Fifty Shades of (Facebook) Blue – ECJ Renders Decision on Consumer Jurisdiction and Assigned Claims in Case C-498/16 Schrems v Facebook

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford.

Yesterday, the ECJ has rendered its decision in Case C-498/16 Maximilian Schrems v Facebook Ireland Limited. The case will be of interest to many readers of this blog as its facts are not only closely linked to the ECJ’s well-known decision in Case C-362/14 Schrems but also could have come straight out of a conflict-of-laws textbook.

Maximilian Schrems has been litigating against Facebook and the way in which the company uses the personal data of its users since 2011, when he first submitted a range of complaints to the Irish Data Protection Commissioner. In 2013, he submitted another complaint, which ultimately lead to the annulment of the ‘Safe Harbour’ framework between the EU and the US in the aforementioned decision; the proceedings continued with a reformulated version of this complaint and have recently been referred to the ECJ for a second time. Over the course of this litigation, Schrems built a reputation as a privacy activist, publishing two books, giving talks and lectures, and founding a non-profit organisation that uses ‘targeted and strategic litigation’ to enforce privacy and data protection laws across Europe.

The proceedings that gave raise to yesterday’s decision by the ECJ are formally unrelated to the aforementioned litigation. In 2014, Schrems set out to bring a ‘class action’ against Facebook for numerous violations of privacy and data protection laws. For this purpose, 25,000 Facebook users assigned their claims to him. Only eight of these claims, regarding Schrems’ own Facebook account and Facebook ‘page’ as well as the accounts of seven other users from Austria, Germany, and India, formed the object of the present proceedings. The claims were brought at Schrems’ domicile in Vienna, Austria, based on the special head of jurisdiction for consumer contracts in Art 16(1) Brussels I (= Art 18(1) of the recast Regulation).

The proceedings raised two separate questions, which the Austrian Oberster Gerichtshof ultimately referred to the ECJ:

  • Can Schrems still be considered a consumer in the sense of Art 15(1) Brussels I, despite his continued activism and professional interest in the claims?
  • If so, can he also rely on the privilege of Art 16(1) Brussels I regarding claims that have been assigned to him by other consumers who are domiciled in (a) the same EU Member State; (b) another Member State; (c) a non-member State?

Following the Advocate General’s opinion (reported here), the Court answered the first question in the positive (I.) and the second one in the negative (II.). Both answers are testimony to a nuanced interpretation of the special rules of jurisdiction for consumer contracts (III.)

I. The Consumer Exception

According to the ECJ’s well-known decisions in Case C-269/95 Benincasa and Case C-464/01 Gruber, the assessment of whether a party is a ‘consumer’ in the sense of Art 15(1) Brussels I does not depend on their subjective qualities but on the ‘the position of the person concerned in a particular contract’ (Benincasa, [16]), which must have been ‘concluded for the purpose of satisfying an individual’s own needs in terms of private consumption’ (ibid, [17]); where a contract has been concluded for a purpose that is partly private and partly professional, the professional aspect of it must be ‘so slight as to be marginal’ for the contract to still fall under the provision (Gruber, [39]).

In the present case, this definition raised two questions. The Court first had to decide whether the assessment was to be made only at the moment when the contract was originally concluded or whether subsequent changes of circumstances must also be taken into account. It held that

[38] … a user of [a digital social network] may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.

Second, the Court had to decide whether this was the case for Schrems, who had originally entered into a contract with Facebook for private purposes but subsequently developed a professional activity involving litigation against Facebook. According to the Court,

[39] … neither the expertise which [a] person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 [Brussels I].

