The background to the complaint

1. The complainant, an Irish citizen, worked and lived in X EU country from Y to Z. A X EU country court granted him a divorce in Z, just before he returned to Ireland. The X EU country court also ruled on the amount of maintenance payments he had to pay his ex-wife and children.

2. In 2000, the complainant's ex-wife, who, in the meantime, moved to Ireland, filed for a second divorce and a second maintenance judgment in Ireland.

3. Following a ruling from a High Court, the Irish Supreme Court decided in 2008 that this second divorce could proceed. Moreover, the latter refused to recognise the validity in Ireland of the X EU country divorce of Z. The Supreme Court's above decision was based on the traditional Common law doctrine of "domicile", according to which the complainant had maintained his "domicile" in Ireland although he was habitually resident in the X EU country at the time he filed for divorce in that country. The decision was thus based on the Irish jurisdiction rules on divorce prevailing at the time the X EU country divorce was granted[1], that is, before the Regulation on jurisdiction and recognition of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the so-called 'Brussels II Regulation'[2]), entered into force in March 2001[3].

4. As regards the second maintenance judgment, the Irish Supreme Court also accepted the proceedings instituted by the complainant's ex-wife and refused to recognise the X EU country maintenance judgment of Z. It used, as a basis for this decision, Article 27.4 of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters[4] of 1968 ('the 1968 Convention'). This Article reads as follows: "A judgment shall not be recognised … if the court of the State of origin, in judgment to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of matrimonial relationship, will or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State." The Irish courts held that the X EU country court did not take into consideration the relevant Irish conflict of law rule on domicile. Therefore, its decision on the preliminary question concerning the parties' personal status (which had to be answered before the maintenance judgment could be issued) was contrary to Irish private international law. The Irish Court also found that the Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the so-called 'Brussels I Regulation')[5], which replaced the 1968 Convention as from March 2002, was not applicable.

5. Despite the complainant's requests, the Irish Supreme Court did not find it useful to ask the Court of Justice (ECJ) for a preliminary ruling on the basis of the Protocol on the interpretation of the Brussels Convention by the Court of Justice ('the Protocol')[6]. Nor did the Supreme Court ask for an interpretation of the Brussels I and II Regulations, which, in the complainant's view, were relevant in his case.

6. In 2008, the complainant approached the Commission and complained that Ireland had infringed European law because of the above decisions of the Irish courts. The complainant alleged that Ireland had: (i) breached the Treaty and the principles of the Brussels I and II Regulations; (ii) discriminated on the basis of the complainant's Irish nationality; (iii) imposed a "penalty" on him for having exercised his right to free movement; and (iv) failed to protect his rights resulting from his EU citizenship. He added that the refusal of the Irish Supreme Court to refer the issue to the ECJ was unlawful.

7. In 2008, his complaint was registered as an infringement complaint and assigned to the Commission's Directorate-General for Justice, Freedom and Security[7] (DG Justice).

8. On 30 November 2008, the complainant inquired about his complaint by letter addressed to the Commission's Secretary-General. On 10 December 2008 and 1 January 2009, he addressed e-mails to the official handling his case.

9. On 7 January 2009, the Secretary-General replied to the complainant's letter dated 30 November 2008. She stated that she had checked the status of his complaint with DG Justice and it emerged that it was still examining the facts of the complaint and would inform the complainant about its progress.

10. On 29 January 2009, DG Justice replied to his complaint in substance, informing the complainant that the Commission had found no infringement of EU law by Ireland because no EU law was involved: "No Community rules are applicable to the recognition of the X EU country decision of divorce of Z or the X EU country Judgment on maintenance. Irish law therefore remains applicable." There was thus no legal basis on which the Commission could intervene. None of the Brussels Regulations were applicable to the recognition of the X EU country judgment dated Z in Ireland. These Regulations provide that they shall apply only to legal proceedings instituted after their entrance into force. The Commission noted that the problem stems from the two different jurisdictions at that time: the X EU country court was competent according to its private international law because of the connecting factor "residence", while the Irish court was competent according to its private international law because of the connecting factor "domicile". The Commission added that this situation cannot occur nowadays because the Brussels II Regulation bis (in force since 1995) prevents such competing jurisdictions and their consequences on the basis of the rule lis pendens. However this legislation is not retroactive. The Commission concluded that "the existence of a final ruling of a court of appeal leaves no scope for us to seek a different solution by any other means."

