Opinion of Advocate General Richard de la Tour delivered on 28 November 2024.#E.M.A. and Others.#Request for a preliminary ruling from the Sofiyski rayonen sad.#Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) 2019/1111 – Scope – Article 1(1)(b) and (2)(e) – Measure relating to the disposal of the property of a child – Article 7 – Jurisdiction in matters of parental responsibility – Article 10 – Choice of court – Regulation (EU) No 1215/2012 – Scope – Article 1(2)(a) – Exclusion concerning the status or legal capacity of natural persons – Rules on jurisdiction laid down in a bilateral agreement between the Republic of Bulgaria and the Russian Federation concluded before the accession of the Republic of Bulgaria to the European Union – Difference between those rules and the rules laid down in Regulation 2019/1111 – Article 351 TFEU – Concept of ‘incompatibility’.#Case C-395/23.

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’.

8.

Article 1 of that regulation, headed ‘Scope’, provides, in paragraph 1(b) and paragraph 2(e), that it applies in civil matters of the attribution, exercise, delegation, restriction or termination of parental responsibility, including, in particular, measures for the protection of the child relating to the administration, conservation or disposal of the property of a child.

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:

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.

I would point out that this question, which seeks to determine the conditions under which the Russo-Bulgarian Treaty is not affected by the Brussels IIb Regulation, is based on the following two findings:

53.

With regard to the first finding, I would note that the referring court refers to the decision of 2 June 2015 of the Varhoven kasatsionen sad (Supreme Court of Cassation), in a case concerning Russian minors. ( 36 ) In the absence of an express provision in the Russo-Bulgarian Treaty on the protection of the property of a minor, the criterion designating the court with international jurisdiction was drawn from the law applicable to the form of contracts. By combining the application of Article 130(3) of the Family Code and Article 586(1) of the Code of Civil Procedure, and of Article 30 of the Russo-Bulgarian Treaty, which designates the law of the location of the property, like Article 65(1) of the Code of Private International Law, ( 37 ) the Varhoven kasatsionen sad (Supreme Court of Cassation) based its decision on that special national legislation, which provides that, in order to draw up a deed for the disposal of a minor’s property, the notary must have prior judicial authorisation. In other words, it was held that those special legal requirements justify derogating from the general rule that the court of the child’s place of residence has jurisdiction, laid down in national law, ( 38 ) which coincides with the law applicable in relationships between parents and children, in accordance with Article 25(1) of the Russo-Bulgarian Treaty. Consistency is thus ensured between the law applicable to the sale of immovable property and that applicable to international jurisdiction.

54.

As regards the second finding, I would point out that the referring court makes no reference either to recital 91 of the Brussels IIb Regulation, which states 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’, ( 39 ) or to any difficulty in analysing the Court’s case-law on the subject.

55.

The Court could therefore confine itself to stating that, in accordance with the first paragraph of that article, the rights and obligations arising from the Russo-Bulgarian Treaty are not affected by the Brussels IIb Regulation.

56.

However, even if, in formal terms, the referring court has confined its questions to the interpretation of particular provisions of EU law, such a circumstance does not prevent the Court from providing it with all the points of interpretation of EU law which may be of assistance in deciding the case before it, whether or not that court has referred to them in the wording of its questions. In that regard, it is for the Court to extract from all the information provided by that court, in particular from the reasons in the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings. ( 40 )

57.

In those circumstances, and as was confirmed at the hearing, a detailed analysis of the application of Article 351 TFEU ( 41 ) would be useful.

58.

At the outset, it may be pointed out that Article 351 TFEU was not referred to in the instruments which preceded the Brussels IIb Regulation, ( 42 ) although, as in that regulation, they contained no provision relating to bilateral agreements concluded by Member States, prior to their accession to the European Union, with third countries (with the exception of the Holy See). That does not explain the absence of case-law of the Court. In my view, that point is not necessary in view of the hierarchy of norms ( 43 ) and the very clear wording of that article.

