(Reference for a preliminary ruling– Validity– Judicial cooperation in civil matters– Jurisdiction to hear and determine an application for divorce– Article18 TFEU– Regulation (EC) No2201/2003

The first question

18By its first question, the referring court asks, in essence, whether the principle of non-discrimination on grounds of nationality, enshrined in Article18 TFEU, precludes a situation in which the jurisdiction of the court of the Member State of residence, as provided for in the sixth indent of Article3(1)(a) of Regulation No2201/2003, is subject to the applicant being resident for a minimum period immediately before making his or her application which is six months shorter than that provided for in the fifth indent of Article3(1)(a) of that regulation on the ground that the person concerned is a national of that Member State.

19According to the settled case-law of the Court, if the principles of non-discrimination and equal treatment are to be observed, comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgments of 17December 2020, Centraal Israëlitisch Consistorie van België and Others, C‑336/19, EU:C:2020:1031, paragraph85, and of 25March 2021, Alvarez y Bejarano and Others v Commission, C‑517/19P and C‑518/19P, EU:C:2021:240, paragraphs52 and 64).

20The comparability of different situations must be assessed having regard to all the elements which characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see, inter alia, judgments of 6June 2019, P.M. and Others, C‑264/18, EU:C:2019:472, paragraph29 and the case-law cited, and of 19December 2019, HK v Commission, C‑460/18P, EU:C:2019:1119, paragraph67).

21Moreover, the Court has also held, as regards judicial review of whether the EU legislature has observed the principle of equal treatment, that that legislature has, in the exercise of the powers conferred on it, a broad discretion where it intervenes in a field involving political, economic and social choices and where it is called on to undertake complex assessments and evaluations. Thus, only if a measure adopted in this field is manifestly inappropriate in relation to the objectives which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected (see, inter alia, judgment of 6June 2019, P.M. and Others, C‑264/18, EU:C:2019:472, paragraph26).

22However, according to that case-law, even where it has such a discretion, the EU legislature is obliged to base its choice on objective criteria appropriate to the aim pursued by the legislation in question (judgment of 6June 2019, P.M. and Others, C‑264/18, EU:C:2019:472, paragraph27).

23It is in the light of the principles that have just been recalled that it is necessary to ascertain whether, having regard in particular to the objective pursued by the rules on jurisdiction established in Article3(1)(a) of Regulation No2201/2003, an applicant such as OE, who is habitually resident in the territory of a Member State other than that of his or her nationality and who initiates a procedure for the dissolution of matrimonial ties before the courts of that Member State, is in a situation which is not comparable to that of an applicant who is a national of that Member State, with the result that requiring the former to have resided in the territory of that same Member State for a longer period before being able to bring his or her application is not contrary to the principle of non-discrimination.

24According to recital1 of Regulation No2201/2003, that regulation is to contribute to the creation of an area of freedom, security and justice, in which the free movement of persons is ensured. Accordingly, with the objective of ensuring legal certainty, Chapters II and III of the regulation lay down rules on jurisdiction and on recognition and enforcement of judgments concerning the dissolution of matrimonial ties (judgment of 25November 2021, IB (Habitual residence of a spouse– Divorce), C‑289/20, EU:C:2021:955, paragraph31 and the case-law cited).

25In that context, Article3 of that regulation, in Chapter II thereof, lays down the general criteria for jurisdiction with respect to divorce, legal separation and marriage annulment. These criteria, which are objective, alternative and exclusive, meet the need for rules that address the specific requirements of conflicts relating to the dissolution of matrimonial ties (judgment of 25November 2021, IB (Habitual residence of a spouse– Divorce), C‑289/20, EU:C:2021:955, paragraph32 and the case-law cited).

26In that regard, while the first to fourth indents of Article3(1)(a) of Regulation No2201/2003 expressly refer to the habitual residence of the spouses and of the respondent as criteria, the fifth and sixth indents of Article3(1)(a) permit the application of the jurisdiction rules of the forum actoris (judgment of 25November 2021, IB (Habitual residence of a spouse– Divorce), C‑289/20, EU:C:2021:955, paragraph33 and the case-law cited).

27Subject to certain conditions, the latter provisions recognise the courts of the Member State of the territory in which the applicant is habitually resident as having jurisdiction to rule on the dissolution of matrimonial ties in question.

28Thus, the fifth indent of Article3(1)(a) of that regulation establishes such jurisdiction where the applicant has resided there for at least a year immediately before that application was made, while the sixth indent of Article3(1)(a) of that regulation refers to a reduced period of residence required of the applicant, namely six months immediately before the application was made, where the latter is a national of the Member State in question (judgment of 13October 2016, Mikołajczyk, C‑294/15, EU:C:2016:772, paragraph42).

29It is apparent from the Court’s case-law that the rules on jurisdiction laid down in Article3 of Regulation No2201/2003, including those laid down in the fifth and sixth indents of paragraph1(a) of that article, seek to ensure a balance between, on the one hand, the mobility of individuals within the European Union, in particular by protecting the rights of the spouse who, after the marriage has broken down, has left the Member State where the couple had their shared residence and, on the other hand, legal certainty, in particular that of the other spouse, by ensuring that there is a real link between the applicant and the Member State whose courts have jurisdiction to give a ruling on the dissolution of the matrimonial ties concerned (see, to that effect, judgments of 13October 2016, Mikołajczyk, C‑294/15, EU:C:2016:772, paragraphs33, 49 and 50, and of 25November 2021, IB (Habitual residence of a spouse– Divorce), C‑289/20, EU:C:2021:955, paragraphs35, 44 and 56).