11. On 16 February 2009, the complainant challenged the above decision. He considered, in summary, that the Commission had only dealt with those aspects of his complaint relating to the non-recognition of the X EU country divorce and maintenance judgment and had ignored the remaining aspects such as: (i) the alleged infringements of his citizenship rights; (ii) the fact that the justification used by the Irish Supreme Court in applying Article 27(4) of the Brussels Convention was incompatible with the principle of legal certainty; (iii) the alleged non-respect of the principles of both Brussels Regulations; and (iv) the Irish Supreme Court's refusal to refer the case to the ECJ. He emphasised that the Commission did not take into account his submission that, even if the Irish court did not recognise the X EU country divorce, it should not have accepted its jurisdiction on the new maintenance judgment because the X EU country court had already been seized on the same matter and the ancillary judgments were covered by the 1968 Convention and the Brussels I Regulation. He referred to the lis pendens rule provided for in Article 21 of the 1968 Convention and in Article 27.2 of the Brussels I Regulation using identical wording. He considered, in summary, that the Irish Supreme Court should have applied the principles of the Brussels I Regulation because it was in force at the time of this court's decision.

12. The Commission replied on 30 April 2009, maintaining its view that (i) the Brussels I Regulation did not apply to the complainant's case and (ii) the Irish Supreme Court correctly applied Article 27(4) of the Brussels Convention of 1968 by not recognising the X EU country judgment in question. The Commission reiterated that the 1968 Convention is not part of Community law. As a result, the Commission felt unable to pursue infringements under that Convention. The Commission explained that the lis pendens rule of the Brussels I Regulation cannot apply in the complainant's case because the X EU country divorce was given in Z, that is, a long time, before the Brussels I Regulation entered into force and was thus not pending. The complainant and his ex-wife were already resident in Ireland and therefore subject to the jurisdiction of the Irish courts for the maintenance case. The Commission further explained, referring by analogy to the Piatkowski judgment[8] on social security benefits, that EU law cannot guarantee that a change of residence is completely neutral in terms of personal status. Even if the application of national law resulting from the change of residence is less favourable, national law in a particular Member State is still compatible with EU law if it does not place the citizen who moved to it his/her residence at a disadvantage compared with citizens who pursue their activities in that Member State. Finally, the Commission did not agree with the complainant's interpretation that Irish law on the recognition of divorces is discriminatory on the grounds of nationality if granted after or before 1986. It stated that the purpose of Article 12 EC[9] on the prohibition of discrimination on the grounds of nationality is not to prevent changes of national rules over time.

13. On 25 May 2009, the complainant wrote a further letter to the Commission expressing his dissatisfaction with its above reply. He reiterated that, once the Community has legislated, Member States must not do anything that will impede the objective of EU rules (he referred to the Vienna Convention on the Law of Treaties[10].) Even if the X EU country divorce and maintenance judgments were not to be covered by the Brussels Regulations, Ireland should have respected the principles contained in these Regulations and not have created "a new divorce", given that a divorce had already been granted between the same parties. He also explained that his allegation of discrimination on the basis of nationality related to the Irish court's assessment of his domicile (that he was always domiciled in Ireland even though he was in fact domiciled in the EU country for seven years). The complainant also referred to the judgment in De Wolf v Cox[11], in which the ECJ stated that, when a court first seized has already given a judgment, the acceptance of an application concerning the same subject matter and between the same parties would be incompatible with Article 26 of the 1968 Convention[12]. In this context, he did not understand the true meaning of the Commission's statement that, given that the complainant and his ex-wife had both moved to Ireland, they were both subject to the Irish courts' jurisdiction on maintenance. Finally, the complainant noted that his allegation on the infringement of citizenship rights was not answered at all by the Commission and that the 1968 Convention is listed as "Community legislation in force" on the EU/Europa website, under the heading "Directory of European legislation in force".

14. On 5 June 2009, officials from DG Justice and DG Citizenship met the complainant in order to discuss the arguments debated earlier in the exchanged letters. The complainant referred to the judgment in De Wolf v Cox. The Commission did not agree with the complainant's interpretation that the lis pendens principle would prohibit the Irish courts from taking the jurisdiction in his case because as soon as the X EU country court had given its judgment, only the recognition could be debated. The matters of free movement and EU citizenship were discussed as well in the given context.

15. Subsequently, the complainant sent e-mails to the Commission on 8 June, 14 September and 23 October 2009. The complainant did not receive an acknowledgement of receipt or a substantive reply to these e-mails.

16. He also wrote to the Secretary-General of the Commission on 14 October 2009 and received a reply on 12 November 2009. It was signed by the Director General of DG Justice.

