Articles 6 and 7 of the Brussels II Regulation (No
2201/2003) 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
Article 3 of the Brussels II Regulation.
According to the clear wording of Article 7(1) of
the Brussels II Regulation, it is only where no court of a Member
State has jurisdiction pursuant to Articles 3 to 5 of the Regulation
that jurisdiction is to be governed, in each Member State, by the
laws of that State. Moreover, according to Article 17 of the Brussels
Regulation, where a court of one Member State is seised of a case
over which it has no jurisdiction under that regulation and a court
of another Member State has jurisdiction pursuant to that regulation,
it is to declare of its own motion that it has no jurisdiction.
That interpretation is not affected by Article 6
of the Brussels II Regulation, since the application of Articles 7(1)
and 17 of that Regulation depends not upon the position of the respondent,
but solely on the question whether the court of a Member State has
jurisdiction pursuant to Articles 3 to 5 of the Regulation, the objective
of which is to lay down uniform conflict of law rules for divorce
in order to ensure a free movement of persons which is as wide as
possible. Consequently, the Brussels II Regulation applies also to
nationals of non-Member States whose links with the territory of a
Member State are sufficiently close, in keeping with the grounds of
jurisdiction laid down in that regulation, grounds which are based
on the rule that there must be a real link between the party concerned
and the Member State exercising jurisdiction (see paras 18-19, 21,
25-26, 28, operative part).