30Taking into account the objective of ensuring that there is a real link with the Member State whose courts exercise such jurisdiction, an applicant who is a national of that Member State and who, because his or her marriage has broken down, leaves the shared habitual residence of the couple and decides to return to his or her country of origin, is not, in principle, in a situation comparable to that of an applicant who does not hold the nationality of that Member State and who moves there after his or her marriage has broken down.

31In the first situation, although the nationality of the spouse is not sufficient to determine whether the criteria under the sixth indent of Article3(1)(a) of Regulation No2201/2003 are met, it is, nevertheless, already possible to discern that that spouse has a link with that Member State, by reason of the very fact that he or she is a national of that Member State, and that he or she necessarily has institutional and legal ties with the latter and, as a general rule, cultural, linguistic, social, family or property ties. Therefore, such a link may in itself contribute to establishing the real link required between the applicant and the Member State whose courts exercise such jurisdiction.

32That assessment is borne out by the considerations set out in paragraph32 of the explanatory report drawn up by DrBorrás concerning the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, known as the ‘Brussels II Convention’ (OJ 1998 C221, p.1), which inspired the wording of Regulation No2201/2003. According to those considerations, the nationality criterion, which now appears in the sixth indent of Article3(1)(a) of Regulation No2201/2003, ‘demonstrates that there is an initial connection with that Member State’.

33The same is generally not true of a spouse who, after his or her marriage has broken down, decides to move to a Member State of which he or she is not a national. In fact, that spouse, before his or her marriage, has, in most cases, never had links with that Member State analogous to those which a national of that Member State would have. The closeness of the link between the applicant and the Member State whose courts exercise jurisdiction to rule on the dissolution of the matrimonial ties concerned may therefore reasonably be determined using other factors, such as, in the present case, the requirement that the applicant reside in the territory of that Member State for a sufficiently long period, of at least one year, immediately before the application is made.

34Furthermore, the difference in the minimum period of actual residence of the applicant in the territory of the Member State whose courts exercise such jurisdiction, immediately before the application is made, depending on whether or not the applicant is a national of that Member State, is based on an objective factor which is necessarily known to the applicant’s spouse, namely the nationality of his or her spouse.

35In that regard, once a spouse, because of the breakdown of his or her marriage, leaves the couple’s habitual residence and returns to the territory of the Member State of which he or she is a national in order to establish his or her new habitual residence there, the other spouse can expect that an application for dissolution of the matrimonial ties may well be brought before the courts of that Member State.

36Since respect for the legal certainty of that other spouse is, at least in part, ensured by the nationality of his or her spouse, which represents an institutional and legal link to the Member State whose courts exercise jurisdiction to rule on the dissolution of the matrimonial ties concerned, it is not manifestly inappropriate for such a link to have been taken into consideration by the EU legislature when it determined the period of actual residence required of the applicant in the territory of that Member State of which he or she is a national, in so far as that link distinguishes the situation of the latter from that of an applicant who does not have the nationality of the Member State concerned.

37It is true that the distinction made by the EU legislature in the fifth and sixth indents of Article3(1)(a) of Regulation No2201/2003 is based on a presumption that a national will, in principle, have closer links with his or her country of origin than a person who is not a national of the State concerned.

38However, having regard to the objective of ensuring that there is a real link between the applicant and the Member State whose courts exercise jurisdiction to give a ruling on the dissolution of the matrimonial ties concerned, the objective nature of the criterion based on the nationality of the applicant, as provided for in the sixth indent of Article3(1)(a) of Regulation No2201/2003, cannot be disputed without calling into question the discretion of the EU legislature which adopted that criterion.

39Furthermore, the Court has also accepted, with regard to a criterion based on the nationality of the person concerned, that although in borderline cases occasional problems must arise from the introduction of any general and abstract system of rules, there are no grounds for taking exception to the fact that the EU legislature has resorted to categorisation, provided that it is not in essence discriminatory having regard to the objective which it pursues (see, by analogy, judgments of 16October 1980, Hochstrass v Court of Justice, 147/79, EU:C:1980:238, paragraph14, and of 15April 2010, Gualtieri v Commission, C‑485/08P, EU:C:2010:188, paragraph81).

40In the present case, the EU legislature cannot be criticised for having, in part, introduced, as regards the application of the forum actoris rule on jurisdiction, a criterion relating to the nationality of the applicant, in order to make it easier to determine whether he or she has a real link with the Member State whose courts exercise jurisdiction to rule on the dissolution of the matrimonial ties concerned, and making the admissibility of the action for the dissolution of the matrimonial ties of the applicant who is a national of that Member State subject to completion of a prior period of residence which is shorter than that required of an applicant who is not a national of that Member State.

41It follows that, having regard to the objective of ensuring that there is a real link between the applicant and the Member State whose courts exercise jurisdiction to give a ruling on the dissolution of the matrimonial ties concerned, the distinction made by the EU legislature, on the basis of a criterion relating to the nationality of the applicant, in the fifth and sixth indents of Article3(1)(a) of Regulation No2201/2003, does not constitute a difference in treatment on grounds of nationality prohibited by Article18 TFEU.

42In the light of all the findings above, the answer to the first question is that the principle of non-discrimination on grounds of nationality, enshrined in Article18 TFEU, must be interpreted as not precluding a situation in which the jurisdiction of the courts of the Member State in the territory of which the habitual residence of the applicant is located, as provided for in the sixth indent of Article3(1)(a) of Regulation No2201/2003, is subject to the applicant being resident for a minimum period immediately before making his or her application which is six months shorter than that provided for in the fifth indent of Article3(1)(a) of that regulation on the ground that the person concerned is a national of that Member State.

The second question

43Given the answer to the first question, there is no need to examine the second question.