Case law Developments in PIL

February 2022 at the Court of Justice

Due to the ‘semaine blanche’, February is usually a short month at the Court of Justice. However, several PIL-related activities are worth noting this particular February. They start this Thursday with the judgment in C-20/21, LOT Polish Airlines. A chamber of three judges (Rodin, Bonichot, Spineanu-Matei) will decide on the request by the Regional Court, Frankfurt am Main, addressing jurisdiction under Article 7(1), of the Brussels I bis Regulation:

Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the place of performance, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs, can also be the place of arrival of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation (EC) No 261/2004 arises from the delay of the first leg of the journey and is brought against the operating air carrier of that first leg?

An advocate general’s opinion was deemed not necessary.

A public hearing in case C-646/20, Senatsverwaltung für Inneres und Sport, will take place on Tuesday 8th. The request focuses on Regulation Brussels II bis. The main proceedings concern the question of whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure.

The Bundesgerichtshof is asking the Court of Justice two short, straight-forward questions:

  1. Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?
  2. If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

The reporting judge is M. Safjan, for the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei). After the hearing, Advocate General Collins will announce the date of publication of his opinion.

Two days later (10 February), the Court will hand down the judgment in the case of C-595/20, ShareWood Switzerland, on the interpretation of the Rome I Regulation. The requesting court is the Austrian Oberster Gerichtshof:

Is Article 6(4)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations to be interpreted as meaning that a contract for the purchase of teak and balsa trees between an undertaking and a consumer, which is intended to confer ownership of the trees, which are then managed, harvested and sold for profit, and which includes for that purpose a lease agreement and a service agreement, is to be regarded as ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision?

Once again M. Safjian is the reporting judge, sitting with judges Jääskinen and Gavalec. The preliminary ruling will be taken without opinion.

On the same day, a chamber composed by judges Prechal, Passer, Biltgen, Wahl and Rossi (reporting), will rule on C-522/20, OE. The referring court – the Oberster Gerichtshof, Austria, acting as Court of Cassation in a matter of divorce- has asked the following to the Court in Luxembourg:

  1. Does the sixth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 infringe the prohibition of discrimination in Article 18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003?
  2. If the answer to Question 1 is in the affirmative: Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003, a period of residence of 12 months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6 months’ residence is the precondition for all applicants?

Among other, the applicant submits that under fifth and sixth indents of Article 3[(1)](a) of Regulation No 2201/2003 (Brussels II bis), jurisdiction for divorce proceedings is established for nationals of the forum State after just 6 months’ residence in that State, whereas nationals of other Member States must have been resident for at least 1 year; that this is unequal treatment solely on grounds of nationality and therefore infringes Article 18 TFEU.

No advocate general’s opinion has been asked for.

Finally, on 24 February Advocate General Szpunar will deliver his opinion in the case of C-501/20, M P A, giving us his views on habitual residence, forum necessitatiss and denial of justice in family matters. The request to the Court comes from the Audiencia Provincial of Barcelona; it relates to divorce proceedings of spouses who happen to be employees of the European Commission in its delegation in Togo. At stake are as well the dissolution of the matrimonial property regime, 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 Togo. The interpretation requested affect the Brussels II bis Regulation, Regulation No 4/2009, and Article 47 of the Charter of Fundamental Rights of the European Union.

The questions are:

  1. How is the term ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
  2. If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
  3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?
  4. If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?
  5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
  6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

The case has been entrusted to Judges Prechal, Passer, Biltgen, Wahl, and Rossi (reporting).

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

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