59.

Consequently, the examination, in the light of Article 351 TFEU, ( 44 ) of how the Russo-Bulgarian Treaty relates to the Brussels IIb Regulation presupposes that two conditions are met.

60.

First, the Russo-Bulgarian treaty must relate to a matter governed by that regulation. That is the case in so far as that treaty serves, in the present case, to determine the court having jurisdiction ( 45 ) and that, in a procedure such as that in the main proceedings, the connecting factor used in the national case-law cited by the referring court is that of the location of the property belonging to a Russian minor or minors and not the place of their habitual residence, that factor being applicable under the Brussels IIb Regulation.

61.

In that regard, I would point out, in view of the contrary opinion of Hungary, which is bound by the same type of treaty, that the application of the Russo-Bulgarian Treaty in a situation in which the Russian minors do not reside in Bulgaria but in another Member State does not pose any particular difficulty, ( 46 ) since the location of the property is the sole connecting factor discussed in this request for a preliminary ruling concerning Russian nationals.

62.

Moreover, that very criterion, adopted by the Varhoven kasatsionen sad (Supreme Court of Cassation) without any reference to the residence of the minor concerned, ( 47 ) was applied in the main proceedings by the Sofiyski gradski sad (Sofia City Court), by order of 14 June 2023. That decision, cited in the request for a preliminary ruling and included in the file sent to the Court, clearly confirms the choice of a Bulgarian court by the Russian applicants in order to obtain the authorisation required by Bulgarian legislation to draw up the notarial deed of transfer of their property rights. That court, which based its decision on the law applicable to rights in rem, also referred to Article 4(1)(c) of the Rome I Regulation. ( 48 )

63.

Secondly, in order to continue the analysis of how the Brussels IIb Regulation relates to the Russo-Bulgarian Treaty, it is necessary to ascertain whether the third State concerned derives rights from the international convention at issue, which it can require the Member State which is a party thereto to respect. ( 49 )

64.

In other words, in relations with a third State, the principle guiding the analysis is that of respect for the right available to that State in its relations with the Member State with which it concluded an agreement prior to the latter’s accession to the European Union. The implementation of the international agreement in question must be based on reciprocity. ( 50 )

65.

In the present case, in the absence of any clarification from the referring court, it must be assumed that the Russian authorities would adopt the same interpretation of that agreement as regards the jurisdiction of the Russian courts of the location of the immovable property ( 51 ) and that compliance with that criterion would be the condition for the recognition of decisions given by Bulgarian courts concerning Russian nationals. ( 52 )

66.

In that regard, the reservations of the Russian Federation and the Republic of Bulgaria expressed at the time of their accession to the 1996 Hague Convention, on the basis of Article 55(1) thereof, ( 53 ) which concerns jurisdiction, support the existence of a common position on the primacy of the criterion of the place where the property is located, to the exclusion of any reference to the place of residence of the minor concerned.

67.

In those circumstances, it must be held that the Russo-Bulgarian Treaty, as regards the international jurisdiction of the courts seised of an application for authorisation to sell immovable property belonging to a Russian minor, imposes on the Republic of Bulgaria obligations which that Member State is bound to fulfil with regard to a third State, namely the Russian Federation, which is entitled to rely on those obligations against that Member State for the purposes of the first paragraph of Article 351 TFEU.

68.

As a result of that confirmation of the obligation to apply a criterion of jurisdiction derived from the Russo-Bulgarian Treaty, ( 54 ) which is different from that laid down in EU law, it is necessary to address the supplementary question, which concerns the Republic of Bulgaria’s obligation, under the second paragraph of Article 351 TFEU, to take all appropriate steps to eliminate existing incompatibilities between the Russo-Bulgarian Treaty and EU law. ( 55 )

69.