17. In that reply, the Commission maintained its earlier position as regards the applicability of the 1968 Convention, and not the Brussels Regulations, to the complainant's case. As regards the alleged discrimination, the Commission stated that Article 12 EC[13], if read in conjunction with Article 18 EC,[14] prohibits any discriminatory treatment on the basis of nationality in a Member State between its nationals and those of another Member State. The Irish rules on jurisdiction treated the complainant, an Irish citizen, as an Irish national and therefore there was no discrimination on the grounds of nationality. As regards the complainant's allegation that he was penalised for having returned to Ireland, the Commisison referred to the D'Hoop[15] case-law, which states that EU citizenship enables migrant EU citizens who are in the same situation to enjoy the same treatment in law irrespective of nationality. The Commission interpreted D'Hoop to mean that national rules applicable to returning nationals should not be less favourable than those applicable to nationals who have not made use of the right to free movement. The fact that the Irish courts had jurisdiction for the divorce cases of nationals who stayed in the country and also for the divorce of the complainant, an Irish citizen, who moved to another country, shows that there was no less favourable treatment. The Commission also recalled that European law (as regards taxation, see Block[16] and as regards social security, see Piatkowski[17]) offers no guarantee to an EU citizen that transferring his activities to another Member State than the one in which he previously resided will be neutral. The Irish rules are inherently neutral and do not punish those to whom they apply for having exercised their right to free movement. Although there is a discrepancy in the complainant's personal status in Ireland and the X EU country, this is not an obstacle to the right of free movement. On the other hand, the rules on personal status are not part of European law but are part of national law. The application of Irish rules on personal status to the complainant's case might be considered disadvantageous for him, but this is an "unfortunate" consequence of the disparity of national rules on personal status in Ireland and the X EU country.

18. The complainant was not satisfied with the content of the Commission's answers and turned to the Ombudsman on 17 November 2009.

The subject matter of the inquiry

19. The Ombudsman decided to open the present inquiry into the following allegations and claim:

Allegations:

(1) The Commission failed to address and provide an answer to the complainant's arguments concerning:

(a) the judgment in the De Wolf v Cox case;

(b) the Commission's website on Community legislation;

(c) the Irish Supreme Court's infringement of EU law by not submitting a specific question for a preliminary ruling; and

(d) the fact that, in light of the Vienna Convention on the Law of Treaties of 23 May 1969,[18] the Irish Supreme Court should not act contrary to the object and purpose of the Brussels Regulations.

(2) The Commission failed to acknowledge and to answer in substance the e-mails the complainant sent to DG Justice on 8 June, 14 September and 23 October 2009.

Claim:

The Commission should provide an exhaustive answer to all the complainant's arguments.

The inquiry

20. On 17 November 2009, the complainant submitted a complaint to the Ombudsman. He supplemented his complaint on 3 and 7 December 2009. The complaint was forwarded to the Commission with a request for an opinion on its content by 30 April 2010. Once received, the Commission's opinion was forwarded to the complainant with an invitation to submit observations. The complainant sent his observations on 29 May 2010.

The Ombudsman's analysis and conclusions

A. Alleged failure of the Commission to address and provide an appropriate answer to the complainant's specific arguments and related claim

Arguments presented to the Ombudsman

21. In summary, the complainant considered that the Irish courts' non-recognition of the divorce and post-divorce maintenance judgment issued in another Member State, and the subsequent acceptance of their own jurisdiction on a "new" divorce and maintenance judgment, violates EU law. He referred in particular to the Brussels I and II Regulations in this regard. He also took the view that the 1968 Convention was not properly applied and argued that if the divorce and its financial consequences are decided by a court in one Member State, the relevant judgments should be recognised automatically everywhere else in the EU.

22. He referred to the ECJ's judgment in De Wolf v Cox[19], in which the Court stated that when a court first seized has already given a judgment, the acceptance of a cause of action concerning the same subject matter and between the same parties would be incompatible with Article 26 of the 1968 Convention. In this context, he did not understand the true meaning of the Commission's statement in its letter dated 30 April 2009 that, given that the complainant and his ex-wife had both moved to Ireland, they were both subject to the Irish courts' jurisdiction on maintenance.

23. He also argued that, in light of the Vienna Convention on the Law of Treaties[20], once the European Community has legislated, Member States shall not do anything that could impede the objective of the Community rules. Therefore, even if the X EU country divorce dated Z and maintenance judgments dated Z were not covered by the Brussels Regulations applicable since 2001 and 2002, the Irish Supreme Court decision in 2008 should have respected the principles contained in these Regulations and thus not have created "a new divorce" if there already existed a divorce between the same parties.

24. In its opinion to the Ombudsman, the Commission held that no violation of EU law had occurred in the complainant’s case that would require launching a procedure under Article 258 TFEU.

25. It further considered that it had sufficiently answered and explained its views in the letters it sent to the complainant. It noted that the main problem was that the complainant disagreed with the Commission's view that his case should be considered in the context of the 1968 Convention and not, as he thought, under the Brussels I Regulation. In this regard, it pointed out that Article 66 of the Brussels I Regulation clearly only applies to legal proceedings instituted after its entry into force, that is, after 1 March 2002. Since the legal proceedings were instituted by the complainant's wife in 2000, the correct legal context is the 1968 Convention. In this regard, the Commission recalled its letter to the complainant dated 30 April 2009, in which it explained that, given that the 1968 Convention is an international agreement concluded between the Member States and thus part of international law and not a Community legal instrument, the Commission does not have the power to control its application. For that reason, the Commission did not consider it necessary to take a detailed position on all the complainant's allegations relating to the correctness of the Irish Supreme Court's interpretation of the 1968 Convention (such as the allegation on the incorrectness of the Irish judgment in light of the judgment in De Wolf v Cox). This approach was reinforced by the fact that the Irish Supreme Court based its interpretation on Article 27(4) of the 1968 Convention that is not included in the Brussels I Regulation.

