Case law Developments in PIL

November 2021 at the Court of Justice of the European Union

In November 2021 the activity of the Court of Justice in the field of Private International Law appears to be limited to two decisions, both expected on the 25.

The first judgement corresponds to the request for a preliminary ruling from the Paris Court of Appeal in C- 289/20, IB, on Article 3 of Regulation Brussels II bis:

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 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?

AG Campos Sánchez-Bordona’s opinion was published on 8 July 2021. It is not yet available in English. My translation:

Article 3, paragraph 1, letter a), of Council Regulation (EC) No. 2201/2003 (…) must be interpreted in the sense that, for the purposes of the attribution of jurisdiction, only one habitual residence of each spouse can be recognized.

When a spouse shares his life between two or more Member States in such a way that it is not possible, in any way, to identify one of them as that of his habitual residence within the meaning of Article 3 (1) (a) of the Regulation No. 2201/2003, international jurisdiction will have to be determined in accordance with other criteria of the Regulation and, where appropriate, the residuals fora in force in the Member States.

In the same hypothesis, and provided the application of Regulation No. 2201/2003 and the residual fora above-mentioned does not confer international jurisdiction to any Member State, jurisdiction may be exceptionally attributed to the courts of the Member States of a non-habitual residence of a spouse.

The judgement is to be delivered by a chamber of five judges – A. Prechal, J. Passer, F. Biltgen, N. Wahl and S. Rossi, the latter as reporting judge.

The decision on C-25/20, Alpine Bau, corresponds to a request by the Višje sodišče v Ljubljani (Slovenia), on Article 32(2) of the old insolvency regulation:

Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?

Last May, AG Campos Sánchez-Bordona had proposed the following answer:

Article 32(2) of … Regulation (EC) No 1346/2000 … is to be interpreted as meaning that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

The judgement will be delivered by judges K. Jürimäe (acting as juge rapporteur), S. Rodin and N. Piçarra.

Legal Secretary CJEU Full Professor PIL University of Santiago de Compostela (Spain) Senior research fellow MPI Luxembourg (on leave) Usual disclaimer applies