Finally , the interpretation which I am recommending is consistent with functional considerations

I would submit, in the fourth place , that, in such a situation, the attainment of the objectives pursued by the legislation of which Article 10 of Regulation No forms part would be compromised

In the third place, and most importantly , the proposition I am putting forward is, in my opinion, fully consistent with the specific purpose of the provision the interpretation of which is sought. As I see it, Article 10 of Regulation No is intended to protect a right, namely the right to obtain a divorce under equal conditions for men and women, so fundamental as not to be open to restriction, even under the law which is in principle applicable to the dissolution, irrespective of whether that law is designated by the intent of the persons concerned or by virtue of other provisions of that regulation. ( 94 ). ( 95 )

In the light of recital 30 of Regulation No ( 96 ) and the discussions that led to the adoption of that instrument, ( 97 ) I share the view of the Hungarian Government and the Commission that the EU legislature considered that the discrimination referred to in Article 10, that is to say discrimination based on the spouses’ sex, was so serious as to warrant an absolute rejection of the entirety of the law which would otherwise have had to be applied, with no scope for exceptions on a case-by-case basis. ( 98 ) That purpose would not be achieved if a discriminatory foreign law were allowed to produce its effects in the territory of a participating Member State on the ground that the spouse discriminated against in the abstract was not adversely affected in the particular case.

The right to treatment free from discrimination, in particular on grounds of sex, is indeed, as the Portuguese Government submits, one of the fundamental rights enshrined both in the Treaties and in Article 21 of the Charter

After all, it follows from recitals 9, 21, 22 and 29 thereof that that regulation is aimed at bringing uniformity to the conflict-of-laws rules in matters of divorce and legal separation with a view to enhancing legal certainty, predictability and flexibility, while at the same time preventing the risk of forum shopping, in international dissolution proceedings and, therefore, facilitating the free movement of persons within the European Union. ( 99 ) If the operation of the derogation provided for in Article 10 were to depend on an evaluation carried out in the particular case by the competent national courts, the aforementioned general objectives would not be achieved, since the law ultimately applicable would be determined after a case-by-case analysis rather than in a systematic, and therefore certain and predictable, fashion.

In this regard, it is worth recalling that Regulation No usually serves to designate the law applicable to divorces involving an international component in cases where a court in one of the participating Member States is presented with a divorce application, ( 100 ) not an application for the recognition of a divorce decision which has already been given, as has occurred in the present case by dint of the implementation of rules of German law.

To my mind, that issue cannot be resolved by taking the route, suggested by the referring court and the German Government, whereby a specific approach could be adopted ‘at the very least’ where, as in the dispute in the main proceedings, the court is asked to examine the validity of a divorce already pronounced in another State and can therefore cast a retrospective eye on the situation in question. In my view, given the need to interpret that provision of EU law in an objective, general and uniform manner, ( 101 ) it would be unacceptable to have the interpretation of Article 10 of Regulation No change according to whether the matter at hand involves a divorce application, the normal scenario for the application of that regulation, in which it would be sufficient for abstract discrimination to exist, or the recognition of a divorce decision, a scenario in which that regulation applies by virtue of German law and in clic para investigar which actual discrimination must be established.