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Provisional text
delivered on 28 November 2024 (1)
(Request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court, Bulgaria))
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) 2019/1111 – Scope – Judicial authorisation for the sale of immovable property belonging to minors – Bilateral agreement between the Republic of Bulgaria and the Russian Federation – Jurisdiction )
1.This request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court, Bulgaria) was made in the course of non-contentious proceedings brought by two minors of Russian nationality, acting with the consent of their mother, who are resident in Germany, with a view to obtaining authorisation to sell the shares which they each hold in three immovable properties located in Bulgaria.
2.The referring court asks the Court of Justice whether the referring court’s international jurisdiction covers the place where the immovable property is situated, which is based in particular on the Treaty between the People’s Republic of Bulgaria and the Union of Soviet Socialist Republics on Legal Assistance in Civil, Family and Criminal Matters, (2) concluded before the accession of the Republic of Bulgaria to the European Union. That court seeks to ascertain how the application of that treaty fits with EU law and, in particular, Regulation (EU) 2019/1111, (3) if it is found that the main proceedings come within the field of parental responsibility.
3.The Court has previously defined the scope of the concept of parental responsibility in property matters concerning minors. However, it has not had the opportunity to rule on the effects of bilateral agreements in the same field concluded by Member States with third countries prior to their accession to the European Union, whereas the relationship between the Brussels IIb Regulation and such agreements is not the subject of specific provisions in that regulation.
4.In view of both the number of Member States that are still bound by agreements similar in content to the Russo-Bulgarian Treaty and the number of situations in which property in Bulgaria belonging to Russian minors that are likely to arise again, the question as to whether those agreements derogate from the Brussels IIb Regulation and, if so, under what conditions, is of considerable importance.
5.The present case thus gives the Court the opportunity to restate that, in relations between the Member States and third States, the principles set out in Article 351 TFEU must be applied. In that context, whether a rule of jurisdiction derived from a bilateral agreement is incompatible with a rule of that kind laid down in the Brussels IIb Regulation must therefore be assessed according to criteria that have yet to be defined. I shall demonstrate how those criteria may flow from an interpretation by analogy with the interpretation adopted by the Court in its case-law relating to particular regulations on civil cooperation, according to which the limit, beyond which they cease to apply, is where the principles underlying such cooperation are no longer observed.
6.The first and second paragraphs of Article 351 TFEU provide as follows:
‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.
To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.’
7.Recital 91 of the Brussels IIb Regulation states:
‘It is recalled that for agreements with one or more third States concluded by a Member State before the date of its accession to the Union, Article 351 TFEU applies’.
9. Article 7 of that regulation, headed ‘General jurisdiction’, provides, in paragraph 1:
‘The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised’.
10. Chapter VIII of the Brussels IIb Regulation, which contains Articles 94 to 99, governs the relationship between that regulation and other instruments.
11. Article 94(2) of that regulation deals with the effects of the Convention of 6 February 1931 comprising international private law provisions on marriage, adoption and guardianship, together with the Final Protocol thereto, concluded between particular Member States (the Kingdom of Denmark, (4) the Republic of Finland and the Kingdom of Sweden) and third States (the Republic of Iceland and the Kingdom of Norway).
12. Under Article 98(2) of the Brussels IIb Regulation, headed ‘Scope of effect’:
‘The conventions referred to in Articles 95 to 97 of this Regulation, in particular the 1980 [ (5)] and 1996 [ (6)] Hague Conventions, shall continue to have effect between the Member States which are Party thereto, in compliance with Articles 95 to 97 of this Regulation.’
13. Article 99 of that regulation governs its relationship with bilateral treaties concluded between particular EU Member States (the Kingdom of Spain, the Italian Republic, the Republic of Malta and the Portuguese Republic) and the Holy See.
14. Article 25 of the Russo-Bulgarian Treaty provides:
‘1. Legal relationships between parents and children shall be determined by the law of the contracting party in whose territory they have their joint domicile.
