The CJEU on the Habitual Residence of Diplomatic Agents
Diplomatic agents, consular officers and other persons serving as staff members at a State’s representation abroad mostly move from one State to another throughout their career, sometimes spending no more than a few years, if not months, before they are assigned to a new post at a different location. Their situation illustrates well what the life of a ‘highly mobile’ person may look like.
As with anybody else, the need may arise to determine the habitual residence of such persons. This occurs, inter alia, in connection with divorce proceedings, whenever the habitual residence of one or both spouses serves as a connecting factor under the applicable rules of private international law, as it is the case with the Brussels II ter Regulation, regarding jurisdiction, and the Rome III Regulation as concerns applicable law.
By a ruling given on 20 March 2025 in case C-61/24 (fictitiously renamed Lindenbaumer for ease of reference), the Court of Justice provided clarification as to how Member States’ courts are supposed to deal with the difficulties that can arise in these instances.
The Facts
DL and PQ, both German nationals, lived together in a rented accommodation in Berlin for more than ten years after their marriage. They then moved to Sweden, where they stayed for a couple of years, before moving to Moscow, in 2019, in an accommodation located in the compound of the German Embassy, where PQ worked as an Embassy Counsellor.
With a view to returning to Germany, the spouses kept, however, their accommodation in Berlin. One of their adult children resided there, although some parts of that accommodation were sublet until June 2020.
In January 2020, DL returned to Berlin to undergo surgery and remained there until February 2021. She then returned to Moscow, but finally left Russia in May 2021 and returned to Berlin, whereas PQ continued to live in Moscow.
In July 2021, PQ filed a divorce petition in Germany.
The jurisdiction of German courts was not at issue, as Article 3(b) of the Brussels II bis Regulation (as applicable then) confers jurisdiction over matrimonial proceedings, inter alia, on the courts of the Member State of the common nationality of the spouses.
Rather, the question arose of the applicable law. According to Article 8 of the Rome III Regulation, the law applicable to divorce, absent a choice by the parties, is the law of the State: (a) where the spouses are habitually resident at the time the court is seised; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that (c) of which both spouses are nationals at the time the court is seised; or, failing that (d) where the court is seised.
On appeal, the divorce was deemed to be governed by Russian law, on the ground that the spouses did not have their habitual residence in one and the same State at the time of the petition, and that their last habitual residence was in Russia for the purposes of Article 8(b) of the Rome III Regulation.
The case reached the German Federal Supreme Court. The latter expressed doubts as to whether the interpretation of the concept of ‘habitual residence’ for the purposes of the Rome III Regulation should correspond to that of the same concept in the Brussels II bis Regulation, and wondered whether the posting in a State of one of the spouses as a diplomatic agent, the duration of the spouses’ physical presence in that State and the degree of social and family integration in that State constitute relevant, or even decisive, factors for establishing the spouses’ habitual residence under Article 8(a) and (b) of the Rome III Regulation.
The Court’s Ruling
In its ruling, the Court of Justice began by reiterating that the notion of habitual residence, as used in EU legislation, should not be construed as implying a reference to domestic law, and should rather be interpreted autonomously, taking into account the wording of the provisions that use it, their context and the objectives pursued.
Referring to the concept of habitual residence within the meaning of Article 3(a) of the Brussels II bis Regulation, the Court noted that the notion is characterised, in principle, by two factors: first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place; second, a presence in the Member State concerned that is sufficiently stable.
The same factors, the Court explained, are relevant to determine the habitual residence of the spouses for the purposes of the Rome III Regulation, given the close relationship between the two instruments. Reliance on the above factors ensures in fact the objective of legal certainty and predictability and the necessary flexibility in matrimonial proceedings, while preventing any abuse as regards the choice of the applicable law.
Against this background, the Court’s analysis revolved around three main points.
The Particular Nature of the Activity of Diplomatic Agents
The Court looked, first, at the relevance of the particular status of a diplomatic agent to the determination of the habitual residence of the agent themselves and his or her spouse.
The nature of the activity of a diplomatic agent posted in a foreign State, the Court said, militate, in principle, in favour of the absence of habitual residence of that agent and his or her spouse in that State.
However, although the status of diplomatic agent of one of the spouses is a relevant factor in the examination of the habitual nature of the spouses’ residence in the territory of the receiving State, as regards the assessment of the reasons for their presence in that State and the conditions of their stay, that factor is not in itself decisive for the purpose of precluding recognition of the habitual residence of the person concerned and of the members of his or her family in that State. The determination of the spouses’ habitual residence must in any case be made on the basis of all the factual circumstances specific to the case.
