Today, Advocate General Maciej Szpunar delivered his Opinion in the above mentioned case on the concept of „habitual residence“ under Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as well as under Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, as well as impacts of Article 47 of the EU Charta on Fundamental Rights in relation to a forum necessitatis as referred to in Article 7 of Regulation No 4/2009. 

Opening by a quote from the General Course of 1986 by Paul Lagarde for the Hague Academy of International Law „ ‘The principle of proximity … is nearest to life and is a title of nobility. It carries with it a lesson in modesty by teaching us that no political will, no judge, however pure his or her intention, can claim jurisdiction, in the long term, to rule according to his or her laws on life relationships that are outside his or her discretion.’, the Opinion results, after careful deliberation, in the following elements for a concept of „habitual residence“:

„1.      The spouses’ status as contract staff of the European Union in a third State is not a decisive factor in determining the place of habitual residence, whether in the meaning of Articles 3 and 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, or Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

2.      It is not possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

3.      With regard to the application for divorce, if the court seised cannot establish its jurisdiction on the basis of Articles 3 to 5 of Regulation No 2201/2003, Article 6 of that regulation then precludes the application of the residual clause contained in Article 7(1) of that regulation and, consequently, the defendant – a national of a Member State – can be sued only before the courts of that Member State.

So far as concerns parental responsibility, if the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation applies regardless of the children’s place of habitual residence and the nationality of the defendant.

4.      Article 7 of Regulation No 4/2009 must be interpreted as meaning that the state of necessity may result from exceptional, very serious or emergency situations such that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Those conditions are met, in particular, when the court of the third State with which the dispute is closely connected refuses to exercise jurisdiction or there are abusive procedural requirements, when, due to civil unrest or natural disasters, it is dangerous to go to certain places and the third State’s normal activity is affected, and, lastly, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing or systemic failures. The parties are not required to demonstrate that they initiated or attempted to initiate proceedings in that State with a negative result.

5.      Articles 7 and 14 of Regulation No 2201/2003, relating to subsidiary jurisdiction in matters of divorce, legal separation or marriage annulment respectively, and Article 7 of Regulation No 4/2009, with regard to the forum necessitatis in matters relating to maintenance, must be interpreted by the court seised in the light of Article 47 of the Charter. National rules on residual jurisdiction, including those relating to the forum necessitatis, must be applied in the light of that same article.“

These findings have emerged from a reference by the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), by judgment of 15 September 2020, in which no less than six rather detailed questions were raised (para.) 26, with a view to the following facts (paras. 17 et seq.):

„17. M P A, a citizen of Spanish nationality, and LC D N M T, a citizen of Portuguese nationality, were married on 25 August 2010 at the Spanish Embassy in Guinea-Bissau. They have two minor children, born on 10 October 2007 and 30 July 2012 in Manresa (Barcelona, Spain). The children have dual Spanish and Portuguese nationality.

18. The spouses lived in Guinea-Bissau from August 2010 to February 2015 and then moved to Lomé (Togo). Following their de facto separation, in July 2018, the applicant in the main proceedings and the children continued to reside in the marital home in Togo and the spouse resided in a hotel in that country.

19.      The spouses are both employed by the European Commission as contract staff of the European Union in its delegation in Togo. The referring court states that contract staff – servants of the European Union in the EU Member States – have the status of diplomatic staff of the European Union only in the country of employment.

20.      On 6 March 2019, the applicant in the main proceedings brought an application before the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa, Spain) for divorce and sought the dissolution of the matrimonial property, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Lomé. She also requested the adoption of interim measures.

21.      The defendant in the main proceedings claimed that the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa) did not have international jurisdiction. By order of 9 September 2019, the court declared that it lacked international jurisdiction to hear the case on the ground that the parties were not habitually resident in Spain.

22.      The applicant in the main proceedings brought an appeal against that decision before the referring court. She claims that both spouses enjoy diplomatic status as accredited servants of the European Union in the country of employment and that this status extends to the minor children.“

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting. A fully-funded position as Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, led by Prof. Dr. Dres. h.c. Burkhard Hess, is open:

   Fixed-term contract for 2 years; contract extension is possible; full-time based in Luxembourg

The successful candidate will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute, in partnership with renowned international academics.

You may apply online until 20 March 2022 by submitting a detailed CV, including a list of publications (if applicable); copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate.

The Max Planck Institute Luxembourg for Procedural Law strives to ensure a workplace that embraces diversity and provides equal opportunities.

Professor Adeline Chong will be speaking on 25 Feb at 12:30
PM – 2:00 PM 9(HKT) on the The Asian Principles for the Recognition and Enforcement of Foreign Judgements.

The portability of foreign judgments across borders helps to faciliate cross-border transactions by lowering transaction costs and associated legal friction among countries. This is important for Asia given initiatives to establish greater economic integration in Asia such as the establishment of the ASEAN Economic Community, the Belt and Road Initiative and free-trade agreements such as the CPTPP and RCEP.

The Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI, 2020) is one of the publications resulting from a project conducted under the auspices of the Asian Business Law Institute (ABLI). The ABLI Foreign Judgments project considered the recognition and enforcement of foreign judgment rules in the ten ASEAN Member States and five of ASEAN’s major trade partners i.e. Australia, China, India, Japan and South Korea. The Asian Principles is a statement of the laws on foreign judgments in the region. It sets out the common principles and differences in the laws and suggests ways in which harmonisation of the foreign judgment rules can occur.

This seminar discusses the Asian Principles and considers the extent to which harmonisation of the foreign judgment rules is possible in the region. Harmonisation would of course increase the portability of judgments across borders. The seminar also examines the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and the likelihood of the Convention being adopted by the Asian countries.

About the speaker:

Adeline Chong is an Associate Professor at the Yong Pung How School of Law, Singapore Management University. She was formerly a lecturer at the School of Law, University of Nottingham. She has published in leading peer-reviewed journals such as the Law Quarterly Review, International and Comparative Law Quarterly, Lloyd’s Maritime and Commercial Law Quarterly and the Journal of Private International Law. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by various courts including the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the UK Law Commission, as well as in leading texts on conflict of laws such as Dicey, Morris and Collins on the Conflict of Laws (15th edition). She has also been invited to present papers by the British Association of Canadian Studies, British Institute of International and Comparative Law, Kyushu University and the University of Sydney. She has conducted courses for the Attorney-General Chambers of Malaysia and delivered Continuing Professional Development Talks for Singapore’s Attorney-General Chamber’s Academy and the Law Society of Singapore. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Register here by 5pm, 24 February 2022 to attend the seminar.