[40] Indeed, an interpretation of the notion of ‘consumer’ which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. …

Interestingly, the Court put little emphasis on the possible distinction between Schrems’ private Facebook ‘profile’ and his arguably professional Facebook ‘page’ (see [34]–[36]). Instead, it seemed to generally exclude ‘representing the rights and interests of the users’ of a particular service from the range of professional activities that might prevent the contract for this service from being considered a consumer contract. The Court explicitly linked this interpretation to the objective of ensuring a high level of consumer protection in Art 169 TFEU. Thus, its decision might not even have been different had Schrems joined Facebook with the sole aim of enforcing his (and other users’) rights. This way, the Court effectively sidestepped the problems created by the increasingly wide range of uses to which social media and other online platform accounts can be put, which the Advocate General had so colourfully described as ‘fifty shades of (Facebook) blue’ (Opinion, [46]) – and which, for the time being, remain unaddressed.

II. Jurisdiction for Assigned Claims

With regard to using the second alternative of Art 16(1) Brussels I to bring claims that have been assigned to the claimant by other consumers at the claimant’s domicile, the Court held:

[45] The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that provision, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the trader or professional concerned ….

[48] … [T]he assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction …. It follows that the jurisdiction of courts other than those expressly referred to by Regulation No 44/2001 cannot be established through the concentration of several claims in the person of a single applicant. … [A]n assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.

This interpretation seems to align well with earlier decisions by the Court, according to which the special head of jurisdiction in Art 16(1) Brussels I is only available personally to the consumer who is party to the consumer contract in question (Case C-89/91 Shearson Lehman Hutton, [23]; Case C-167/00 Henkel), [33]), and according to which the assignment of a claim does not affect international jurisdiction under the Brussels I Regulation (Case C-352/13 CDC Hydrogene Peroxide, [35]–[36]).

An interesting, and arguably unfortunate, side effect of this restrictive interpretation is that it may even exclude the consolidation of the claims of other Austrian consumers in the same forum, considering that the second alternative of Art 16(1) does not only contain a rule of international jurisdiction but also determines local (internal) jurisdiction. In this regard, the Advocate General argued that an additional forum in which such consumer claims could be brought could be created under national law (Opinion, [117]), a proposition that does not appear easily reconcilable with the clear wording of Art 16(1).

Contrary to the claimant’s press release, though, the fact that a consumer is not allowed to avail him- or herself of the privilege in Art 16(1) Brussels I in order to bring the claims 25,000 other consumers that have been assigned to him at his or her domicile does not mean that company’s can ‘divide and conquer’ and ‘block enforcement of consumer rights’. A claimant is free to rely on the first alternative of Art 16(1) Brussels I (which mirrors Art 2(1)) and bring all claims in the defendant’s Member State of domicile, the procedural law of which will then decide on whether the claims may be consolidated.

III. A Nuanced Approach to the Consumer Exception

What seems to emerge from the decision is a nuanced approach to the special provisions for consumer contracts. The Court applies a rather flexible interpretation to Art 15(1) Brussels I, allowing for changes of circumstances to be taken into account but also distinguishing the enforcement of (consumer) rights from other types of professional activities. At the same time, it interprets the special head of jurisdiction in Art 16(1) restrictively, limiting the privilege to each individual consumer and excluding the possibility of other consumers assigning their claims to one who is domiciled in what may appear as a more favourable forum.

Of course, there may well be strong arguments for the existence of such a possibility, especially in cases where each individual claim is too small to justify litigation but the sum of them is not. But it seems questionable whether Art 16(1) Brussels I would be the right instrument to create such a mechanism of collective redress – and, indeed, whether it should be the Court’s role to implement it.

Sharia law in Greece: Blending European values with Islamic tradition

The Hellenic Republic is the sole EU Member State which provides for the application of Sharia law in its territory for more than a century. A recent amendment is granting Greek Moslems the right to opt-out, and resort to domestic civil law. At the same time, the new law respects the right to opt-in for the application of Sharia law, upon the condition of mutual agreement between the parties.

Law 4511/2018 was enacted on January 15. It contains only one article (the second simply declares that the law will be in force upon publication in the State Gazette), which amends the previous status of Sharia courts in Greece. A new Paragraph (4) is added to Art. 5 Law 1920/1991. By virtue of the new provision, the jurisdiction of the Mufti becomes the exception, whereas (until today) it was the rule for Greek Moslems living in the region of (Western) Thrace. The Mufti has jurisdiction for a vast number of family and succession matters, which are listed under Article 5.2 Law 1920/1991. A prerequisite is that the parties have submitted the above matters to Sharia law.