26. Nevertheless, the Commission’s officials explained this orally to the complainant during the meeting of 5 June 2009, and the complainant’s subsequent e-mail of 8 June 2009 shows that he had taken notice of these explanations, even if he did not agree with them. In addition, in its reply to the complainant of 12 November 2009, the Commission clarified its understanding that the lis pendens rule of the Brussels I Regulation (Article 27(2)) does not apply in his case. The complainant referred to this interpretation when pointing to the De Wolf v Cox case-law.

27. As regards the Commission's website on Community legislation, the Commission highlighted that the complainant did not mention any concrete website containing obvious errors. The most common websites on civil justice cooperation mention that the 1968 Convention was replaced by the Brussels I Regulation. The Commission provided links to these websites.

28. Regarding the possible obligation of the Irish Supreme Court to submit a question to the ECJ for a preliminary ruling, the Commission first noted that the possibility to submit these types of questions in relation to the 1968 Convention is based on the Protocol to that Convention concerning its interpretation by the Court of Justice, dated 3 June 1971, and not on Article 267 TFEU. It therefore falls within the sphere of international law.

29. As regards the complainant's argument regarding the obligation of the Irish Supreme Court not to act contrary to the object and purpose of the Brussels Regulations, the Commission noted that, as explained in its letter to the complainant dated 29 January 2009, the Brussels I Regulation should not be applied retroactively but only to legal proceedings instituted after 1 March 2002 ("This covers the object and the purpose of the said Regulation"). In sum, the Commission did not share the complainant's view that the Irish Supreme Court acted contrary to the Brussels I Regulation.

30. In his observations, the complainant stated that the Commission had failed to reply to many of his arguments, for instance, to the fact that the Irish Supreme Court was obliged, at the time of its decision, to ensure that the latter was compatible with the Brussels Regulations. According to the complainant, the transitional provisions of the Regulations are intended for cases when the matter is tried for the first time between the same parties. The complainant argued that, although the Irish courts were not obliged to adopt the measures of the Brussels Regulations before the end of the period prescribed for transposition, "during that period they [were obliged to] refrain from taking any measures liable seriously to compromise the result prescribed". He referred to the relevant case-law in this respect[21].

31. The complainant highlighted that the Commission stated that the judgment in De Wolf v Cox does not apply in his case, but it did not duly explain why. In addition, he argued that the Commission's interpretation of Article 27 of the Brussels I Regulation on lis pendens is incompatible with this case-law, which refers to the equivalent clause in the 1968 Convention (Article 21). The Commission stated that this article only applies when actions in different member States are concurrent, whereas, in the above judgment, the ECJ held that the equivalent clause in the 1968 Convention (Article 21) also applies when a court in another Member State has already decided on the same matter. The complainant took the view that the transitional provisions of the Brussels Regulations only cover the proceedings instituted for the first time.

32. As regards the website, the complainant noted that the 1968 Convention is in the Directory of Community legislation in force on the EUR-Lex website and is also listed under "Community instruments existing at the time of the request for an opinion." However, the Commission considered, in its correspondence with the complainant, that the 1968 Convention is not part of Community law. The complainant took the view that, although this might have been so in 1968, the situation had changed by 2008. He pointed out that the ECJ takes a very wide view of what EU law is (the complainant referred in this respect to the Court's Opinion 1/03, dated 7 February 2006[22]).

33. He also developed his original view regarding why the Irish Supreme Court's decisions infringe the principles of the Vienna Convention. He considered that the Irish court should not have applied Article 27(4) of the 1968 Convention after Ireland had already agreed to join the Brussels I Regulation, in which a comparable article does not exist.

34. Finally, he made comments on the Irish courts' knowledge of EU law, their interpretation of the concept of domicile and on other points of Irish substantive law and case-law.

The Ombudsman's assessment

Preliminary remarks concerning the complainant's comments on the Irish institutions and law

35. The Ombudsman is empowered to receive complaints concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies[23]. He cannot deal with complaints against national authorities.

36. Consequently, the Ombudsman shall not make any reference in the present decision to the complainant's account of the actions of the national authorities, as this falls outside the scope of his powers of inquiry.

Preliminary remarks concerning the Commission's refusal in substance to open infringement proceedings

37. The complainant's infringement complaint concerned the Irish courts' alleged violation of Community law as regards the latter's' refusal to recognise (a) the divorce judgment and (b) the maintenance judgment issued by the X EU country court in Z and, as a result, the acceptance of their own jurisdiction on the divorce and maintenance between the same parties in 2008. As regards (a), the Commission refused to open infringement proceedings because Irish law and not the Brussels II Regulation II[24] was applicable to the recognition of the divorce in question; as regards (b), because the 1968 Convention, which was not part of Community law, was applicable and not the Brussels I Regulation.