The Duration of the Presence of the Agent and his or her Spouse in the Receiving State
The Court explained that, as regards the criterion of the duration of the physical presence of the spouses in a State, the particular situation of diplomatic agents, by reason of the nature of their duties, and of their family members must be taken into account.
Those persons often retain a close relationship with the sending State to which they regularly travel. Moreover, since diplomatic agents are generally subject to a principle of rotation, the duration of their stay in the receiving State may be perceived as prima facie temporary, even though it may sometimes be of a significant length in practice. In those circumstances, the duration of the spouses’ physical presence in the territory of the receiving State does not, in itself, constitute a decisive factor as to the habitual nature of their residence in that State. It cannot be ruled out, in that regard, that the spouses may be present in that territory for a significant period of time while retaining the centre of their interests in the sending State, to which they regularly travel.
Social integration
The Court stressed that social integration in either the receiving or the sending State is a relevant factor for the purposes of determining the habitual residence of the spouses. That integration is such as to give concrete expression to the subjective element relating to the intention of the parties concerned to establish the habitual centre of their interests in a particular place. Family ties maintained in the sending State or, on the contrary, those created in the receiving State may also be relevant in the context of the analysis of all the factual circumstances specific to the individual case.
The Court’s Conclusion
Based on the foregoing, and having recalled that a person may have his or her habitual residence in only one State at a given time, the Court concluded that Article 8(a) and (b) of the Rome III Regulation must be interpreted as meaning that the status of diplomatic agent of one of the spouses and his or her assignment to a post in the receiving State preclude, in principle, the ‘habitual residence’ of the spouses from being considered to be established in that State. It acknowledged, however, that the position would be different if, following an overall assessment of all the circumstances specific to the case, including, in particular, the duration of the spouses’ physical presence and their social and family integration in that State, it was determined (i) that the spouses intend to establish in that State the habitual centre of their interests and (ii) that there is a sufficiently stable presence in the territory of that State.
Assessment
The judgment in Lindenbaumer provides some welcome clarification as regards the notion of habitual residence, as understood in EU private international law in family matters (and probably beyond), and as regards the evidence on the basis of which the habitual residence of a natural person should be determined in concreto.
In substance, however, as attested by the fact that the Court decided to proceed to judgment without an opinion by the Advocate General, the ruling does not really go beyond an orderly restatement of the Court’s own previous teachings on this topic
Those teachings can be resumed as follows.
First, the term ‘habitual residence’ denotes an autonomous notion of EU law, the specification of which depends on the facts of each individual case. The two assertions are not contradictory. Habitual residence is, as such, a legal notion, and must be construed, in cases falling within the scope of EU rules, against the background of EU law rather than by reference to the domestic law of a given State. That said, like other legal notions, it requires, at the application stage, that one refers to facts, and does so in a manner that leaves a significant margin of appreciation with the interpreter (the court seised of the matter).
In fact, while the abstract notion of habitual residence is shaped by EU law (the habitual residence of a person being where that person has established the centre of his or her interests), the question whether the habitual residence of a person is in State A rather than State B depends entirely, in concreto, by the factual circumstances of the case. In assessing those circumstances, the work of the interpreter is in no way ‘mediated’, let alone restricted, by legal constructs, presumptions and fictions.
Second, in order to determine the habitual residence of a natural person, one must carry out a comprehensive assessment of the pertinent circumstances, weighting each fact against the others. There is no such thing as a predetermined algorithm based on which the habitual residence of a person can be identified ‘mechanically’ in each and every case.
Far for proposing a ‘formula’ valid once and for all, the Court of Justice insists on describing the process through which one can specify the habitual residence of a person. The first stage of the process consists in collecting information about the life of the person concerned: his or her interests, his or her relations, etc. The following and final stage consists in appraising those indicia globally, having regard to their respective weight and their interaction (the actual weight of each element may depend on the way in which it relates to other elements, as it occurs, e.g., where two indicia, considered together, indicate that a place is especially meaningful for the person concerned, whereas the same indicia, taken in isolation would not corroborate that finding). All of this should be done with a view to identifying the ‘centre’ (in the singular) of the person’s interests at the material time.
Finally, although the Court remains nominally attached, in its rulings, to a dualist understanding of habitual residence, suggesting that one should look both at the actual ‘physical presence’ of the person in a State and at the intentions of that persons (i.e., his or her subjective posture towards that State), it is clear that the what is crucial, in determining the habitual residence of a person, is the combination of the two elements. Presence alone is meaningless, as is the person’s sheer intention. What essentially matters is whether the ties of a person with a given State are socially meaningful, which entails an assessment of the quality of those ties, as evidenced by the reasons why that person stays there, returns there, or otherwise cares for what happens there.