The new law grants the right to each party to seek Justice before domestic courts, and in accordance with Greek substantive and procedural law. The Mufti may exercise jurisdiction only if both parties file an application for this cause. Once the case is submitted to the Mufti, the jurisdiction of national courts is irrevocably excluded.

In addition, the new law paves the path for a more structured procedure before the Mufti: A drafting Committee will be authorized to prepare a decree, which will shape (for the first time) the Rules and Regulations of the Mufti ‘courts’. Signs of a formalized process are already clearly visible in the new law (Article 4.b).

Inheritance matters are also regulated by the new legislation: In principle they are subjected to Greek law, unless the testator solemnly states before a notary public his wish to submit succession matters to Sharia law. A parallel application of Greek and Sharia law is not permitted. However, revocation of the testator’s declaration is allowed, pursuant to Greek succession law provisions embedded in the Civil Code.

The new law has certainly conflict of laws ramifications too, most notably in light of the recent Sahyouni case of the CJEU. In this respect it is important to underline that all decisions rendered by the Mufti are passing through a hybrid process of domestic exequatur, which is rudimentarily regulated under Article 5.3 Law 1920/1991. Failure to submit the Mufti decisions to domestic courts’ scrutiny, deprives them of res iudicata and enforceability. Hence, EU Member States courts, whenever confronted with a request to recognize or enforce Mufti decisions within their jurisdiction, will always have to examine whether a Greek court has granted full faith and credit to the Mufti’s ruling.

Japanese Supreme Court Renders Decision on Hague Abduction Convention

On December 21, 2017, the Japanese Supreme Court rendered a decision on the Hague Abduction Convention.  The Court upheld a lower court decision in favor of the Japanese mother, even though she  had turned back on her promise to return the kids from a visit to Japan, and even though that same court had earlier issued a return order in favor of the American father. The matter had received international press attention, and even a Congressional subcommittee hearing.

Japan had long refused to join the Hague Convention, and when it did, in 2014, critical observers already expected that courts would find ways to undermine it. Those observers see themselves vindicated.

Colin Jones reports critically on the decision; he has previously written on Japan’s joining the Convention and on reluctance to enforce it. Useful background from the Law Library of Congress is here.

Japanese accession to the Convention has been a frequent scholarly topic, both in Japan and elsewhere. Yuko Nishitani, who had already written about “International Child Abduction in Japan” in (2006) 8 Yearbook of  Private International Law 125-143, and who wrote a long report (in Japanese) for the Japanese Ministry in 2010, provided a brief  analysis in 2011.  Dai Yokomizo discussed the accession in (2012) Revue critique 799; Jun Yokohama did so in the Mélanges van Loon (2013, pp 661-72).  Vol. 57 (2014) of the Japanese Yearbook of International Law contains articles by Tatsuki Nishioka and Takako Tsujisaka, Masayuki Tanamura, Masako Murakami, Martina Erb-Klünemann, and Nigel Vaughan Lowe.  Takeshi Hamano helpfully explains the Japanese reluctance with regard to the Japanese ideology of the family. Outside of Japanese authors, Barbara Stark and Paul Hanley wrote most recently in the United States; the topic is also addressed in several student  notes. The accession was also discussed by Bengt Schwemann (in German) and Francisco Barberán Pelegrín (in Spanish).


Call for Papers: SLS Conflict of Laws Section, King’s College, London, 2022

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, would be delighted to receive abstract submissions from readers, emphasising that there is an option to present virtually on the 8th September, with the 9th September reserved for in-person papers at Kings College, London. They have kindly shared the following call for papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2022 SLS Annual Conference at King’s College London – The links and connections to legal development.

This is a call for papers and panels for the conflict of laws section of the 2022 Society of Legal Scholars Annual Conference to be held at King’s College, from 6th – 9th September.  The conflict of laws section will meet in the second half of the conference on 8th – 9th September and will have four sessions, each lasting 90 minutes.

