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Just released: Lenka Válková on ‘Choice-of-Court Agreements under the EU Regulations in Family and Succession Matters’

A comprehensive and detailed volume by Dr. Lenka Válková was just released providing a dedicated analysis of the private international law framework as it applies to jurisdiction agreements in the framework of the EU Regulations in family and succession matters.

The blurb reads:

Party autonomy has been traditionally considered as one of the leading principles used in cross-border trade law. In fact, choice-of-court agreements have been embedded into the majority of EU Regulations governing civil and commercial matters. On the other hand, mandatory approach to family and succession law slowed down the progress of recognition of party autonomy in these fields. Only in recent years, the trend towards acknowledging choice-of-court agreements has spread into almost all areas of international family and succession law. This publication follows this development: firstly, it analyses the reasons and concerns of the recognition of choice-of-court agreements in civil and commercial matters, whereby it is questioned whether the considerations established in relation to commercial contracts may apply also for personal relationships. Consequently, different treatment of choice-of-court agreements family and succession law, where the freedom to choose the competent court is far from being unlimited, is examined. Accordingly, the attention must be paid to functions of choice-of-court agreements in family law. The second chapter subsequently investigates the position of parties in personal law relations and their protection. In particular, partial and full exclusion of party autonomy, formal and substantive validity, time limits, substantive review and public policy and overriding mandatory rules are considered as tools for protection of vulnerable parties in family and succession law relations when entering into choice-of-court agreements. Finally, last chapter provides for in-depth analysis of rules on choice-of-court agreements under different EU Regulations (the Brussels IIa and Brussels IIter Regulations, Maintenance Regulation, Regulations on Property Regimes and Succession Regulation), where the strengths and gaps of the rules are highlighted. This analysis includes also an attempt to clarify the problem of derogation from jurisdiction in favour of Third States in presence of choice-of-court agreements. Lastly, effectiveness of the rule on lis pendens in stress-tested.

Overall, in her manuscript Dr. Válková successfully combines complex theoretical analysis with concrete propositions in a multifaceted and developing area of the law. Notably, Dr. Válková exemplifies the contribution of party autonomy in private international law in addressing the challenges arising in the context of family relations in the cross-border context: in doing so, she illustrates the complex status quo of party autonomy in this area of the law, its limitations, and how policies may be promoted via private international law. As such, her book is a highly recommended source for academics, notaries, and legal practitioners.

Lenka VÁLKOVÁ, Choice-of-Court Agreements under the EU Regulations in Family and Succession Matters (Wolters Kluwer / CEDAM, 2022), 548 pp., available for purchase here.

This volume is a welcome addition to Wolter Kluwer / CEDAM’s already thriving ‘Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale’ series.

Brussels IIa, habitual residence and forum necessitatis

Even after Brussels IIb‘s coming into force (that we reported on last week), the Court of Justice of the EU issued its judgment in case C-501/20. The case remains relevant, also under the new Regulation. The Court had the opportunity to not only add to its case law on habitual residence, but also to clarify three other matters: first, the Regulation’s and the Maintenance Regulation‘s relation to the Vienna Convention on the Law of Treaties, specifically with regard to diplomatic immunity; second, the Brussels IIa‘s relation to domestic bases of jurisdiction; and third (and related to the second point), the forum necessitatis.

The case concerned the divorce and related disputes between a Spanish national and a Portuguese national. The couple had two children, who had dual Spanish-Portuguese nationality. The family lived first in Guinea-Bissau and later in Togo. The parents were posted at these places as EU delegates of the European Commission. They separated factually while still living in Togo. The mother then brought divorce proceedings, including the issues of parental responsibility and maintenance, in Spain. This court had to decide on its jurisdiction, which raised various issues.

Concerning the habitual residence, which is the first stop to determine jurisdiction (Art. 3 and 8 of Brussels IIa and Art. 3 of the Maintenance Regulation), the Court reiterated the two main factors to determine the habitual residence of adults: “first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, second, a presence which is sufficiently stable in the Member State concerned” (para 44, referring to its case C-289/20 interpreting the Rome III Regulation on the law applicable to divorce proceedings). The Court added that the definition of habitual residence in the Brussels IIa and Maintenance Regulations should be “guided by the same principles and characterised by the same elements” (para 53). (The Court here did not refer to Rome III, but the same is true as we know from previous case law.) Both factors of habitual residence were absent in this case. First, there was no intention to move back to Spain. Second, the parents were physically absent from Spain for this period (except for the birth of the children and periods of leave). Therefore, they could not have been habitually resident in this Member State.

Concerning the habitual residence of the children, the Court referred to the factors in its previous case law, including the duration, regularity, conditions and reasons for the child’s stay, the child’s nationality, school and family and social relationships (para 73). To establish a habitual residence, it is essential that the child is physically present in this Member State (para 75). The mother’s nationality and the pace where she lived prior to her marriage (and prior to the child’s birth) are not relevant (para 76). The child’s nationality and the place where they are born, are relevant but not decisive (para 77).