Accordingly, as a first step, it is necessary to determine whether, owing to the existence of competing jurisdictional criteria resulting from the application of the Brussels IIb Regulation and the Russo-Bulgarian Treaty, the rule of jurisdiction derived from that treaty is incompatible with the rule of EU law, for the purposes of the second paragraph of Article 351 TFEU.

70.

Like the Commission, I am of the opinion that the choice of different jurisdictional criteria does not in itself create any major difficulty. Bilateral cooperation treaties are concluded so that the court having jurisdiction can easily be identified on the basis of specific conditions, which are generally the nationality of the nationals or their habitual residence in each of the party States for personal matters or the location of the assets for property matters. Moreover, the opposite view would have the effect of calling into question the principle set out in the first paragraph of Article 351 TFEU.

71.

By contrast, the application of the second paragraph of Article 351 TFEU cannot be ruled out either. In the present case, the question is not purely theoretical, in view of the provisions of successive family law regulations relating to the jurisdiction of courts, enacted with a view to the best interests of the child.

72.

Thus, as was confirmed at the hearing, it is appropriate to consider, in this context of judicial cooperation in civil matters, the lessons to be learned from the case-law of the Court concerning the relationship between particular regulations applicable in that field and conventions to which the Member States are parties and, in particular, the judgments of 4 May 2010, TNT Express Nederland, ( 56 ) and of 12 October 2023, OP (Choice of the law of a third State for succession). ( 57 )

73.

In the case which gave rise to the judgment in TNT, the dispute concerned the enforcement in one Member State of a judgment handed down in another Member State. The referring court essentially asked whether Article 71 of Regulation No 44/2001 must be interpreted as meaning that the rules governing jurisdiction, recognition and enforcement that are laid down by a specialised convention, such as the lis pendens rule set out in Article 31(2) of the Convention on the contract for the international carriage of goods by road ( 58 ) and the rule relating to enforceability set out in Article 31(3) of that convention, apply. ( 59 ) In paragraph 49 of that judgment, the Court held that the abovementioned Article 71 ‘provides, in relation to matters governed by specialised conventions, for the application of those conventions, the fact remains that their application cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the European Union’. In paragraph 55 of that judgment, the Court specifically inferred that ‘Article 31(3) of the CMR can be applied in the European Union only if it enables the objectives of the free movement of judgments in civil and commercial matters and of mutual trust in the administration of justice in the European Union to be achieved under conditions at least as favourable as those resulting from the application of Regulation No 44/2001’.

74.

In the case which gave rise to the judgment in OP, the question arose as to the application of that case-law to the relationship with a third State. ( 60 ) The Court referred to the judgment in TNT and held that ‘the scheme of Regulation [EU] No 650/2012 [ ( 61 )] does not preclude a situation where, under a bilateral agreement concluded between a Member State and a third State before the adoption of that regulation and in the light of the exception laid down in Article 75(1) of that regulation, a third-country national residing in the Member State bound by that bilateral agreement does not have the right to choose the law applicable to his or her succession’. ( 62 )

75.

From a methodological point of view, the conditions under which it may be considered that a rule of international jurisdiction, arising from a treaty concluded with a third State, would be incompatible with EU law, could, in my view, be derived from those decisions.

76.

Thus, two of the elements to be taken into consideration do not constitute obstacles to such a proposal, namely the absence of a provision in the Brussels IIb Regulation concerning its relationship with particular international instruments and the scope of the case-law of the Court since the judgment in TNT as extended to relations with a third State in the judgment in OP.

77.

It is true that, in the judgments in TNT and OP, special provisions of the regulations at issue ( 63 ) are interpreted, which state, in essence, that they do not affect the conventions to which the Member States are parties and which relate to the same matters. ( 64 )

78.

However, the fact that, unlike the Brussels IIb Regulation, those regulations contain a statement of the general rule that they do not affect the application of international conventions to which one or more Member States are parties, or even of the specific provisions relating to bilateral conventions and agreements concluded between a third State and a Member State, ( 65 ) does not, in my view, affect the analysis of the scope of the case-law according to which the EU legislature provided for the application of those conventions in the event of there being concurrent rules. ( 66 )

79.