The Society of Legal Scholars’ 2022 annual conference explores how links and connections both within one legal system and across different legal systems work to influence the development of law.  Legal rules, ideas and concepts develop as a result of diverse influences, both internal and external to any legal system.   Existing studies have identified the importance of legal diffusion and of legal transplants between legal systems as agents of legal change and development.   Similarly, within one legal system the development of a particular subject matter is often undertaken as a result of borrowings or copying from another subject matter within the same legal system.  The importance of links and connections in legal development can be demonstrated in many different ways, including the examination of particular links between people, within institutional and political networks or with bodies in other legal systems. Proposals are invited for papers which consider, broadly or specifically, how links and connections have worked to influence legal development in any area of law.

The 2022 conference will be held in person at King’s College London on Tuesday 6th – Friday 9th September. A new online attendance option will allow delegates the opportunity to attend and to present papers virtually in the sessions held on the 7th and 8th of September, so, for the conflict of laws section, the 8th of September.  When submitting an abstract you must indicate whether you intend to present your paper in person or virtually in the event your proposal is accepted.  It will not be possible for presenters to deliver their paper online on the days which are listed as in person only since the facilities will be unavailable. The organisers anticipate that there may be somewhat greater opportunities to present papers in person. Papers which have been accepted on the basis that they are to be delivered in person cannot later be delivered online.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2022 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 25th March 2022.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

  • speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

  • speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
  • Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
  • The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 17th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm
Dr Bobby Lindsay

Rivista di diritto internazionale privato e processuale (RDIPP) No 4/2021: Abstracts

The fourth issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Antonietta Di Blase, (formerly) Professor at the University “Roma Tre”, Genitorialità della coppia omosessuale e riconoscimento dello status filiationis nell’ordinamento italiano (Same-Sex Couples and Recognition of Parentage in the Italian Legal System) [in Italian]

This paper addresses the recognition of the status of the child when a same-sex couple accesses techniques of assisted reproduction abroad. According to recent European and Italian Constitutional case law, a form of legal recognition in favor of both partners is due when at least one of them is genetically linked to the child, on account of the duty to grant the child’s identity within a family. The need and the legal form of recognition has to be assessed in the light of the interests of the child, which should prevail over national rules limiting the use of medically assisted reproduction.

Luigi Fumagalli, Professor at the University of Milan, Problemi vecchi e nuovi nella cooperazione per l’assunzione delle prove all’estero in materia civile: la rifusione della disciplina nell’Unione europea (Old and New Problems in the Cooperation for the Taking of Evidence Abroad in Civil Matters: The Recasting of the EU Regime) [in Italian]

The analysis of Regulation (EU) 2020/1783 of 25 November 2020 provides an opportunity to review the overall regulatory framework of cooperation in the taking of evidence applicable in the relations between the Member States of the European Union, to underline the elements of novelty or to detect the critical issues that still exist. It shows that the mechanisms envisaged appear to be suitable for achieving the objectives which the uniform framework sets itself: they oblige the authorities of the Member States to cooperate, almost without exception; the instruments by which this is achieved are shown to be capable of allowing, in reasonably short terms and without excessive formalism, the taking, in a manner which is absolutely tolerable for the Member State in which it is carried out, of evidence that can be used in the proceedings for which it is required. The main novelty profile consists in the wide space left to the use of communication technologies for the implementation of judicial assistance mechanisms: they mark the distance with respect to the oldest communication tools and touch each “segment” of the overall activity through which evidence is taken in a State other than that of the trial. However, the framework defined by Regulation 2020/1783 continues to suffer from certain limitations. In the first place, one cannot fail to highlight a series of formal (relating to the Italian version of the text) or conceptual inaccuracies. Alongside this, it should be noted the strong constraints that derive, for the implementation of the assistance procedures brought by the Regulation, from domestic procedural law, which the European legislation has not modified (nor has it intended to modify). Within these limits, the rules laid down appear, however, to take into account the complexity of the procedural mechanisms involved in the implementation of international judicial assistance procedures, and mark a step forward in the integration between the systems, laying the foundations for further developments.

