On ‘Habitual Residence’ under the EU Regulations on Family Matters: Once and for All?

What is ‘habitual residence’ for the purposes of the EU regulations on family matters (succession included)? The questions, coupled with the one on how many habitual residences a person may have for the same purposes, is a known source of headaches for the national courts. In the last months, several requests for a preliminary ruling on the issue have been filed with the CJEU originating from different Member States, as if the judges had got into an agreement to ‘corner’ the Court in Luxembourg to try and
get once and for all (?) a helpful answer.

In the E.E. case (C-80/19, judgment of 16 July 2020), the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) asked the CJEU whether, for the purposes of Regulation No 650/2012 (the Succession Regulation), the habitual residence of the deceased can only be one or, on the contrary, a number of places of habitual residence in different States would be admissible. The referring court acknowledged the former to be the likely correct answer, but added ‘that position is not, however, expressly prescribed and there is [therefore] a need for greater clarity and explanation from the Court of Justice in that context’. It was indeed correct. Like the AG, the CJEU elaborated on how to the ‘one and only’ deceased’s habitual residence is to be determined, finding support in the recitals of the Regulation. The decision is reported and commented by Carlos Santaló in this blog.

Some days before the E.E. decision, on 30 June 2020, a request on the meaning of ‘habitual residence’ was lodged (C-289/20, IB), this time in relation to Regulation No 2201/2003 (Brussels II bis) . The question, from the Paris Court of Appeal, reads as follows: ‘Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation No 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?’

The request is not yet available at curia.eu in a language other than French. A short summary would be that the spouses have different views on whether France is the habitual residence of IB (the husband); much of the discussion revolves around his intention to reside there. In this regard, IB explains that he has been carrying out his professional activities in France since 2010 and in a stable and sustainable manner since 15 May 2017; that he moved to Paris, in an apartment belonging to his father; that he leads a social life there, and that it is his wife’s refusal to come and live in France, although she stays there regularly, in the Parisian apartment or in a vacation home acquired in 2017, which led them to lead a parallel daily life. The wife (FA) replies that it was never agreed or envisaged that the family would settle in France; the family’s habitual residence was in Ireland, where the children were brought up; the husband never changed his residence in Ireland but only the address of his place of work. FA argues that the fact that IB has worked and received his income in France for more than six months is insufficient to characterize his habitual residence within the meaning of Article 3 of Regulation No 2201/2003, whereas he has continued to come to Ireland, to the family home, until the end of 2018; he continued to lead the same life there; he previously lived there and he consulted a lawyer in Ireland when the spouses considered, from September 2018, to divorce.

On 15 September 15 2020, the Audiencia Provincial (Court of Appeal) of Barcelona sent a request for a preliminary reference to the CJEU, also on the notion of ‘habitual residence’ of adults in Regulation No 2201/2003; the request is nonetheless broader, encompassing as well the Maintenance Regulation, and further aspects of both EU instruments. The Spanish order was reported in Prof. José Carlos Fernández Rozas’s blog on 25 September 2020, with a link to the official document in Spanish. I found it of big interest and have summarized the factual situation and the questions in English for the EAPIL, while waiting for the case to be given a file number and properly translated.

The litigants were married on 25 August 2010 at the Spanish Embassy in Guinea Bissau (Africa); the wife is a Spanish national, while the husband has Portuguese nationality. Their children have both Spanish and Portuguese nationality. The family resided in Guinea-Bissau from August 2010 until February 2015; they moved then to the Republic of Togo. They separated de facto in July 2018. Mother and children continue to reside in the matrimonial home; the husband moved to a bungalow, in the same country.

Both spouses work for the European Commission at the Delegation in Togo, as contractual agents. According to the evidence submitted contractual agents are granted diplomatic status in the country of destination, whereas in the EU Member States they are considered as EU officials only (NoA: this point seems to be nonetheless contested).

On 6 March 2019, the legal representative of the wife lodged an application for divorce with the Spanish courts. She asked as well for the dissolution of the matrimonial property regime, for the adoption of measures regarding the custody of the children, for maintenance for the children, and for the exclusive use of the family home in Togo. The Spanish Court of First Instance dismissed the application for divorce on the basis of lack of jurisdiction.

The wife appealed against the order before the Audiencia Provincial in Barcelona. The following questions (freely translated by myself) are now before the CJEU:

1)          How should the concept of ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and on Article 3 of Regulation 4/2009 (the Maintenance Regulation) be interpreted in relation to nationals of Member States who remain in a third State by reason of the functions they are entrusted with as contractual agents of the EU, and who, in that third State, are accorded the status of diplomatic agents of the EU due to the fact that their presence there is linked to the exercise of the functions they perform for the Union?

2)          Is the determination of the habitual residence of the minor children of the couple under Article 8 of Regulation No 2201/2003 affected in any way where, for the purposes of Article 3 of Regulation No 2001/2003 and Article 3 of Regulation No 4/2009, the determination of the spouses’ habitual residence is dependent on their status as contractual agents of the European Union in a third State?

3)          Should the minor children be deemed not to have their habitual residence in the third State, can account be taken of the link between the nationality of the mother, her residence in Spain prior to the celebration of the marriage, the Spanish nationality of the minor children and their birth in Spain for the purposes of determining habitual residence under Article 8 of Regulation No 2201/2003?

4)          If it is established that neither the habitual residence of the parents nor that of the children is in a Member State, and given that under Regulation No 2201/2003 no other Member State would be competent to settle the claims, does the fact that the defendant is a national of a Member State preclude the application of the residual rules of jurisdiction under Articles 7 and 14 of Regulation No 2201/2003?

5)          Should it be established that neither the habitual residence of the parents nor that of the minors is in a Member State, for the purposes of determining the maintenance of the children, how is the forum necessitatis rule of Article 7 of Regulation No 4/2009 to be interpreted and, in particular, which elements are needed to establish that proceedings cannot reasonably be filed or carried out in a third country with which the dispute has a close relationship (in this case, Togo)? Is it compulsory, on the other hand, to demonstrate that an attempt at bringing proceedings in that State has been made, with a negative outcome? Moreover, would the nationality of any of the litigants be considered a ‘sufficient connection’ to the Member State (for the purposes of Article 7 of the Maintenance Regulation)?

6)          In a situation like the one at stake, where the spouses have strong ties with Member States (nationality, former residence) would it be contrary to Article 47 of the European Charter of Fundamental Rights to conclude, in application of the rules of the Regulations, that no Member States has jurisdiction to adjudicate?

Clearly the CJEU has a chance to elaborate; good that the national authorities keep on asking.