38. The Ombudsman notes that the complainant contests first the Commission’s view that neither of the Brussels Regulations apply in his case because they should apply only to the recognition of the proceedings instituted after their respective entrance into force (for the Brussels II Regulation, 1 March 2001 and for the Brussels I Regulation, 1 March 2002). Second, the complainant considers that the Commission’s argument that the 1968 Convention is not part of Community law does not stand.

39. As regards the first issue, relating to the transitional provisions of the Regulations, the Ombudsman agrees with the Commission. These transitional provisions are clear. Paragraph 1 of Article 66 of the Brussels I Regulation and of Article 42 of the Brussels II Regulation establish that the provisions of the Regulations shall apply only to legal proceedings instituted, and to documents drawn up or registered as authentic instruments, after their respective date of entry into force.

40. Moreover, paragraph 2 of the above articles states (a sensu contrario) that the provisions of the Regulations do not apply to the recognition and enforcement of judgments given before the dates when the Regulations entered into force. The Ombudsman notes that paragraph 2 provides for the following exception to the above rule: "[i]f the proceedings in the Member State of origin were instituted before the entry into force of this Regulation, judgments given after that date shall be recognised and enforced in accordance with Chapter III, (a) if the proceedings in the Member State of origin were instituted after the entry into force of the Brussels or the Lugano Convention both in the Member State of origin and in the Member State addressed; (b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Chapter II or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted" (emphasis added). In the case of the Brussels II Regulation, paragraph 2 of Article 42 provides for the exception that a "[j]udgment given after the date of entry into force of this Regulation in proceedings instituted before that date shall be recognised and enforced in accordance with provisions of Chapter III if jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted." (emphasis added)

41. The Ombudsman is not aware of any European Union case-law which allows for an interpretation that the above transitional provisions only cover proceedings instituted for the first time (as argued by the complainant in his observations), regardless of the date of the judgment for which recognition/enforcement is sought. It also does not appear that these provisions should be necessarily interpreted in conjunction with the rules on lis pendens (Article 27 of the Brussels I Regulation and Article 11 of the Brussels II Regulation), as suggested by the complainant.

42. It follows that the Commission rightly found that the issue of the recognition/enforcement in Ireland of the X EU country judgment on divorce and maintenance given in Z, that is, many years before both Regulations entered into force, could not be covered by the latter.

43. As regards the second issue, that is, the Commission’s view that it could not open infringement proceedings as regards the maintenance case because the 1968 Convention applied by the Irish Courts was not part of Community law, the Ombudsman notes that, in the Court of Justice's Opinion dated 7 February 2006, to which the complainant referred in his observations, the 1968 Convention is indeed mentioned in the section entitled "Community instruments existing at the time of the request for an opinion". However, in paragraph 15 of that opinion, the Court classified the 1968 Convention "as a convention under international law."

44. The Ombudsman agrees with the complainant that there is no uniform position in the legal doctrine[25] as to whether the subsidiary conventions (including the 1968 Convention) concluded by the Member States on the basis of Article 293 EC (formerly Article 220 EC)[26] form part of the Community legal system or rather part of international law.

45. This does not mean, however, that the Commission cannot take the view that the 1968 Convention is not a Community legal instrument but rather part of international law. According to the case-law of the Community courts, the Commission disposes of a wide margin of discretion when deciding whether or not to pursue a Member State for an alleged infringement of EU law[27]. This discretion should necessarily involve the above view.

46. Finally, the complainant is right to point out that the ECJ has held that, in so far as the Brussels I Regulation replaces the 1968 Convention (with the exception of the Kingdom of Denmark), the interpretation given by the court as regards that convention also applies to the Regulation. The provisions of the Regulation and those of the 1968 Convention may thus be treated as equivalent[28]. This does not mean, however, that the Irish courts' recognition of the X EU country maintenance judgment dated Z falls under the scope of the Brussels I Regulation and therefore that the Commission would be competent to pursue the Irish courts' alleged infringement of the Court of Justice's interpretation. The fact that the Brussels I Regulation replaces the 1968 Convention, and does not contain a provision equivalent to Article 27(4)[29] of the 1968 Convention applied by the Irish Court, does not affect the above conclusion.

47. In light of the above, the Ombudsman considers that the Commission’s decision that it is not empowered to initiate infringement proceedings on the basis of Article 258 TFEU (formerly Article 226 EC) in the complainant’s case is justified.

