Case number and/or case name
C-68/07 Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo (Third Chamber) [2007] ECR I-10403
Referring court and Member State
Sweden, Third Instance, Högsta domstolen
Summary
The wife was a Swedish national and the husband was Cuban. During their marriage, the couple resided in France. After the separation, the wife remained resident in France, while the husband returned to Cuba. The wife petitioned for divorce in Sweden under Swedish national rules of jurisdiction, relying on her nationality. Her divorce application was dismissed by the Swedish court which held that under Article 3 of the Brussels IIa Regulation only French courts had jurisdiction (on the basis that the spouses were last habitually resident there and the wife continued to reside in that jurisdiction), and that Article 7 precluded the applicability of Swedish national rules on jurisdiction. The wife appealed. The Swedish Supreme Court stayed the proceedings and referred the following question to the CJEU: “Where the respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State, may the case be heard by a court in a Member State which does not have jurisdiction under Article 3 [of Regulation No 2201/2003], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3?” The CJEU held that Article 6 did not prohibit a respondent who was neither habitually resident in nor a national of a Member State from being sued in a court of a Member State under national rules of jurisdiction in accordance with Article 7(1). This was, however, possible only where no court of a Member State had jurisdiction under Articles 3-5 of the Regulation. Consequently, it could not be said that Article 6 had laid down a general rule that in all cases involving a respondent not habitually resident in nor a national of a Member State jurisdiction was to be based on domestic law – including cases where another Member State had jurisdiction under Article 3. To assume such a general rule would be tantamount to ignoring the clear wording of Articles 7(1) and 17, the application of which does not depend on the position of the respondent but exclusively on whether a court of a Member State has jurisdiction under Articles 3-5 of the Regulation. To sum up, Articles 6 and 7 of the Brussels IIa Regulation are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Articles 3-5 of that Regulation. This decision helpfully clarifies the approach that is to be taken by Member States’ courts in proceedings involving respondents who are not habitually resident in or nationals of a Member State. In cases involving such respondents, national rules of jurisdiction can be relied on in accordance with Article 7 only where no court of a Member State has jurisdiction under Article 3. This was such a straightforward case that the Third Chamber was able to reach its decision without asking the Advocate General to give an Opinion.