Those specific provisions have been interpreted as requiring the application of these conventions ‘within the European Union itself’. ( 67 ) Thus, subject to certain adjustments, ( 68 ) the application of the principles of public international law concerning the application of treaties, such as, inter alia, the principle pacta sunt servanda, ( 69 ) reproduced, as regards relations with third States, in the first paragraph of Article 351 TFEU, is extended.

80.

Moreover, I would point out that, in the judgment in TNT, ( 70 ) the Court set a limit to the application of bilateral conventions or agreements, namely the breach of the principles which underlie judicial cooperation in civil and commercial matters within the European Union. ( 71 ) The Court emphasised that it follows on from its case-law on the application of conventions concluded by Member States with third States, which must not be to the detriment of the objectives of EU law in relations between Member States. ( 72 )

81.

The Court has applied the same limit relating to the principles applicable within the European Union in judgments subsequent to the judgment in TNT, in which the rights of a third State were not at issue either. They also concerned issues of recognition or enforcement of judgments handed down in the Member States. Those are the judgment of 19 December 2013, Nipponka Insurance, ( 73 ) and, in an instance of concurrence between Regulation No 1215/2012 and the CMR, the judgment of 21 March 2024, Gjensidige. ( 74 )

82.

The Court also referred in the same terms to that case-law relating to the principles which underpin judicial cooperation within the European Union in the judgment of 4 September 2014, Nickel & Goeldner Spedition, ( 75 ) which concerned the application of rules of jurisdiction provided for in Article 31(1) of the CMR, offering a wider option to the applicant than that provided for in the second indent of Article 5(1)(b) of Regulation No 44/2001. ( 76 ) The Court held that, in accordance with Article 71(1) of that regulation, a Member State may apply the rules on jurisdiction in question laid down in the CMR. ( 77 )

83.

All those judgments relate to the application of provisions of the CMR binding one or more of the Member States.

84.

However, in a case involving the application of a bilateral agreement with a third State, that case-law was applied by analogy. The question of the choice of law applicable to a succession ( 78 ) led the Court to rule on the relationship between Regulation No 650/2012 and the agreement binding the Republic of Poland, prior to its accession to the European Union, and Ukraine. That agreement designates the law applicable to succession, but does not expressly provide for the option of choosing another law. ( 79 )

85.

In the judgment in OP, the Court held that Article 75 of Regulation No 650/2012 ‘governing, within the EU legal act at issue, [ ( 80 )] the relationship between that act and international conventions cannot have a scope which conflicts with the principles underlying the legislation of which it forms part (see, to that effect, [the judgment in TNT], paragraph 51)’. ( 81 )

86.

The Court then proceeded to examine the compatibility of that bilateral agreement with EU law by considering the significance of the provision of the regulation in question. ( 82 )

87.

By concluding that examination in the light of Article 75(1) of Regulation No 650/2012 with a reference to the first paragraph of Article 351 TFEU, the Court has, in my view, highlighted the necessary combination of those provisions in the particular case of relations with third States. ( 83 )

88.

Generally speaking, I infer from that that, in a situation in which the laws of third States must prevail as a matter of principle as a result of a bilateral agreement, ( 84 ) the Court has implicitly expressed the point beyond which a provision of such a convention may be regarded as incompatible with EU law, in accordance with the rule laid down in the second paragraph of Article 351 TFEU.

89.

In other words, by following on from the judgment in TNT, ( 85 ) in a case involving a relationship between a Member State and a third State concerning the applicable law, the Court has, in my view, adopted a systemic approach in order to avoid too quickly calling into question a bilateral agreement which must, as a matter of principle, pursuant to the first paragraph of Article 351 TFEU, take precedence over EU law. ( 86 )

90.