48. The Ombudsman understands that the complainant may be disappointed with the Commission’s lack of power to act in his case since, as rightly pointed out by the Commission in its letter to the complainant dated 29 January 2009, his legal situation happened to be contrary to the spirit of the EU legal order that a decision on divorce given in one Member State shall be recognised in another Member State. It is also true that Article 27(4) of the 1968 Convention did not facilitate the recognition of the foreign judgments and was therefore repealed in the Brussels I Regulation. The Commission correctly observed in its above letter that the law had changed in the meantime and the complainant's situation would thus have been different if it could have been judged on the basis of that new law. Nowadays, the Brussels II Regulation bis prevents the jurisdiction of two countries on the same matter based on differing national conflict-of-law rules. As the Commission rightly pointed out in its above letter, "[t]he area of freedom, security and justice we are creating in the EU is based on the patient assembly of building blocks through legislation over a period of time. One may regret that today’s rules do not apply to issues which arose in the past, but legislation is retroactive only in exceptional circumstances for which specific provision is made. That is not the case here."

Alleged failure to reply to the complainant's arguments properly

49. Against the above background, the Ombudsman emphasises that, in situations where the Commission decides that it is prevented by law from taking any action whatsoever, even though the overall sense of justice and fairness would indeed suggest that such action should be taken, the Commission should be particularly careful and diligent when replying to citizens’ concerns.

50. The Ombudsman notes in this respect that, in the present case, the Commission not only exchanged letters and e-mails with the complainant, but also met him once to explain to him better its views on the matter. This should be praised.

51. The Ombudsman will thus assess the quality of the explanation provided by the Commission as regards three specific arguments advanced by the complainant.

As regards the judgment in the De Wolf v Cox case

52. In its judgment in De Wolf v Cox, the ECJ interpreted the 1968 Convention and recognised the principle of res judicata by holding that "to accept the admissibility of an application concerning the same subject-matter and brought between the same parties as an application upon which judgment has already been delivered by a court in another contracting state would … be incompatible with the meaning of [Article 26 of the 1968 Convention which provides that "[a] Judgment given in contracting state shall be recognised in the other contracting states without any special procedure being required"].

53. The complainant referred to this judgment by saying that he could not understand why the Commission stated in its letter dated 12 November 2009 that he and his ex wife were living in Ireland when the latter brought an action before the Irish courts and that they were therefore "subject to the jurisdiction of the Irish courts for the maintenance case."

54. The Ombudsman agrees with the complainant that the Commission's statement was unfortunate because it does not seem appropriate to separate, in the given context, the issue of the recognition of the existing X EU country judgment on maintenance from the Irish jurisdiction on the same matter.

55. Nevertheless, the Ombudsman notes that, in its opinion and in light of the De Wolf v Cox judgment, the Commission found it more appropriate not to take a stance on the Irish Supreme Court's position. It rather took the position that the alleged infringement is not within its investigative powers. The Commission’s approach is understandable, as demonstrated above in paragraphs 39-42. Since the Commission clearly outlined its approach in its opinion, the Ombudsman considers that no further inquiry is justified in this respect.

As regards the Commission's website on Community legislation

56. In its opinion, the Commission referred to its two websites (of DG Justice and of the European Judicial Network in Civil and Commercial Matters), which outline that the 1968 Convention was replaced by the Brussels I Regulation.

57. This information is obviously correct. However, as the complainant clarified in his observations, his point was rather that the Commission took the view that the 1968 Convention was not a Community legal instrument, while (i) the Directory of Community legislation in force on the EUR-Lex website mentions the 1968 Convention and (ii) in the ECJ's Opinion 1/03[30], the Convention is listed under "Community instruments existing at the time of the request for an opinion." However, in light of his finding in paragraphs 43-47 above, the Ombudsman does not consider that he should pursue this matter further.

As regards the Irish Supreme Court's alleged failure to submit a specific question for a preliminary ruling

58. The complainant argued that the Irish Supreme Court infringed EU law by not submitting a preliminary question to the ECJ concerning the application of the 1968 Convention.

59. In the opinion, the Commission clearly took a stance on this issue. It first pointed out that a preliminary question in relation to the 1968 Convention has to be based on the Protocol[31] to that Convention and not on Article 267 TFEU. For this reason such a preliminary question falls within the sphere of international and not EU law. In light of the above, the Commission could not pursue this matter under Article 258 TFEU.

60. In light of his findings in paragraphs 43-47 above, the Ombudsman finds this explanation to be reasonable.

As regards the argument that, in light of the Vienna Convention on the Law of Treaties of 23 May 1969,[32] the Irish Supreme Court should not act contrary to the object and purpose of the Brussels Regulations

61. The complainant's above argument was submitted in his letter to the Commission dated 25 May 2009 and his e-mails of 14 September and 23 October 2009. The complainant considered, in summary, that the Irish Supreme Court should have taken into account the provisions of the Brussels Regulations in order not to defeat their objective and purpose because it was deciding on the recognition of the X EU country divorce (and maintenance) in 2008, that is, after these Regulations had already entered into effect. In his observations on the opinion, the complainant added that when the relevant Irish court started proceedings regarding the recognition of the X EU country divorce and maintenance following his ex wife’s action in 2000, Ireland had already agreed to participate in the Brussels II Convention[33].

