March 2025 at the Court of Justice of the European Union
This month starts with the publication, on Thursday 6, of the decision in case C-395/23, Anikovi, reported here, on the interpretation of Regulation (EU) 2019/1111 (Brussels II ter Regulation) and its relation to an international treaty between a Member State and a third one. The Sofiyski rayonen sad (Sofia District Court, Bulgaria) referred to the Court of Justice three questions in the frame of non-contentious proceedings brought by two minors of Russian nationality and resident in Germany, acting with the consent of their mother, with a view to obtaining authorisation to sell the shares they hold in three immovable properties located in Bulgaria:
(1) Does the scope of Article 1[(2)](e) of [the Brussels II ter Regulation] cover non-contentious proceedings concerning the granting of permission by a court for the disposal, [for example] a sale, of immovable property or co-ownership shares in immovable property belonging to a child?
(2) Which regulation determines the international jurisdiction of a court of a Member State of the European Union in non-contentious proceedings concerning the granting of permission by a court for the disposal, [for example] a sale, of immovable property or co-ownership shares in immovable property belonging to a child: (i) Article 7(1) of [the Brussels II ter Regulation] – the court for the place where the child is habitually resident – or (ii) Article 4(1)(c) of [the Rome I Regulation] or Article 24(1) of Regulation [No 1215/2012] – the court for the place where the immovable property is situated?
(3) Are the rules of [the Brussels II ter Regulation] on international jurisdiction in matters of parental responsibility derogated from by a bilateral international agreement between a Member State ([the Republic of] Bulgaria) and a third country (the Soviet Union or the Russian Federation) which was concluded before the Member State’s accession to the European Union, if that international agreement is not listed in Chapter VIII [of that regulation]?
AG J. Richard de la Tour delivered his opinion on 28 November 2024. With direct reference in the text to Professors Hélène Gaudemet-Tallon and Marie-Élodie Ancel on the subject of the definition of the term ‘decision’ in Article 2(a) of Regulation No 1215/2012, which considers ‘equivalent’ to the notion under Article 2(1) of the Brussels IIb Regulation, AG de la Tour posits that “a distinction must be drawn between two types of non-contentious judicial measures, namely ‘purely receptive measures’ and ‘non-contentious decisions’ in which the court ‘without having to settle “a dispute between the parties” nevertheless expresses its will”. He therefore concludes the preliminary reference is admissible.
On the merits, he proposes the Court to answer:
[The Brussels II ter Regulation] must be interpreted meaning that in accordance with the first paragraph of Article 351 TFEU, it does not affect the application of a bilateral agreement concluded with a third State by a Member State before the date of its accession to the European Union, under which the court of the Member State in which the property is located has exclusive jurisdiction to rule on an application for authorisation to sell immovable property belonging to a minor who is a national of that third State, where that court gives its ruling having regard to the best interests of the child.
The preliminary reference was assigned to a chamber of five judges (K. Lenaerts, C. Lycourgos, L. Arastey Sahún, S. Rodin, and O. Spineanu-Matei acting as reporting judge)
The publication of the judgment in case C-61/24, Lindenbaumer, is scheduled on Thursday 20. The Bundesgerichtshof (Germany) requests the interpretation of ‘habitual residence’ under the Rome III Regulation on the law applicable to divorce and legal separation. The referring court is seized with divorce proceedings between a spouse of German nationality who moved from Germany, first to Sweden and, two years later, to Russia. In all cases, the move was due to the fact that her husband, a counsellor with diplomatic status, was assigned to the German embassy in those States. While the husband’s application for divorce was dismissed under German law in the first instance, at second instance the divorce was granted on the basis of Russian law, which the court held to be applicable in accordance with Article 8(b) of the Rome III Regulation, because the spouses had a ‘habitual residence’ in Moscow.
The Bundesgerichtshof is asking:
Which criteria should be used to determine where the spouses are habitually resident within the meaning of Article 8(a) and (b) of the Rome III Regulation? In particular: Does a posting as a diplomat affect or even preclude the assumption of habitual residence in the receiving State? Must the physical presence of the spouses in a State be of a certain duration before it can be assumed that habitual residence had been established there? Does the establishment of habitual residence require a certain degree of social and family integration in the State in question?
No opinion was requested. The case will be decided by a chamber of five judges (C. Lycourgos, S. Rodin, N.J. Piçarra, N. Fenger, and O. Spineanu-Matei as reporting judge).