Any diplomatic immunity cannot change this conclusion, as the Spanish court does not have jurisdiction (paras 61 and following). Even though Recital 14 states that “[t]his Regulation should have effect without prejudice to the application of public international law concerning diplomatic immunities,” this refers to a situation where a court in a EU Member State would have jurisdiction but cannot exercise it due to diplomatic immunity. In short, the existence of diplomatic immunity cannot grant jurisdiction.

The residual jurisdiction under Arts 6 and 7 of Brussels IIa, and specifically the situation that factual scenario that arose in this case, have long caused confusion. The legislator attempted to rectify this in Brussels IIb (Art. 6). The problem was that Art. 6 stated that if a spouse who is habitually resident in or a national of a Member State, may only be sued on the bases of jurisdiction in the Regulation, while Art. 7 referred to domestic bases of jurisdiction where no court in an EU Member State has jurisdiction. So, what is to be done where a spouse is a national of an EU Member State (Portugal in this instance) but there are no available bases of jurisdiction in the Regulation (as neither of the spouses are habitually resident in the EU and they do not have a common EU nationality)? Which provision should prevail? The Court found that Art. 7, and thus domestic bases of jurisdiction, cannot be used in this case; only the residual bases of jurisdiction of the Member State of the defendant’s nationality can come into play (Portugal in this instance). See also the Opinion of Advocate-General Szpunar.

The same contradiction does not exist in the case of jurisdiction over children: Art. 14 simply states that where no court in a Member State has jurisdiction on the basis of the Regulation, domestic jurisdiction rules apply. Thus, Spanish residual bases of jurisdiction could be used concerning the parental responsibility.

The Maintenance Regulation does not have such reference to domestic bases of jurisdiction, but contains a complete harmonisation of jurisdiction, for all situations. It is in this context that there is also a forum necessitatis: if no court in a Member State has jurisdiction and it would be impossible or cannot reasonably expected of the parties to bring the proceedings in the third State to which the dispute is connected, a court in a Member State may, on an exceptional basis, hear the case (Art. 7). The Court explained that this can only come into play if no court in a Member State has jurisdiction, also not on the basis of the link of the case to the status or parental responsibility, and also not on the basis of the choice of the parties (para 101 and following). If this is the case, it is not required that the parties first attempt to institute proceedings in the third State, but the court “cannot rely solely on general circumstances relating to deficiencies in the judicial system of the third State, without analysing the consequences that those circumstances might have for the individual case” (para 112).

Greek court recognizes UK custody order to the non-biological parent in the context of a married same-sex couple

Greece still forms part of the EU Member States group not recognizing same-sex marriage. Same-sex couples do enjoy however some rights. The latest challenging issue concerned custody rights of a same-sex couple married abroad. The Thessaloniki Court of Appeal reversed the first instance ruling, and recognized an English custody order [Thessaloniki CoA, decision published on January 24, 2022, unreported].

FACTS: The appellant (Parent A) is a woman of Greek and American nationality. Her partner was a woman of American national (Parent B). They registered their partnership in the UK on 20 August 2013. Nearly a month later, Parent B gave birth to a child. The partners married in January 2015. Parent A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological (non-biological) mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with Parent A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother. The UK order was issued by the High Court – Family Division in Chelmsford, and it was final. Parent A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Court refused recognition. It entered into an analysis of the public policy defense, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court declared that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece. A detailed presentation of the first instance court reasoning may be found here.

Parent A appealed.

THE DECISION: Unlike the lower instance court, the Thessaloniki CoA primarily underlined the European context of the dispute, citing Articles 21 et seq of the Brussels II bis Regulation. It then referred to a significant number of pertinent provisions, such as: Articles 8, 12 and 14 of the European Convention of Human Rights; articles 23 and 26 of the International Covenant on Civil and Political Rights (ICCPR); articles 7 and 9 of the Charter of Fundamental Rights; the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Greek Civil Union law nr. 4356/2015; article 21 of the Greek Constitution, on the protection of family; directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; and finally, articles 2 and 3 of the United Nations Convention on the Rights of the Child (UNCRC), ratified in Greece by law nr. 2101/1992.

On the grounds of the above references, the CoA found no violation of the Greek public policy, and reversed the ruling of the first instance court. In particular, the CoA emphasized two points:

  • The diversity of views, i.e., the non-recognition of same sex marriage in Greece may not result to the infringement of the child’s best interests, reflected in the UK court findings.
  • The ruling of the first instance court results to the discrimination of children on the grounds of their parents’ sexual orientation.

The battle for full equality is not yet won. A couple of days after the decision of the Thessaloniki CoA was published, the Athens CoA refused recognition to a South African adoption decree issued upon the application of a same-sex (male) couple. Yet again, public policy was the defense hindering recognition. To sum up: Same sex couples may not marry or adopt children in Greece; they may however be appointed as foster parents, and exercise custody rights. Hence, equality evolves in a piecemeal fashion. And last but not least, let us not forget: the Supreme Court has the final word.