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Articolo n° 667538 del 20 Luglio 2022 delle ore 10:31

At the hearing of isch, the German and Hungarian Governments and the Commission presented oral argument

At the hearing of isch, the German and Hungarian Governments and the Commission presented oral argument

If the answer to [the first question] is in the affirmative: In applying Regulation [No ] [when examining] Article 10 thereof in cases of private divorce,

is account to be taken in the abstract of a comparison showing that, while the law pursuant to Article 8 grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to procedural and substantive conditions different from those applicable to access for the first spouse, or

does the applicability of that rule depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

If the answer to [the second part of the second question] is in the affirmative: Does the fact that the spouse discriminated against consents to the divorce – including by duly accepting compensation – itself constitute a ground for not applying that rule?’

In the present proceedings, written observations have been lodged by the German, Belgian, French, Hungarian and Portuguese Governments, and by the European Commission

Given the objections raised in this regard, it is necessary, before analysing the questions put to the Court, to examine whether the latter has jurisdiction to answer them in the present proceedings, contrary to the ruling given in this regard in relation to the previous request for a preliminary ruling made by the referring court in the course of the same dispute in the main proceedings.

Accordingly, the Court is required to ascertain whether there are sufficiently precise indications to enable that reference to EU law to be established, in the light of the information provided in that regard in the request for a preliminary ruling

I should say at the outset that, in my view, the Court has sufficient information to rule on the questions which have been submitted to it in the present proceedings, in accordance with its case-law to the effect that its own jurisdiction may be based on the fact that the provisions of EU law whose interpretation is sought are made applicable to the dispute in the main proceedings by national law.

First of all, it should be recalled that it follows from settled case-law that the presumption of relevance enjoyed by questions which a national court refers for a preliminary ruling, in the factual and legislative context which that court is responsible for defining, may be disapplied only in exceptional circumstances. ( 13 ) A request for a preliminary ruling can be rejected if, inter alia, it is obvious that EU law cannot be applied, either directly or indirectly, to the circumstances of the case. ( 14 )

In the present case, as the Court held in the order of , Sahyouni (C?), ( 15 ) the dispute in the main proceedings falls outside the scope of EU law, since neither Regulation No nor Regulation No , nor any other EU legal act, is applicable to such a dispute, the subject matter of which is an application for the recognition in a Member State of a divorce decision pronounced by a religious authority in a third State.

As regards, more specifically, Regulation No , ( 16 ) the provisions of which were explicitly referred to in the request for a preliminary ruling in that case, the Court pointed out that that regulation lays down only the rules governing conflicts of applicable laws in participating Member States ( 17 ) in matters of divorce and legal separation and does not govern the recognition of a divorce decision which has already been pronounced. ( 18 )

Where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly. ( 22 )


» F. Lammardo

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