Approaching the end of the month, on March 27, AG M. Campos Sánchez Bordona will deliver his opinion in case C-34/24, Stichting Right to Consumer Justice et Stichting App Stores Claims, reported here, on the occasion of the hearing held last December. The preliminary reference engages the interpretation of Article 7(2) of the Brussels I bis Regulation in relation to venue in proceedings for the defence of collective interests:
– Question 1 (Handlungsort)
In a case such as that at issue in these proceedings, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU took place in a Member State by means of sales through an online platform operated by Apple and aimed at the entire Member State, with Apple Ireland acting as exclusive distributor and commission agent of the developer and deducting commission from the purchase price, what should be considered to be the place where the harmful act occurred within the meaning of Article 7(2) of the Brussels Ia Regulation ? Is it relevant in this regard that the online platform is in principle accessible worldwide?
Does it matter in this context that these proceedings concern claims brought under Article 3:305a BW (the Netherlands Civil Code) by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: ‘arrondissementen’ – districts) within one Member State?
If, on the basis of question 1(a) (and/or 1(b)), not only one but several internal territorially competent courts are designated in the Member State concerned, does Article 7(2) of the Brussels Ia Regulation preclude the application of national (procedural) law that allows referral to a single court within that Member State?’
– Question 2 (Erfolgsort)
Is it possible that, in a case such as that at issue in these proceedings, where the alleged damage occurred as a result of purchases of apps and digital in-app products through an online platform operated by Apple (the App Store), with Apple Ireland acting as exclusive distributor and commission agent for the developers and deducting commission from the purchase price (and where there has been both an alleged abuse of a dominant position within the meaning of Article 102 TFEU and an alleged infringement of the prohibition on restrictive agreements within the meaning of Article 101 TFEU) and where the place where those purchases took place cannot be determined, only the registered office of the user can serve as the connecting factor for the place where the damage occurred within the meaning of Article 7(2) of the Brussels Ia Regulation? Or are there also other connecting factors in this situation which could be applied to identify a competent court?
Does it matter in this context that these proceedings concern claims brought under Article 3:305a BW by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: ‘arrondissementen’ – districts) within a Member State?
If, on the basis of question 2(a) (and/or 2(b)), an internal territorially competent court in the Member State concerned is designated which has jurisdiction only over the claims of some of the users in that Member State, while other territorially competent courts in the same Member State have jurisdiction over the claims of other users, does Article 7(2) of the Brussels Ia Regulation preclude the application of national (procedural) law which allows referral to a single court within that Member State?
The case has been allocated to the Grand Chamber (K. Lenaerts, T. von Danwitz, Biltgen, I. Jarukaitis, L. Arastey Sahún, A. Kumin, N. Jääskinen, I. Ziemele, J. Passer, Z. Csehi, B.M.P. Smulders, M. Condinanzi, F. Schalin, S. Gervasoni, and O. Spineanu-Matei acting as reporting judge).
Finally, on the same day a three-judges chamber (S. Rodin, N.J. Piçarra and O. Spineanu-Matei, again reporting), will hand down the decision in case C-67/24, Amozov, on another request from the Sofiyski rayonen sad (Sofia district court). No opinion has been asked for, and no hearing has taken place in relation to this case.
The referring court is seized of an action brought by a Bulgarian national residing in Bulgaria against three defendants residing in Canada, namely his former wife -a Canadian national-, and his two children -who have dual Bulgarian and Canadian nationality-, all three being maintenance creditors pursuant to a judgment delivered by a Canadian court. The applicant has asked the referring court to modify the maintenance obligations set by said judgment.
The preliminary ruling request focuses on the Maintenance Regulation (Regulation No 4/2009), the interpretation of which is needed to ascertain whether it applies in the present case and, if so, whether it confers jurisdiction on the national court seized :
1. Must recital 15 of [the Maintenance Regulation] be interpreted as allowing national case-law according to which the international jurisdiction of courts examining applications for maintenance payments for persons who are habitually resident in a third State (in this case Canada) is determined pursuant to national law and not the regulation?
2. Must Articles 3 and 8 of [the Maintenance Regulation] be interpreted as allowing national case-law according to which the concept ‘application for maintenance payments’ does not cover an application for a reduction in maintenance payments and Articles 3 to 6 of the regulation apply only to applications for the granting of maintenance payments?
3. Must Article 6 of [the Maintenance Regulation] be interpreted as meaning that the concept ‘common nationality’ also covers cases where one or more parties have dual nationality, or does it only cover cases of completely identical nationalities?
4. Must Article 7 of [the Maintenance Regulation] be interpreted as allowing, where the maintenance debtor makes an application for a reduction in the maintenance payments, that application to be regarded as an ‘exceptional’ case where the maintenance creditor is habitually resident in a third State and has no other connection with the European Union other than his or her nationality?