Alberto Malatesta, Professor at the University “Cattaneo LIUC” in Castellanza, Circolazione delle sentenze tra Unione europea e Regno Unito: a favore di una cooperazione in seno alla Conferenza dell’Aja (Circulation of Judgments between the European Union and the United Kingdom: In Support of a Cooperation in the Framework of the Hague Conference) [in Italian]

This essay outlines the various options for a future cooperation between the EU and the UK in the field of recognition and enforcement of judgments in civil and commercial matters. After examining some alternatives, it focuses especially on the 2007 Lugano Convention, which appears to be a good tool for this purpose. However, pursuant to Art. 72(3) of the Convention itself, the EU has recently objected to the UK’s application of accession. The Author explains the reasons why the EU’s position is appropriate from the point of view of the Member States’ interests and upholds the Hague Conference of Private International Law as the best venue where cooperation between the EU and the UK can be strengthened.

The following comments are also featured:

Silvia Marino, Associate Professor at the University of Insubria, La climate change litigation nella prospettiva del diritto internazionale privato e processuale (Climate Change Litigation from the Perspective of Private International and Procedural Law) [in Italian]

The present article tackles the classic private international law issues in the field of climate change litigation. The introduction offers a definition of climate change litigation according to the current case-law. The article then proceeds to investigate international law commitments on climate change and environmental protection, noting that no specific international conventions exist on the subject-matter. Therefore, the EU system within the civil judicial cooperation appears relevant. Against this background, Regulations EU No 1215/2012 and No 864/2007 are examined in the light of the climate change litigation, stressing their potential solutions and problems within this field. In this framework, some recent suggestions and proposals for the improvement of the private international law systems in the human rights’ field are discussed. Finally, the concluding remarks pay due attention to the efficiencies of the current EU system, yearning for a more articulated international cooperation in all the possible involved facets.

Emilia Maria Magrone, Researcher at the University of Bari, Pluralità di fonti per la tutela di un minore straniero presente in Italia e necessità di un loro coordinamento (Plurality of Sources in the Protection of a Foreign Child Present in Italy and Need for Coordination) [in Italian]

This article analyses a decree issued by the Court of Appeal of Bari rejecting the complaint of an Albanian citizen against a previous decree of the Family Tribunal of Bari. The Tribunal had ordered the forfeiture of the woman from parental responsibility towards her young child (an Albanian citizen, as well) and other measures for the protection of the child. The cross-border features of the case have provided the opportunity for highlighting the different regulatory sources likely to be applied in the field of protection of foreign children such as Regulation (EC) No 2201/2003, the 1996 Hague Convention on the protection of children and the Italian rules on jurisdiction and applicable law, and to verify whether the relevant rules relating to both jurisdiction and applicable law have been correctly applied. In this regard, the decree of the Court of Appeal is substantially compliant with the best interests of the child, but raises some perplexities for the failure to ascertain the habitual residence of the child and consequently for having applied the internal rule on tacit acceptance of jurisdiction rather than Article 8 of Regulation No 2201/2003. Another unclear aspect of the Court’s ruling is that it did not specify on the basis of which conflict-of-law rule Italian law was applied.

In addition to the foregoing, in this issue Fausto Pocar, Professor Emeritus at the University of Milan, penned a moving tribute in memoriam of Professor Alegría Borrás.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Andrew DICKINSON, Edwin PEEL (eds), A Conflict of Laws Companion. Essays in Honour of Adrian Briggs, Oxford University Press, Oxford, 2021, pp. XLIX-377.

Opinion of Advocate General Szpunar of 24 February 2022, Case C-501/20 – M P A v L C D N M T, on the concept of ‘habitual residence’ for Regulation (EC) No 2201/2003, Regulation (EC) No 4/2009, and the impact of Article 47 of the EU Charta on Fundamental Rights

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.“