Before the judicial holiday starting mid July the Court will deliver (as of today) decisions on two private international law cases and hold a hearing on another one.
The first decision is scheduled for on 6 July 2023. It corresponds to case C-462/22, BM, on a request from the German Bundesgerichtshof for a preliminary ruling on the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. The question reads:
Does the waiting period of one year or six months under the fifth and sixth indents, respectively, of Article 3(1)(a) of the [Brussels II bis Regulation] begin to run with respect to the applicant only upon establishment of his or her habitual residence in the Member State of the court seised, or is it sufficient if, at the beginning of the relevant waiting period, the applicant initially has mere de facto residence in the Member State of the court seised, and his or her residence becomes established as habitual residence only subsequently, in the period before the application was made?
The proceedings concern the divorce of an individual of German nationality, and his wife, who is a Polish national. They married in Poland in 2000, and have twin sons born in 2003. The couple moved to Poland in the mid-2000s, into a house in Konstancin-Jeziorna in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw.
The husband was a senior executive of a pharmaceutical manufacturer. Since April 2010, he has been employed as managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. He resided on an occasional basis until the end of 2013 in the Netherlands; he also has a self-contained dwelling in a house occupied by his parents, in Hamm (Germany). He moved out of the house in Poland in June 2012, and since then, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his sick parents. During his stays in Poland, which were always tied in with business trips, he was limited to having contact with his two sons.
On 27 October 2013, the husband filed a divorce application with the Amtsgericht Hamm (District Court, Hamm) submitting that his habitual residence had been there since mid-2012 at the latest.
The wife challenged the international jurisdiction of the German courts claiming that the husband did not move out of the house in Konstancin-Jeziorna until the beginning of April 2013, then lived in the jointly owned dwelling in Warsaw, and resided almost exclusively in the Netherlands or Poland between April and November 2013.
On 19 November 2013, she filed her own divorce application in Poland, with the Sad Okręgowy w Warszawie (Regional Court, Warsaw).
The Amtsgericht Hamm (District Court, Hamm) considered that the German courts lack international jurisdiction, and it dismissed the husband’s application as inadmissible. On appeal, the Oberlandesgericht (Higher Regional Court) held that according to the fifth and sixth indents of Article 3(1)(a) of the Brussels II bis Regulation, an applicant must have already established his or her habitual residence in the Member State of the court six months (or, respectively, one year) before the filing of the divorce application. A mere de facto residence in the Member State of the court is not sufficient for the commencement of the waiting period. The husband contests this interpretation.
L.S. Rossi is reporting judge; the decision will be taken by a chamber of five judges.
The second ruling, in case C-87/22, TT, also concerns the Brussels II bis Regulation. It is scheduled for Thursday 13. The referring court – the Regional Court Korneuburg (Austria) – asks the following:
1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative, must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?
I summarized the facts of the case here. AG P. Pikamäe’s opinion was published in March. No English translation is available. He proposed the Court to answer that (my translation):
1. Article 15 of [the Brussels II bis Regulation] must be interpreted in the sense that, pursuant to Article 15(1)(b) of the Regulation, the court of a Member State, whose jurisdiction to rule on the custody of a minor is based on Article 10 of that Regulation, as the court of the Member State in which that minor had his habitual residence immediately before his wrongful removal, is empowered to request, exceptionally, the court of the Member State to which one of the parents wrongfully transferred the minor and in which he resides with him to exercise jurisdiction, provided it has duly ascertained, in view of the specific circumstances of the case, that the referral meets the three cumulative requirements established in Article 15 (1) of the same Regulation, among which the essential one that the referral responds to the best interests of the minor in question.
2. Article 15(1) of [the Brussels II bis Regulation] must be interpreted in the sense that, on the one hand, the requirements provided for in said provision are exhaustive and, on the other, the existence of a request for the return of a minor filed pursuant to article 8, first and third paragraphs, letter f), of the Convention on civil matters of international child abduction, made in The Hague on October 25, 1980, on which a final resolution has not yet been adopted, does not preclude the applicability of article 15 of said Regulation. However, the existence of such a claim for restitution is a factual circumstance that may be taken into account by the competent court when assessing the requirements, provided for in Article 15 (1), of the aforementioned Regulation, relating to the existence of a court better placed to hear the matter and to respect the best interests of the minor in case of referral to the court of another Member State with which the minor has a special relationship.
L.S. Rossi acts as reporting judge in a chamber of five judges (the same as in case C-462/22).
Finally, a hearing is taking place on Thursday 13 as well, in case C-394/22, Oilchart International, on the Brussels I bis Regulation and insolvency. The ruling has been requested by the Hof van beroep te Antwerpen (Court of Appeal Antwerp, Belgium). The underlying facts are the following. OW Bunker (Netherlands) BV (‘OWB NL’) is one of the companies of the Danish OWB Group. On the instructions of OWB NL, Oilchart International NV appellant supplied fuel to the ocean-going vessel Ms Evita K in the port of Sluiskil (the Netherlands), and issued an invoice which remained unpaid due to the insolvency of OWB NL.
As Oilchart International NV, following the insolvency of OWB NL, had had a number of vessels attached in an effort to obtain payment for the fuel supplied, he had obtained bank guarantees from the ship owners concerned in order to effect a release of that attachment. Those guarantees provided that they could be invoked on the basis of ‘a court ruling or an arbitral award handed down in Belgium against either OWB NL’ or the ship owner.
It is alleged that, prior to the insolvency, ING Bank NV (‘ING’), together with others, had granted a loan. As security, the various entities of the OWB group, including OWB NL, had allegedly assigned their current and future claims on end customers to ING. ING intervened in the proceedings and sought to prohibit the invocation of the bank guarantees or other securities relating to the bunkered vessel before the conclusion of the insolvency proceedings relating to OWB NL.
The court at first instance declared the appellant’s claim against OWB NL inadmissible. With regard to ING’s claim, the court declared that it lacked international jurisdiction. On appeal, the referring court finds that, by not entering an appearance on the first day of the hearing, as was the case at first instance, the respondent OWB NL is deemed to have challenged the court’s international jurisdiction under Article 28(1) of the Brussels I bis Regulation.
The referring court asks:
(a) Must Article 1(2)(b) of the [Brussels I bis Regulation] in conjunction with Article 3(1) of the Insolvency Regulation (Regulation No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’)) and whereby: it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW); it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?
(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?
The case has been allocated to a chamber of five judges, with F. Biltgen as reporting judge. It will be accompanied by an opinion by AG L. Medina.