In the end, social integration is really all that matters when it comes to identifying the habitual residence of a person. Presence and intention are just the typical signs of social integration. While referring to the two elements may be useful for pedagogic purposes, what is at stake with habitual residence is, ultimately, the determination of the social environment where a person belongs, that is, the place where – having regard to all factors, no matter their objective to subjective nature – the person in question can be considered to be ‘at home’.
Thank you for this very interesting summary and analysis. It is difficult to ascertain how narrowly focussed the Lindenbaumer judgment is – whether it should be taken as a reflection of the particular situation of diplomats, or whether it has wider implications for other mobile professionals (in the divorce PIL context and beyond). The indication that a person may live in a country for more than four years without becoming habitually resident there is noteworthy – and suggests that in EU PIL habitual residence (for adults) is not necessarily about the location of everyday life. (One wonders whether a child in parental responsibility proceedings could ever be considered to have retained their ‘old’ habitual residence in circumstances where they have lived elsewhere for multiple years – it seems very unlikely – and so it might be suggested that adult habitual residence under Brussels II ter and Rome III has a longer-term focus than child habitual residence under Brussels II ter). In a recent JPrIL article https://www.tandfonline.com/doi/full/10.1080/17441048.2025.2479265?src=exp-la I argued that the preceding Case C-501/20 MPA suggested a renewed CJEU focus on the day-to-day life of adults in determining habitual residence (for divorce and maintenance jurisdiction purposes) – but this new CJEU judgment makes me question that. From a common law perspective, there are some echoes in Lindenbaumer of the common law conception of domicile – a person can live abroad for many years but retain their habitual residence in the place where they have roots and family ties and where they always intended to return. Of course, there are still some significant differences – but the two concepts (‘habitual residence’ in EU PIL and common law domicile) seem not to be as far apart as one might traditionally have assumed. Although I may be reading too much into one CJEU judgment dealing with a very specific fact situation.
Thanks, Máire. The situation of diplomats is peculiar in many respects, but diplomats and international civil servants are obviously not the only ones whose habitual residence may prove hard to establish. Celebrities and digital nomads, to name just two, pose their own peculiar challenges here…
The Court of Justice – frustratingly, some may think – is simply unwilling to craft a template based on which one is to assess the weight of the indicia of a person’s habitual residence. My personal view is that the Court is right in doing so. The EU legislator (and the drafters of several Hague conventions, before it) choose to use a notion – habitual residence – whose concretisation depends entirely on an “immediate” appraisal of facts by the court seised, with no room being left for presumptions or other legal considerations that would otherwise guide the interpreter (and make the interpreter’s task lighter).
This approach comes with a price: since facts are all that matters, the determination of a person’s habitual residence cannot be done otherwise than on a case-by-case basis. The stated advantage of this approach is that, this way, we don’t have to care about legal considerations. The obvious disadvantage is that, in “hard” cases, the process is time-consuming and its outcome is hard to predict.
If the shortcomings are felt to overweigh the benefits, then the EU legislator might think of abandoning the current approach and espouse a different one (for the purposes of EU legislation), one relying – for the sake of efficiency and predictability – on legal considerations. This would amount to creating an EU notion of “domicile” in the field of cross-border family law (and the law of persons). Feasible? Yes, in principle. But I’m not at all sure it would be desirable.
Thank you Pietro. To me it feels like the CJEU in Lindenbaumer is using a very different conception of adult habitual residence to that envisaged by Bellet and Goldman in their Explanatory Report on the 1970 Hague Divorce Convention: they sought to minimise any reliance on intention and accepted that a person living intermittently between two countries could have two habitual residences. The CJEU has ruled out any possibility of dual/concurrent habitual residence under the Succession Regulation (in Case C-80/19 EE), under Brussels II bis (in Case C-289/20 IB v FA) and now under Rome III in Lindenbaumer, and this in itself means that the concept can no longer serve as a reflection of the concrete realities of a person’s life. If a person lives between two countries and is equally connected to both, then I think the person should be recognised as having two habitual residences. Of course, this creates difficulties under certain EU PIL instruments which have been drafted on the assumption that a person has a single habitual residence – but I think that the solution to this problem should (ideally) lie in the amendment of the legislation rather than in a reconceptualization of the connecting factor itself. It is also true that habitual residence, if it is defined in terms of stable presence (as it seemed to be in Case C-501/20 MPA), will not always lead to a satisfactory answer, as was arguably the case in Lindenbaumer, but again it seems to me that this calls for refinement of the choice of law rule (eg by the inclusion of an escape clause which allows for the replacement of the law of the habitual residence in an appropriate case) rather than an interpretation of habitual residence which is not reflective of where a person is actually living at the relevant time. Of course, amendment of EU PIL legislation can be very difficult for a host of other reasons – and it may be that Lindenbaumer turns on its own unusual facts – and that MPA, with its focus on daily life, will turn out to be more representative of the CJEU’s general approach – I suppose we will have to wait and see!