…
6. The authorities of the contracting party of which the child is a national or of the territory in which the child is domiciled or resident shall have jurisdiction to take decisions concerning the legal relationships referred to in paragraphs 1, 2, 3, 4 and 5.’
15. Article 30 of that treaty, headed ‘Forms of legal transactions’, provides in paragraph 2 thereof:
‘The form of a legal transaction concerning immovable property shall be determined by the law of the contracting party in whose territory the immovable property is situated’.
16. Article 18 of the Zakon za zadalzheniata i dogovorite (Law on obligations and contracts) (7) states:
‘Contracts on the transfer of ownership or the establishment of other rights in rem in immovable property shall require notarial attestation’.
17. Article 586(1) of the Grazhdanski protsesualen kodeks (Code of Civil Procedure) (8) states:
‘When drawing up a notarial instrument relating to the transfer of a right of ownership or the establishment, transfer, modification or termination of another right in rem to immovable property, the notary shall verify whether the person transferring the right is the owner of the property and whether the specific requirements for the legal transaction are met’.
18. Under Article 130(3) of the Semeen kodeks (Family Code) (9):
‘Acts disposing of immovable property, movable property by way of a formal legal transaction, deposits and securities belonging to the child may be carried out with the approval of the Rayonen sad [District Court] at the child’s current place of residence if such disposal is not contrary to the child’s interest’.
19.Two minors (10) of Russian nationality, whose habitual place of residence is in Germany, wish, with the consent of their mother, to sell the co-ownership shares of the property rights that they, like her, hold in three immovable properties located in Bulgaria, with the sale price to be transferred to the children’s two German bank accounts.
20.The Sofiyski rayonen sad (Sofia District Court), which must, under a non-contentious procedure, authorise or refrain from authorising that transfer of property so that it may be certified by a notarial act, asks whether it has international jurisdiction.
21.That court notes that, in similar circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) based the jurisdiction of the Bulgarian courts, which have a connection to the place where the property was situated, on provisions laying down the law applicable to the acquisition of rights in rem, namely Article 65(1) of the Kodeks na mezhdunarodnoto chastno pravo (Code of Private International Law) (11) and Article 30(2) of the Russo-Bulgarian Treaty. It adds that, to the same effect and specifically in the case in the main proceedings, the Sofiyski gradski sad (Sofia City Court, Bulgaria) applied that criterion of jurisdiction and held that the Brussels IIb Regulation was not applicable, referring to Article 4(1)(c) of Regulation (EC) No 593/2008. (12) However, the referring court considers that, in so far as that provision determines the applicable law and not international jurisdiction to hear the dispute, that decision is based on Article 24(1) of Regulation (EU) No 1215/2012. (13)
22.Consequently, the referring court is uncertain as to the scope of that provision and that of the Brussels IIb Regulation in matters of parental responsibility and the effects of the Russo-Bulgarian Treaty, which is not referred to in the Brussels IIb Regulation as derogating from that regulation.
23.In those circumstances, the Sofiyski rayonen sad (Sofia District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the scope of Article 1[(2)](e) of [the Brussels IIb Regulation] cover non-contentious proceedings concerning the granting of permission by a court for the disposal, [for example] a sale, of immovable property or co-ownership shares in immovable property belonging to a child?
(2) Which regulation determines the international jurisdiction of a court of a Member State of the European Union in non-contentious proceedings concerning the granting of permission by a court for the disposal, [for example] a sale, of immovable property or co-ownership shares in immovable property belonging to a child: (i) Article 7(1) of [the Brussels IIb Regulation] – the court for the place where the child is habitually resident – or (ii) Article 4(1)(c) of [the Rome I Regulation] or Article 24(1) of Regulation [No 1215/2012] – the court for the place where the immovable property is situated?
(3) Are the rules of [the Brussels IIb Regulation] on international jurisdiction in matters of parental responsibility derogated from by a bilateral international agreement between a Member State ([the Republic of] Bulgaria) and a third country (the Soviet Union or the Russian Federation) which was concluded before the Member State’s accession to the European Union, if that international agreement is not listed in Chapter VIII [of that regulation]?’
