French Supreme Court Rules on Negligence in Taking the Required Steps under EU lis pendens Rules
This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.
In a judgment of 22 November 2023, the French Supreme Court has ruled that a court is “deemed to be seized” under Article 16(a) of the Brussels II bis Regulation at the time which the document instituting proceedings is lodged with the court, irrespective of whether the applicant lacked diligence in the accomplishment of the required steps to serve the defendant.
Background
The parents of a child born in 2012 in France separated in 2014. The mother and the child lived in Germany from 2015 to 2018. The father brought an action before the Family Court of Nantes (juge aux affaires familiales) on 28 May 2019, two months before the mother and the child went back from France to Germany, for the purpose of deciding upon the terms and conditions of parental responsibility.
In December 2019, the Family Court issued a summon to the defendant’s address (the mother) in France for the hearing, which came back stating that the recipient was unknown at this address. In January 2020, the Court invited the plaintiff to serve the defendant for a hearing which was eventually postponed because of COVID. On 18 September 2020, the father eventually served the defendant notice of the act introducing the proceedings, as required by the Court.
On 17 March 2020, however, the defendant had seized the German court for the purpose of deciding upon parental responsibility.
The French Family court declined its jurisdiction on the ground that that German court had been seized first.
Court of Appeal
By a judgment of 25 October 2021, the Rennes Court of Appeal upheld the first instance court’s decision. It ruled that by failing to inform in due course the court registry of the defendant’s new address in Germany and the defendant of the ongoing proceedings against her before serving her, the applicant had been grossly negligent within the meaning of Article 16(a) of the Brussels II bis Regulation as he failed to take the required steps to serve the defendant. As a result, by the time the applicant served the defendant, the child’s habitual residence had been transferred to Germany and German courts were thus competent to rule on parental responsibility.
Judgment
The issue was therefore to determine whether the applicant’s failure to inform the court registry of the defendant’s new foreign address and the defendant of the pending proceeding before serving the document on the defendant is constitutive of a “failure to take the [required] steps” under Article 16(a) of the Brussels II bis Regulation.
By a judgment of 22 November 2023, the French Supreme Court overruled the Rennes Court of Appeal’s decision.
The Court first recalled that pursuant to Article 8 of the Brussels II bis Regulation, the competent courts in matters of parental responsibility are the courts of the Member State in which the child is habitually resident at the time the court is seized. The Court went on to rule that, according to Article 16(a) of the Regulation, a court is deemed to be seized upon accomplishment of only one formality: the filing of the document instituting proceedings. Therefore, the Rennes Court of Appeal, having noted that the applicant had filed the request then properly served the defendant, could not decline jurisdiction on the ground that the applicant had failed to take the required steps to serve the defendant.
The French Supreme Court also refused to stay the proceedings and refer the matter to the Court of Justice of the European Union for a preliminary reference as there was no reasonable doubt about the interpretation of Article 16(a) of the Brussels II bis regulation.
Assessment
The applicant having regularly lodged the document instituting proceedings with the court, the French court was already seized even though the defendant had not been served yet. This interpretation of Article 16(a) of the Brussels II bis Regulation is rather strict: the court is deemed to be seized as soon as the document instituting proceedings is regularly filed by the applicant, without the circumstances in which the required steps are then accomplished by the applicant being relevant for this purpose.
In a report presenting the judgment, the Court explained that the concept of negligence should be given an objective meaning, and be understood as an ‘omission’ to serve the document. The lower court had, in contrast, given the concept a subjective meaning focused on whether the plaintiff had been negligent.
Arguably, this interpretation remains relevant under the Brussels II ter Regulation, which applies since 1 August 2022, given that Article 17(a) of the latter text is basically identical to Article 16(a) of the Brussels II bis Regulation.