(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

8On 9November 2011, OE, an Italian national, and VY, a German national, were married in Dublin (Ireland).

9According to the information provided by the referring court, OE left the habitual residence the couple shared in Ireland in May 2018 and has lived in Austria since August 2019.

10On 28February 2020, that is, after residing in Austria for more than six months, OE applied to the Bezirksgericht Döbling (District Court, Döbling, Austria) for the dissolution of his marriage with VY.

11OE submits that a national of a Member State other than the State of the forum is entitled to invoke the jurisdiction of the courts of that latter State under the sixth indent of Article3(1)(a) of Regulation No2201/2003, on the basis of observance of the principle of non-discrimination on grounds of nationality, after having resided in the territory of that latter State for only six months immediately before making the application for divorce, which is tantamount to disregarding the application of the fifth indent of that provision, which requires a period of residence of at least a year immediately before the application for divorce is made.

12By order of 20April 2020, the Bezirksgericht Döbling (District Court, Döbling) dismissed OE’s application, taking the view that it lacked jurisdiction to hear it. According to that court, the distinction made on the basis of nationality in the fifth and sixth indents of Article3(1)(a) of Regulation No2201/2003 is intended to prevent the applicant from forum shopping.

13By order of 29June 2020, the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria), hearing the case on appeal, upheld the order of the Bezirksgericht Döbling (District Court, Döbling).

14OE brought an appeal on a point of law against that order before the referring court, the Oberster Gerichtshof (Supreme Court, Austria).

15The referring court observes that the distinction, established in the fifth and sixth indents of Article3(1)(a) of Regulation No2201/2003, relating to the actual length of residence of the person concerned, is based solely on the criterion of nationality. The referring court notes that there are persons who are born and grow up in a Member State without being a national of that State and concludes therefrom that that criterion does not differentiate sufficiently according to the level of integration of the person concerned and the closeness of his or her relationship with the Member State concerned. Consequently, it has doubts as to whether the difference in treatment arising from those provisions of Regulation No2201/2003 is compatible with the principle of non-discrimination on grounds of nationality enshrined in Article18 TFEU.

16Furthermore, in the event that that difference in treatment is contrary to the principle of non-discrimination, the referring court raises the question of what appropriate legal conclusions should be drawn in a case such as the one in the main proceedings.

17In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)Does the sixth indent of Article3[(1)](a) of [Regulation No2201/2003] infringe the prohibition of discrimination in Article18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article3[(1)](a) of [Regulation No2201/2003]?

(2)If the answer to Question1 is in the affirmative:

Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article3[(1)](a) of [Regulation No2201/2003], a period of residence of 12months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6months’ residence is the precondition for all applicants?’