62. The Ombudsman understands that, by submitting this argument, the complainant wished to refer to Article 18 of the Vienna Convention on the Law of Treaties of 23 May 1969[34] and Article 18 of the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations of 21 March 1986. These articles provide that a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty or provided that such entry into force is unduly delayed.

63. In the Ombudsman's understanding of the complainant's argument, he considered that the Irish Supreme Court should not have decided contrary to the rules of the Brussels Regulations, which do not allow for situations in which the disparity of national conflict-of-law rules on personal status could have implications on the mutual recognition of a divorce.

64. In its opinion, the Commission appeared, however, to understand the complainant's argument in a different way. It recalled that the Brussels I Regulation should be applied not retroactively but only to legal proceedings instituted after 1 March 2002. The Commission stated that "this covers the object and the purpose of the said Regulation."

65. The Ombudsman is not convinced that the Commission analysed diligently the complainant's argument in its opinion.

66. Nevertheless, if the complainant wishes to make the analogy with the relevant case-law concerning the Vienna Convention[35], using such an analogy in the present case would be reaching too far. The Ombudsman does not agree, therefore, that the Commission should have taken such an analogy into consideration when deciding whether its action under Article 258 TFEU was justified or not in the complainant's case. The Ombudsman considers, therefore, that no further inquiry is justified as regards this aspect of the complaint.

B. Alleged failure of the Commission to acknowledge and to answer in substance the e-mails the complainant sent to DG Justice on 8 June, 14 September and 23 October 2009

67. In its opinion, the Commission took the view that it had replied to the complainant’s above e-mails in its letter dated 12 November 2009.

68. The Ombudsman agrees with the complainant that the Commission's letter of 12 November 2009 did not contain a substantive reply to all of the many points he made in the e-mails in question.

69. The Ombudsman notes that, in his e-mail of 8 June 2009, the complainant referred to the meeting he had had with the Commission on 5 June 2009. He stated that he found "the discussion very open with a good opportunity to put my points forward" and referred to his views: (i) that Article 66 of the Brussels Regulation I on transitional provisions does not have any bearing on the application of Article 27(2) of the same Regulation on "lis pendens" because the latter should apply from the effective date when the court is hearing the application and not from when the proceedings were lodged; (ii) that the Irish courts should have declined their jurisdiction in his case since the "res judicata" under the 1968 Convention must remain so under the Brussels Regulation I; (iii) that the Community law must be applied in a teleological sense but Irish courts have done "everything" which "conflicts with the basic principles" of that law.

70. In his e-mail of 14 September 2009, the complainant stated inter alia that: (i) the most urgent issue for him was for the Irish courts to decline their jurisdiction; (ii) the clear purpose of the Brussels Regulations is to prevent relitigation in different Member States; (iii) the proceedings to which the Regulations refer are those instituted between the same parties for the first time; (iv) the Irish courts' jurisdiction in his case was "entirely" governed by the Brussels Regulations; (v) he proposed a meeting with the Commission; (vi) he should not be divorced twice, once in the X EU country in Z and then again in Ireland, and (vii) the letter from the Commission that it is dealing with the matter would allow the complainant's lawyer to raise the issue of jurisdiction before the Irish court. He also referred to (viii) the Irish vote on the Lisbon Treaty and (ix) the Vienna Convention on the Law of the Treaties, which gives a guarantee that the purpose of EU law shall not be compromised.

71. In his e-mail of 23 October 2009, the complainant stated that he would submit his case to the Ombudsman. In this regard, he referred to, among other things, (i) Article 65 of the Amsterdam Treaty and, again to the Vienna Convention on the Law of the Treaties when arguing that, in 2008, the Irish Court should not have given a judgment which was against the principles and objective of the Regulations and the above Article of the Amsterdam Treaty; (ii) the rule lis pendens in light of De Wolf v Cox; (iii) the relevant websites on the Community legislation in force which mention the 1968 Convention; and (iv) the Irish Supreme Court's failure to submit to the ECJ a request for a preliminary ruling.

72. The above overview of the complainant's allegedly unanswered e-mails leads to the conclusion that it would have been difficult for the Commission to reply in substance and exhaustively to all the above complainant's concerns in only one letter. Reasonably, in its letter dated 12 November 2009, the Commission was only able to focus on some points made by the complainant in his e-mails.

73. Nevertheless, the Ombudsman notes that the complainant's e-mails in question concerned the same substantive issues outlined in his earlier correspondence with the Commission, to which the latter had replied in a number of letters and e-mails (summarised above under the heading "The background of the complaint"), and also during a meeting, which the complainant himself found useful.

74. In light of the above, the Ombudsman does not consider that it is necessary for him to inquire into this matter further.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman finds that no further inquiries are justified.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 February 2011

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[1] Article 41.2 of the Irish Constitution in force until 1995 did not allow for a divorce in Ireland. In this regard, see also point 193 of P. Schlosser's report outlined below, in which he discusses the possibility in Ireland of using the clause of public judgment to refuse the recognition of a foreign decision on maintenance in a divorce judgment (Report on the association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, OJ 1979 C 59, p. 71).

