1. Soha Sahyouni Raja Mamisch
Collado Neila Jorge
Kovačev Andrea
April 16, 2018
Case c-281/15
Soha Sahyouni
Raja Mamisch

2. HISTORY OF THE CASE
1999: Mr Mamisch and Ms Sahyuoini married within the jurisdiction of the Islamic Court of Homs (Syria)
: They lived in Germany
: Returned to Syria and stayed here
From 2011: Moved from Syria because of the Civil War and lived alternately in Kuwait, Lebanon and few times in Syria

3. HISTORY OF THE CASE (II)
May 2013: Mr Mamisch declared his intention to dissolve his marriage before the religious sharia court in Lakatia (Syria), which declared the couple divorced.
Autumn 2013: Mr Mamisch applied to have the divorce pronounced in Syria recognised; the president of the Oberlandesgericht München granted the application -> the statutory conditions for recognition of this divorce were satisfactoryFebruary
2014: Ms Sahyouni applied to have that decision set asied -> conditions of recognition of the divorce were not satisfiedApril
2014: It's rejected Ms Sahyouni's application by virtue of Regulation No 1259/2010 (Article 8 c). Their effective nationality was Syrian

4. FIRST QUESTION
Does the scope of [Regulation No 1259/2010], as defined in Article 1 of that regulation, also include “private divorce”, in this instance one pronounced before a religious court in Syria on the basis of sharia?

5. SECOND AND THIRD QUESTIONS
If the answer to Question 1 is in the affirmative:
(a) in the case of an examination as to whether a divorce is eligible for recognition under national law, must Article 10 of [Regulation No 1259/2010] be applied?
(b) If the answer to Question 2(a) is in the affirmative:– is account to be taken in the abstract of a comparison showing that, while the law of the forum grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to different procedural and substantive conditions than access for the first spouse,
or,– does the validity 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?

6. LAST QUESTION
If the answer to the second indent of Question 2(b) 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?’

7. Reference for a preliminary ruling in Case C‑281/15Recognition of a private divorce pronounced by a religious court in a third country Manifest lack of jurisdiction of the Court (12 May 2016)

8. Does The Court of Justice of the European Union has jurisdiction to answer the questions referred by the Oberlandesgericht München (Higher Regional Court, Munich) by decision of 2 June 2015?

9. COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation
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

10. Regulation No 1259/2010 ( Articles 1 and 8) : Regulation lays down only the rules governing conflicts of applicable laws in matters of divorce and legal separation and does not govern the recognition, in a Member State, of a divorce decision which has already been pronounced.
On the contrary, it is Regulation No 2201/2003 which lays down the rules governing recognition and enforcement of matrimonial decisions. Nevertheless, it is not applicable to such decisions pronounced in a third country.
In accordance with Article 2, point 4, and Article 21(1) thereof, that regulation is restricted to recognition of decisions delivered by a court of a Member State.
Given that Regulation No 2201/2003 applies only between the Member States, the recognition of a divorce decision delivered in a third country does not fall within the scope of EU law

11. Neither the provisions of Regulation No 1259/2010, referred to by the referring court, nor those of Regulation No 2201/2003, nor any other legal act of the European Union applies to the dispute in the main proceedings.

12. The question: does the Court have jurisdiction to answer the questions referred despite the fact that the dispute in the main proceedings is outside the scope of EU law?