24.The applicants in the main proceedings, the Spanish and Hungarian Governments and the European Commission submitted written observations.
25.Following the submission of the Commission’s written observations, the referring court supplemented its request for a preliminary ruling by stating that, if the situation at issue in the main proceedings were to fall within the scope of the Brussels IIb Regulation, Article 16 thereof could not be applicable on the ground that the principal procedure for which authorisation to dispose of the property of the minors concerned is required is to be conducted by a notary.
26.At the hearing held on 12 September 2024, the applicants in the main proceedings, the Spanish Government and the Commission presented oral argument and replied to the questions put by the Court that were to be answered orally.
27.In the proceedings before it, the Bulgarian referring court seeks to ascertain, in essence, whether, in matters of international jurisdiction, there is a conflict of laws between EU law and the Russo-Bulgarian Treaty concluded by the Republic of Bulgaria before its accession to the European Union. If there is, that court is uncertain as to the relationship how those rules are to interact.
28.I therefore propose that the Court should examine the first and second questions referred for a preliminary ruling together, in so far as they seek to ascertain which regulation (No 1215/2012 or Brussels IIb) is applicable in the present case for the purposes of designating the court with international jurisdiction, before dealing with the third question, which concerns the relationship between the latter regulation and bilateral instruments other than those to which it refers.
29.At the outset, since the Court is hearing non-contentious proceedings, I shall explain why any doubt as to the admissibility of the request for a preliminary ruling should be removed.
30.The referring court has before it an application for authorisation to sell assets belonging to minors in the context of non-contentious proceedings.
31.It is true that it is not hearing a dispute between the parties, (14) either at first instance, having regard to the subject matter of the application, or following an appeal against a non-contentious decision. (15)
32.However, as was confirmed at the hearing, that court exercises jurisdictional functions in the sense that it is not seised solely for the purpose of registering agreements between the parties (16) and that it must make an assessment in a decision which may be the subject of an appeal. (17)
33.First, that court is deciding on an application for authorisation of the sale of immovable property by minors, pursuant to Article 130(3) of the Family Code, in accordance with their best interests, (18) with a view to drawing up a notarial deed of sale, as provided for in Article 18 of the Law on obligations and contracts.
34.Moreover, it must be taken into consideration that a non-contentious decision falls within the scope of Chapter IV of the Brussels IIb Regulation where it has not been expressly excluded from the definition of the term ‘decision’ in Article 2(1) of that regulation, which includes decisions which have not acquired the force of res judicata. (19)
35.Consequently, as Hélène Gaudemet-Tallon and Marie-Élodie Ancel explain on the subject of the equivalent definition of the term ‘decision’ in Article 2(a) of Regulation No 1215/2012, a distinction must be drawn between two types of non-contentious judicial measures, namely ‘purely receptive measures’ and ‘non-contentious decisions’ in which the court ‘without having to settle “a dispute between the parties” nevertheless expresses its will’. (20)
36.Secondly, I note that, in previous succession cases concerning minors, the Court has provided answers in response to requests for preliminary rulings on international jurisdiction in the course of non-contentious proceedings similar to those in the present case. (21)
37.Accordingly, I take the view that the request of the referring court, ruling in non-contentious proceedings, which is uncertain as to its international jurisdiction, is admissible under the same conditions as those already accepted by the Court.
38.In order to respond to that request for a preliminary ruling, which seeks to ascertain how the Russo-Bulgarian Treaty relates to EU law, it is therefore appropriate to begin by removing any doubt as to the legislation on jurisdiction which would be applicable. (22)
39.In response to the referring court’s questions, which are based solely on the reference to the judgment of 6 October 2015 in Matoušková, (23) I propose that the Court apply, by analogy, the solution of principle which it adopted in the judgment in Schneider.