[2] OJ 2000 L 160, p. 19.

[3] On 1 March 2005, this Regulation was subsequently replaced by the Brussels II Regulation bis.

[4] OJ 1972 L 299, p. 32.

[5] OJ 2001 L 12, p. 1.

[6] OJ 1975 L 24, p. 28.

[7] On 1 July 2010, DG for Justice, Freedom and Security was divided into two separate Directorates-General: the DG for Justice and the DG for Home Affairs.

[8] Case C-493/04 Piatkowski [2006] ECR-I-2369, paragraph 34.

[9] Now Article 18 TFEU.

[10] Vienna Convention on the Law of Treaties of 23 May 1969, which entered into force on 27 January 1980: United Nations, Treaty Series, vol. 1155, p. 331.

[11] Case C-42/76 De Wolf v Cox [1976] ECR-1759, paragraphs 10-11.

[12] This Article provides that: "A judgment given in Member State shall be recognised in the other Member States without any special procedure."

[13] Now Article 18 TFEU.

[14] Now Article 21 TFEU.

[15] Case C-224/98 D'Hoop [2002] ECR I-6191.

[16] Case C-67/08 Block [2009] ECR I-883.

[17] See footnote 9.

[18] See footnote 11.

[19] See footnote 12.

[20] See footnote 11.

[21] Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411.

[22] "Competence of the Community to Conclude the New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters", Opinion of the Court of Justice 1/03 of 7 February 2006.

[23] Article 228 TFEU.

[24] See footnote 3.

[25] To illustrate this, the Ombudsman refers to the views of two academics: Ivo Schwartz found that, although some academics (Zuleeg, Schlosser) consider that the 1968 Convention is part of EC primary law, the prevailing opinion in the German doctrine is that it is not part of EC law, but should be dealt with as such (Ivo Schwartz, «Übereinkommen zwischen den EG-Staaten : Völkerrecht oder Gemeinschaftsrecht?», in: Im Dienste Deutschlands und des Rechts, Festschrift für Wilhelm Grewe, 1981, page 551). According to Margot Horspool, "Conventions under Article 293 … probably form part of the Community legal system. Thus, when new member states join [the EU], they have to acceed to the conventions as part of the acquis communautaire." (Margot Horspool, European Union law, Lexis Nexis UK, 2004, page 81).

[26] The TFEU repealed this Article.

[27] Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 46; Case 247/87 Star Fruit v Commission [1989] ECR 291; Case 87/89 Société nationale interprofessionnelle de la tomate and others v Commission [1990] ECR-I 1981; Judgment of the Court in Case T-182/97 Ségaud v Commission [1998] ECR II-271. See also the Ombudsman's decisions on complaints 962/2006/OV, 3453/2005/GG, 3125/2005/BB, 995/98/OV, 480/2004/TN and 493/2000/ME, which can be found on the Ombudsman's website (http://www.ombudsman.europa.eu).

[28] Case C-180/06 Ilsinger [2009] ECR-I-0000, paragraph 41.

[29] This provision allowed for the refusal of the recognition of a judgment if the court of origin decided on the preliminary question concerning the status of a natural person in a way which conflicts with the a rule of the private international law of the State in which the recognition is sought. The entire text is quoted in paragraph 4 of the present Decision.

[30] See footnote 19 above.

[31] It should be noted in this respect that criteria established by the ECJ for references for a preliminary ruling on the interpretation of EU law on the basis of Article 267 TFEU and Article 19(3)(b) TEU apply also to the references on the interpretation of the Brussels Convention submitted on the basis of the Protocol.

[32] See footnote 11.

[33] This convention on the jurisdiction, recognition and enforcement of judgments, limited to matrimonial matters, never entered into force. The Brussels II Regulation replaced it.

[34] United Nations Treaty Series, Vol. 788, p. 354.

[35] Case T-115/94 Opel Austria v Council [1997] ECR II-39. The Ombudsman notes that this case concerns the obligations of the Communities. In paragraphs 91 and 93 of the judgment, the Court of First Instance held that the principle of good faith is a rule of customary international law whose existence is recognised by the International Court of Justice and is therefore binding on the Community and that that principle was codified by Article 18 of the first Vienna Convention. The Court also held that the principle of good faith is the corollary in public international law of the principle of protection of legitimate expectations which, according to the case-law, forms part of the Community legal judgment. The Court found, furthermore, that, in a situation where the Communities have deposited their instruments of approval of an international agreement and the date of entry into force of that agreement is known, traders may rely on the principle of protection of legitimate expectations in judgment to challenge the adoption by the institutions, during the period preceding the entry into force of that agreement, of any measure contrary to the provisions of that agreement which will have direct effect on them after it has entered into force.