It’s a pleasure to exchange with you, Máire!
The Court’s view whereby a natural person may have no more than one habitual residence at a time is, in my opinion, fully persuasive. Habitual residence, as a legal notion, would hardly perform its purpose in full under EU PIL if things were otherwise. Embedded as it is in a legal landscape that builds on proximity and predictability, and aims to minimise conflicts of jurisdiction, habitual residence should be understood, I believe, to mean a single place, a single social environment. Hence the idea that it coincides with the “centre” of a person’s interests: the term itself conveys the idea that, although a person’s interests can manifest themselves in several places, only one such place can be seen as the “centre” of such interests, considered globally.
True, situations exist where the interests of a person are so evenly distributed among two or more places that the identification of the main place (the centre) will end up depending on that place being just slightly more meaningful than the others. To fix the issue, however, one does not necessarily have to work on the notion of habitual residence itself and accept that it can designate multiple places. One can keep the one-place-only udnerstanding of habitual residence and address difficult cases (cases of persons whose interests arise meaningfully in many places) by other means. For instance, Rome III does so, in a way, by enabling the spouses to choose the applicable law (thereby preventing this kind of difficulties from arising) and by providing that a cascade of objective connecting factors applies whenever the spouses have not made such a choice.
Rather, I have a question for you concerning the reference you make to the Bellet and Goldman report. How much weight do you think the report (and indeed the Hague Divorce Convention) should be given when interpreting EU law? I’m asking this because the Hague Divorce Convention refers to habitual residence (in Article 2) for the purposes of defining (some of) the jurisdictional filters to be used to assess whether a divorce is eligible for recognition under the Convention. Of course, Brussels II ter and Rome III use the notion for a completely different reason: direct jurisdiction and applicable law. The latter texts refer to habitual residence to decide issues that call, in principle, for a single, clear answer. The Hague Divorce Convention relies on habitual residence to determine whether the divorce concerned originates in a country that the Contracting States agree to regard as an “acceptable” venue for litigation.
I might be overestimating the difference between direct jurisdiction and conflict-of-laws rules, on the one hand, and indirect jurisdiction, on the other, but I sense that the rules of indirect jurisdiction warrant a lesser degree of univocity than the rules of direct jurisdiction and on the applicable law. If this were the case, then one might accept that in the context of the former rules (and only there) a person can have two or more habitual residences at once.
Thank you Pietro, I would agree with you that the 1970 Hague Divorce Convention does not demand a robust interpretation of habitual residence – and that a relatively loose connection of habitual residence can suffice for the Convention’s objectives (and that concurrent habitual residence is not a problem within this specific framework). I would also accept that a more intense connection of habitual residence is preferable within the context of Rome III (which is why I would suggest an escape clause to cater for circumstances where a connection of habitual residence leads to an inappropriate divorce law). However, I would argue that Art 3 Brussels IIter is more akin to the 1970 Divorce Convention and is reasonably tolerant of a looser connection of habitual residence (and dual habitual residence). Art 3 already accepts concurrent jurisdiction – and the forum actoris provisions ((v) and (vi)) have built-in time stipulations to protect against abuse. Also I would argue that Rome I and II (insofar as they apply to consumers and individual tort victims for example) do not require an intense connection of habitual residence (as I see it a focus on the here-and-now of where a person is living at the relevant time should suffice in these contexts – although I accept that these instruments, as currently drafted, can be intolerant of dual habitual residence).
Ultimately, I think that (relative) certainty and simplicity are important virtues of habitual residence – and these are lost where the connecting factor is decoupled from daily life – and where a person can live in a country for 4 years and 2 months without being considered habitually resident there. That is why I am hoping Lindenbaumer is the exception (due to the involvement of a diplomat living in an embassy compound) and MPA represents the norm (with a primary focus on where a person is living day-to-day).
Thank you for the discussion!