13. C‑297/88 and C‑197/89
The Court has held that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts of the cases being considered by the national courts were outside the scope of EU law but where those provisions of EU law had been rendered applicable by domestic law due to a reference made by that law to the content of those provisionsIn 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 uniformlyThe Court has also pointed out that an interpretation by it of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way, in order to ensure that internal situations and situations governed by EU law are treated in the same wayAccordingly, the Court is called upon to ascertain whether there are indications sufficiently precise to enable that reference to EU law to be established

14. The Court has no jurisdiction to answer the questions referred by the Higher Regional Court, Munich
The order for reference does not contain any element capable of establishing the jurisdiction of the Court on the basis of the case-law set out in paragraphs 25 to 27 of this order, since the referring court suggests that Regulation No 1259/2010 is applicable to the facts in the main proceedings and merely asserts that ‘the President of the Oberlandesgericht München (Higher Regional Court, Munich) held that the divorce’s eligibility for recognition was governed by Regulation No 1259/2010, which also applied to private divorces
No other indication is provided by the referring court to establish that Regulation No 1259/2010 or any other provision of EU law applies to the facts of the main proceedings

15. The Court has no jurisdiction to answer the questions referred by the Higher Regional Court, Munich
In those circumstances, it must be held, on the basis of Article 53(2) of the Rules of Procedure, that it is clear that the Court has no jurisdiction to answer the questions referred by the Oberlandesgericht München (Higher Regional Court, Munich)

16. Case C‑372/16

17. Legal context UE LAWRegulation No 1259/2010Regulation No 2201/2003
German Law
Art. 107 FamFG Recognition of foreign decisions in matrimonial matters108 Recognition of other foreign decisions Art. 17 EFBGB

18. About the Case C-372/16
Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1259/2010 — Enhanced cooperation in the area of the law applicable to divorce and legal separation — Recognition of a private divorce obtained before a religious court in a third country — Scope of that regulation

19. The national court has come to the Court again in order to refer for a preliminary ruling several questions concerning Regulation No 1259/ Before they are examined, it will be necessary to establish that the Court actually has jurisdiction to answer those questions — notwithstanding that the recognition of a divorce pronounced in a third State, such as that at issue in the main proceedings, does not fall within the scope of that regulation — given the fact, apparent from the order for reference, that that act of EU law is applicable to such situations by virtue of the relevant rules of German law.

20. FIRST QUESTION
The first question raised asks the Court to determine whether the provisions of Regulation No 1259/2010 cover divorces classified as ‘private’, in so far as they are based not on a decision creating or altering rights which is issued by a court or other public authority, but on a unilateral or mutual declaration of intent by the spouses, in some cases with the participation, in a purely declaratory capacity, of a foreign authority.

21. CONCLUSION
In the light of the definition of the concept of ‘divorce’ in Regulation No 2201/2003, it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.Article 1 of Regulation No 1259/2010 must be interpreted as meaning that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court, such as that at issue in the main proceedings, does not come within the substantive scope of that regulation.

22. Introductory Law to the Civil Code
ScopeUnless1.  immediately applicable rules of the European Union in their respective pertaining version, particularlya)  the Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II),b)  the Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I),c)  article 15 of the Regulation 4/2009 of the Council of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, andd)  the Regulation (EU) No. 1259/2010 of the Council of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation,e)  the Regulation (EU) No 650/2012 of the European Parliament and of the Coucil 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, or2.  rules in international conventions, insofar as they have become directly applicable in national law,are relevant, the applicable law is to be determined, where the facts of a case have a connection with a foreign country, by the provisions of this chapter (private international law)

23. Introductory Law to the Civil Code
Paragraph 17(1) of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to the Civil Code; ‘the EGBGB’), in the version applicable prior to the entry into force, on 29 January 2013, of the Gesetz zur Anpassung der Vorschriften des Internationalen Privatrechts an die Verordnung (EU) Nr. 1259/2010 und zur Änderung anderer Vorschriften des Internationalen Privatrechts (Law on the adaptation of the rules of private international law to Regulation (EU) No 1259/2010 and on the amendment of other rules of private international law) of 23 January (BGBl I, p. 101), provided:‘(1)      A divorce shall be subject to the law applicable to the general effects of marriage at the time when the petition for divorce is filed. Where the dissolution of the marriage is not possible under that law, the divorce shall be governed by German law in the case where the petitioner is German at that time or was German at the time of the marriage.(2)      Only a court may dissolve a marriage in Germany.