law, with the result that no prior recognition procedure is necessary in Germany.

The Court, sitting as the Grand Chamber, rules that a divorce decree drawn up by a civil registrar of a Member State, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes, in particular for the purposes of the application of the rule on recognition laid down in Article 21(1) of the Brussels IIa Regulation, a ‘judgment' within the meaning of Article 2(4) of that regulation.

Findings of the Court

In the first place, relying in particular on the definitions of ‘judgment' and ‘court' referred to in Article 2(1) and (4) of the Brussels IIa Regulation, the Court notes that that regulation covers divorces which have been granted in a Member State [3] at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities. Therefore, any judgment given by such competent extrajudicial authorities must, in principle, pursuant to Article 21 of the Brussels IIa Regulation, be automatically recognised in the other Member States.

In the second place, as regards the degree of control which must be exercised by the authority with jurisdiction in relation to divorce in order for the divorce decree which it draws up, in particular in a divorce by mutual consent, to be classified as a ‘judgment', the Court states, relying on its case-law [4] on the recognition of judgments, that any public authority called upon to pronounce a ‘judgment', within the meaning of Article 2(4) of the Brussels IIa Regulation, must retain control over the grant of the divorce. That condition means, in the context of divorces by mutual consent, that the public authority examines the conditions of the divorce in the light of national law and the actual existence and validity of the spouses' consent to divorce.

The Court also notes that that condition was also retained, from the point of view of continuity, in the Brussels IIb Regulation, [5] which, as a recast of the Brussels IIa Regulation, repealed the latter with effect from 1 August 2022. It follows from the legislative history of the Brussels IIb Regulation that the EU legislature did not seek to introduce new rules, but to ‘clarify', on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements between parties and, on the other hand, the criterion for distinguishing the concept of ‘judgment' from those of ‘authentic instrument' and ‘agreement between the parties', namely the criterion relating to the examination of the substance.

Therefore, where a competent extrajudicial authority approves, after an examination as to the substance of the matter, a divorce agreement, it is recognised as a ‘judgment', in accordance with Article 21 of the Brussels IIa Regulation and Article 30 of the Brussels IIb Regulation. By contrast, other divorce agreements which have binding legal effects in the Member State of origin are recognised, as the case may be, as authentic instruments or agreements, in accordance with Article 46 of the Brussels IIa Regulation and Article 65 of the Brussels IIb Regulation.

In the light of those considerations, the Court finds, in the present case, that there is a ‘judgment' within the meaning of Article 2(4) of the Brussels IIa Regulation.

Under Italian law, [6] the civil registrar must obtain, personally and on two occasions, within at least 30 days, the declarations made by each spouse, as a result of which he or she is satisfied that their consent to divorce is valid, free and informed. Furthermore, that registrar is to examine the content of the divorce agreement, ensuring, inter alia, that that agreement relates only to the dissolution or termination of the civil effects of the marriage, to the exclusion of any transfer of assets, and that the spouses do not have minor children or adult children who do not have legal capacity, have a severe disability or are not financially independent. If one or more of the statutory conditions laid down by Italian law are not fulfilled, the civil registrar is not entitled to pronounce a divorce under that law.

[1] Article 12 of Decreto-legge n 132 – Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell'arretrato in materia di processo civile (Decree-Law No 132 on urgent measures for out-of-court resolution and other actions to reduce the backlog in civil proceedings) of 12 September 2014 (GURI No 212 of 12 September 2014), converted into law, with amendments, by Law No 162 of 10 November 2014 (GURI No 261 of 10 November 2014) (‘Decree-Law No 132/2014').

[2] 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) (‘the Brussels IIa Regulation').

[3] Pursuant to Article 2(3) of the Brussels IIa Regulation, the term ‘Member State' covers all the Member States of the European Union, with the exception of the Kingdom of Denmark.

[4] Judgments of 2 June 1994, Solo Kleinmotoren (C-414/92, EU:C:1994:221), and of 20 December 2017, Sahyouni (C-372/16, EU:C:2017:988).

[5] 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 (OJ 2019 L 178, p. 1) (‘the Brussels IIb Regulation').

[6] Article 12 of Decree-Law No 132/2014.