40.In the case giving rise to that judgment, the Bulgarian referring court had before it an application for authorisation to sell immovable property, an interest in which belonged to a person under guardianship. (24) The Court held that the need for such judicial authorisation is a safeguard required by law for the protection of a person who has been placed under guardianship, as such a person is no longer able to dispose of his or her immovable property him- or herself, and that that authorisation is not to be granted unless the disposal of the immovable property concerned is being undertaken in the interests of the person under protection. (25)
41.The Court inferred from that that the application for authorisation is directly linked to the legal capacity of the natural person concerned for the purposes of Article 1(2)(a) of Regulation (EC) No 44/2001, (26) which excludes that matter from its material scope. The Court emphasised the distinction that must be drawn between such proceedings and proceedings concerning ‘“rights in rem in immovable property” for the purposes of Article 22(1) of Regulation No 44/2001’, in that the latter seek in particular to determine the extent, content, ownership or possession of immovable property. (27)
42.The same provisions appear in Article 1(2)(a) and Article 24(1) of Regulation No 1215/2012.
43.Building on the judgment in Schneider, the Court held that judicial authorisation sought by the legal representatives of a minor in the context of succession proceedings constitutes a protective measure for the child relating to the administration, conservation or disposal of the child’s property in the exercise of parental responsibility within the meaning of Article 1(1)(b) and (2)(e) of Regulation (EC) No 2201/2003. (28) The same provisions appear in the Brussels IIb Regulation, which repealed that regulation.
44.In the present case, that basis is applicable in the main proceedings on the grounds that the habitual residence of the minor applicants is in Germany and that the question of jurisdiction has cross-border implications in that it involves a German court and a Bulgarian court.
45.Accordingly, I propose that the Court’s answer to the referring court, which seeks a basis for linking its international jurisdiction to the place where the immovable property to be sold is located, should be that Article 24(1) of Regulation No 1215/2012 cannot be applied.
46.Since the proceedings before that court fall within the scope of the Brussels IIb Regulation and that court does not have jurisdiction by reason of the place of residence of the minors, the applicants in the main proceedings, which is the criterion laid down in Article 7(1) of that regulation, it falls to that court to satisfy itself that its jurisdiction cannot result from the application of other provisions of that regulation. (29) Such a verification will serve to confirm whether or not there is a conflict of laws resulting from the Russo-Bulgarian Treaty, as interpreted by the Varhoven kasatsionen sad (Supreme Court of Cassation). (30)
47.To that effect, the Commission takes the view that the jurisdiction of the referring court could be based on Article 16(1) of the Brussels IIb Regulation, considering that that court is ruling on an incidental question. (31) However, the referring court has informed the Court that that is not the case. (32) I note that the only proceedings which have been brought are those before that court. (33) Since none of the conditions laid down by the EU legislature have been met, (34) I therefore share the reservations as to the applicability of Article 16 expressed by the Spanish Government at the hearing.
48.However, it is necessary, in my view, to examine whether the application of other provisions of the Brussels IIb Regulation allows any inconsistency with the Russo-Bulgarian Treaty, from which the international jurisdiction of the referring court is derived, to be avoided.
49.In that regard, I note that both Article 1(2) of the Russo-Bulgarian Treaty and Article 10 of the Brussels IIb Regulation provide that the jurisdiction of a court may be based on the choice of the parties by which it was seised. (35)
50.It should be pointed out that, in the decision of the Varhoven kasatsionen sad (Supreme Court of Cassation), cited by the referring court and included in the file before the Court, reference is made, as a basis for the jurisdiction of the Bulgarian court concerned, to the abovementioned Article 1(2), according to which nationals of one of the contracting States are to have the right to apply freely and without hindrance to the courts of the other contracting State which have jurisdiction in civil, family and criminal matters. They may appear before them and lodge applications and appeals under the same conditions as nationals of that contracting State. At the hearing, it was confirmed that that criterion of jurisdiction is applied by several Bulgarian courts.
51.Consequently, it is on the assumption that the referring court finds that there is a lack of consistency between the Russo-Bulgarian Treaty – which, according to the case-law of the Varhoven kasatsionen sad (Supreme Court of Cassation), forms the basis of its jurisdiction – and the Brussels IIb Regulation, that the Court is called upon to clarify whether and under what conditions the rights and obligations arising from that treaty are affected by that regulation.
52.