I analyse that approach as consisting of identifying, where cooperation in civil matters within the EU is concerned, the principle underlying the provision of the regulation at issue in order to assess its importance. It is therefore necessary, in the present case, to determine whether or not the provision of the Russo-Bulgarian Treaty conflicts with a fundamental objective pursued in the Brussels IIb Regulation.

91.

It is only after that assessment as to whether they are incompatible that, as a second step, the question of whether or not to apply the provisions of the second paragraph of Article 351 TFEU to relations between one or more Member States and one or more third States. ( 87 )

92.

Owing to the hierarchy of norms, the application of that provision is therefore not reserved to regulations in which a special provision governs the relationship between those regulations and international conventions concluded with third States.

93.

There are several objectives to be achieved in that case. Those are to safeguard the rights of third States, in accordance with the first paragraph of Article 351 TFEU, ( 88 ) and to find a solution consistent with the principles of the predictability as to the courts having jurisdiction and of legal certainty for litigants. Those principles, which justify the inclusion of rules of jurisdiction in international conventions, guarantee the recognition and enforcement of judgments. ( 89 )

94.

Consequently, in the present case, by analogy with the method adopted in the judgment in OP, ( 90 ) the following question must be examined: Does the Russo-Bulgarian Treaty, pursuant to which the court with jurisdiction to authorise the sale of immovable property belonging to a minor is that of the place where the property is located, infringe the principle underlying judicial cooperation in matters of parental responsibility within the European Union, which gives precedence to the jurisdiction of the court of the child’s place of residence?

95.

I do not think so.

96.

While it is true that, having regard to the requirement to act in the best interests of the child, the criterion of jurisdiction is, in general, the place where the child is habitually resident, ( 91 ) the EU legislature has provided for a number of adjustments, subject to satisfying the same requirement and the existence of exceptional circumstances. The same applies to the right to choose a court ( 92 ) and, specifically, to the transfer of jurisdiction to the court best placed to assess those best interests. ( 93 )

97.

In addition, the legislature expressly provided for the situation of a dispute concerning measures for the protection of a child relating to the administration, conservation or disposal of property belonging to the child and situated in the territory of a Member State other than that in which the child is resident. ( 94 )

98.

In that respect, the Brussels IIb Regulation is also consistent with Articles 8 and 9 of the 1996 Hague Convention.

99.

It follows that the rule on jurisdiction laid down in the Russo-Bulgarian Treaty may be applied within the European Union in so far as it satisfies the requirement set out in recital 19 of the Brussels IIb Regulation, while respecting the best interests of the child. ( 95 )

100.

Consequently, there is no need, in the present case, to consider the ‘appropriate steps to eliminate the incompatibilities established’ which the Member States are required to examine under the second paragraph of Article 351 TFEU.

101.

I would add, for the sake of completeness, that if, however, the Court were to consider that the application of the Russo-Bulgarian Treaty leads to a result which is incompatible with EU law, it would be for the referring court to ascertain whether that incompatibility can be avoided by interpreting that treaty, to the extent possible and in compliance with international law, in such a way that it is consistent with EU law. ( 96 ) If it is not possible, the Republic of Bulgaria would be obliged to take the necessary measures to eliminate the incompatibility of that treaty with EU law, where appropriate, by denouncing it. However, pending such elimination, the first paragraph of Article 351 TFEU would permit it to continue to apply the Russo-Bulgarian Treaty. ( 97 )

102.

In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Sofiyski rayonen sad (Sofia District Court, Bulgaria) as follows:

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction

must be interpreted meaning that in accordance with the first paragraph of Article 351 TFEU, it does not affect the application of a bilateral agreement concluded with a third State by a Member State before the date of its accession to the European Union, under which the court of the Member State in which the property is located has exclusive jurisdiction to rule on an application for authorisation to sell immovable property belonging to a minor who is a national of that third State, where that court gives its ruling having regard to the best interests of the child.