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Habitual Residence in European Private International Law
Bettina Rentsch, Humboldt-University Berlin, has authored book about the concept of “habitual residence” in European private international law (Der gewöhnliche Aufenthalt im System des Europäischen Kollisionsrechts, ISBN 978-3-16-155172-7). Published by Mohr Siebeck, she sheds light on the concept as such and re-frames the ongoing academic debate with a focus on the relationship between habitual residence and party autonomy.
The book is in German, but the author has kindly provided us with the following English language summary:
European PIL has become increasingly heterogeneous in its legal foundations, shape and principles. Still, all so-called “Rome” regulations are homogeneous if not even uniform in their connecting factors: In the absence of Choice, the law applicable will determined by virtue of Habitual Residence. As a general baseline, the pairing of Party Autonomy and Habitual Residence is a common feature of all Rome regulations. While the recent rise of the former anhas given rise to widespread academic discussion, little has been said on why the EU legislator ever came to choose Habitual Residence as its primary “objective” connecting factor. Neither is there clarity on the political backgrounds nor on the secondary question of whether the former is identical in all contexts Habitual Residence is employed in.
In light of the increase of transnational migration in the EU, the present conceptual vagueness of Habitual Residence cannot be tolerated. In fact, there is both a need for reliable proxies in determining Habitual Residence and an urge to assess whether it can and must be understood and applied different in respective areas of EU Private International Law.
This publication undertakes a first, though definitely not final attempt to shape the blurry and vague notion of Habitual Residence in European Private International Law . Its objective is to, first, find overarching and general means and then to determine approproate criteria to previsibly determine the conditions for a cross-referencing between respective fields of application. Within this framework, the book presents two core arguments:
First, the threshold criteria for Habitual Residence are identical no matter its “purpose” and systematic environment. As a result, drawing the line between different instances of Habitual Residence is a question of degree.
Second, Habitual Residence must be interpreted in light of its respective neighboring choice of law-provisions. In other words, the the extent of choice of law possibilities must be understood as a proxy for interpreting Habitual Residence. Hence, the more leeway the European legislator confers to individuals and the more self-regulation through party autonomy he allows for, the less control by authorities can be required. In practical terms, the mere presence and superficial social interaction of a human being can be sufficient to determine Habitual Residence in contractual relations, the visible limitations of choice in areas like successions law indicate legislative intent.
Job Vacancy: Research Assistant (50%) at the University of Bonn, Germany
Professor Dr. Nina Dethloff, Institute for German, European and International Family Law, University of Bonn, Germany, is looking for a research assistant (WissMit) on a part-time basis (50%) as of 1 January 2018 or later.
The candidate should hold a first law degree (as the German First State Exam) and be interested in the international and European dimensions of family law, comparative law and private international law. A very good command of German is required. Knowledge of French and English or other languages is an asset, as are good IT skills.
The fellow will have the opportunity to conduct his or her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50%.
If you are interested, please send your application (cover letter, CV and relevant documents, notably Abitur, university transcripts and law degree) to Professor Dr. Nina Dethloff, LL.M., Institute for German, European and International Family Law, Adenauerallee 8a, 53113 Bonn by 22 December 2017 (Reference number: 76/17/3.13). All applications have to be sent in writing (conventional post or pdf document via e-mail).
Please address all questions regarding your application to Mrs Christiane Stadie (dethloff@uni-bonn.de or +49 (0)228/73-9290).
The University of Bonn is an equal opportunity employer. Thus, the University of Bonn especially encourages highly skilled female applicants to apply for jobs in areas in which they are underrepresented. All applications will be measured by the “Landesgleichstellungsgesetz”.
The full job advert in German is accessible here.
Opinion of Advocate General Bobek on Articles 15 and 16 Regulation No 44/2001 (Schrems, Case C-498/16)
Written by Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.
Today, Advocate General Bobek delivered his opinion in Schrems (Case C-498/16) on the interpretation of Articles 15 and 16 of Regulation No 44/2001.
The Austrian Supreme Court referred two preliminary questions to the CJEU:
(1) Is Article 15 of [Regulation No 44/2001] to be interpreted as meaning that a “consumer” within the meaning of that provision loses that status, if, after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?
(2) Is Article 16 of [Regulation No 44/2001] to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled
(a) in the same Member State,
(b) in another Member State,
or
(c) in a non-member State,
if the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims?
With regard to the first preliminary question, AG Bobek found that
42. (…) the central element upon which consumer status for the purpose of Articles 15 and 16 of Regulation No 44/2001 is to be assessed is the nature and aim of contract to which the claim(s) relate. In complex cases where the nature and aim of a contract is mixed, namely, that it is both private and professional, there must be an assessment of whether the professional ‘content’ can be considered as marginal. If that is indeed the case, consumer status may still be retained. Moreover, it ought not be excluded that in certain exceptional situations, due to the indeterminate content and the potentially long duration of the contract, the status of one of the parties may shift over time.
62. (…) the carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims does not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes.
However, AG Bobek answered the second question in the negative. He argued that
118. (…) on the basis of Article 16(1) of Regulation No 44/2001 a consumer cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other places of the same Member State, in other Member States or in non-member States.
The very interesting opinion can be downloaded here.