Conflictoflaws

You are kindly invited to the online conference on “Cross-border portability of refugees’ personal and family status – a plea for better interplay between private international law and migration law” by Prof. Dr. Jinske Verhellen on March 16, 2022, Wednesday between 12.30-13.30 (GMT+3). The conference is organized by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

Biography:
Jinske Verhellen is a Professor of Private International Law and Head of the Institute for Private International Law at the Faculty of Law and Criminology of Ghent University (Belgium). She is a member of the Ghent University Interfaculty Research Group CESSMIR (Centre for the Social Study of Migration and Refugees) and of the Ghent University Human Rights Research Network. She has published on various aspects of private international law, international family law, migration law, and nationality law.
Abstract:
The lecture will address several legal problems encountered by refugees with regard to their personal and family status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). It will focus on the interactions between international refugee law (relating to the rights and obligations of States regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These two sets of rules still operate in very different and even separated universes. The following issues will be covered: specific private international law hurdles that refugees have to take, the concept of personal status (age, parental status, marital status) in international refugee law, and the role of private international law conventions in the international protection of refugees.

This Thursday AG Pikamäe delivered his Opinion in the case LKW Walter, C-7/21. The request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings in which it acted as a defendant.

By this request, the referring court seeks the interpretation of the Brussels I bis Regulation, of the Service Regulation and of the Article 18(1) TFEU (interdiction of discrimination on the grounds of nationality).

 

Legal and factual context

In litigation malpractice actions, a court seized with such action has usually to establish the hypothetical outcome of the litigation within which the malpractice allegedly had place, assuming that it did not happen. Thus, these actions have the potential of giving rise to a so-called “litigation within litigation” scenario.

The particularity of the case LKW Walter, C-17/21, results from the specific object of action brought before the Austrian courts. Here, the alleged malpractice is supposed to result from the negligence that, according to the claimant, have occurred in the proceedings pending before Slovenian courts.

In fact, a decision on enforcement, in Slovenian, adopted in these proceedings, has been served, by post, to the Austrian company. Under Slovenian law, a reasoned objection against such decision on enforcement must be lodged within eight days.

However, the lawyers – now the defendant lawyers – failed to lodge the reasoned objection within the time limit provided for in Slovenian law. It happened within twelve days of service of the decision. Ultimately, the Austrian company settled in full the debt established by the decision on enforcement.

The Austrian company brought the action against its lawyers before the courts of that Member State. Here, the defendant lawyers argue, in particular, that the time limit set by the Slovenian legislator is not compatible with EU law.

Faced with that line of defence, the Austrian court decided to request a preliminary ruling from the Court of Justice. As an outcome, by its preliminary questions, the referring court in the present case seeks the interpretation of EU law in order to benchmark against it the provisions of Slovenian law. That configuration may bring to mind the judgment of the Court in the case Werynski, C-283/09.

 

Preliminary questions

The referring court in the present case asks:

1) Are Articles 36 and 39 of [the Brussels I bis Regulation], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the principles of effectiveness and equivalence [principle of sincere cooperation under Article 4(3) TEU], to be interpreted as precluding a provision of a Member State [under which] an objection [against a decision of enforcement] must be lodged within eight days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within twelve days?

2) Is Article 8 of [the Service Regulation], read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?

3) Is Article 18(1) TFEU to be interpreted as precluding a provision of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?

 

Assessment of the preliminary questions provided for in the Opinion

In his Opinion, AG Pikamäe proposes to the Court to address, in the first place, the second preliminary question on the interpretation of Article 8 of the Service Regulation.

In his view, Article 8(1) and (3) of the Service Regulation, read in conjunction with Article 47 of the Charter, does not preclude a provision of a Member Stater under which the time limit for lodging an objection against a decision embodied in a judicial document served in accordance with Service Regulation begins to run from the time of service of the document in question, and not only after the expiry of the one-week time limit provided for in Article 8(1) for refusing to accept the document (point 56).

As a reminder, Article 8(1) of the Regulation provides that it is possible to refuse to accept the document at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, a language which the addressee understands or the official language of the Member State addressed. The Austrian company, represented by the defendant lawyers, did not exercise such right of refusal after being served with the Slovenian decision on enforcement (see point 99).

 

 

Concerning the first preliminary question, AG debates the admissibility of the question. He considers that the Court should answer it: the question benefits from the presumption of its relevance and the referring court seeks the interpretation of EU law in order to pronounce itself on the line of defence put forward by the defendant lawyers (point 59). I can speculatively imagine that the defendant lawyers could argue that it was not necessary to satisfy the debt established by the decision on enforcement as it was not enforceable in Austria or, in the alternative, it was possible to contest its enforcement in that Member State (and, thus, in the extension of this logic, the Austrian company prematurely settled the debt and/or contributed to the damage it incurred).

In any case, according to AG, the second preliminary question calls for its reformulation. He considers that the referring court in actuality seeks the interpretation of Articles 45(1)(b) and 46 of the Brussels I bis Regulation (ground for refusal of enforcement, based on the improper service of the decision), read in conjunction with Article 47 of the Charter (point 62). In essence, he proposes to consider that these provisions call for a refusal of enforcement of the decision in circumstances such as those of the present case (point 93).

 

Finally, as to the third preliminary question, AG takes that view that Article 18(1) TFEU does not apply to a situation in which the addressee of a judicial document has waived his (her) right to refuse service of that document in accordance with Article 8(1) of the Service Regulation (point 101).

 

The Opinion can be consulted here (no English version yet).

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy of the HCCH met online from 28 February to 4 March 2022, with over 450 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

• El Salvador deposited its instrument of acceptance of the Statute, becoming the 91stMember of the HCCH.
• Ecuador signed the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol and deposited its instrument of ratification of both instruments, which will enter into force on 1 July 2022.
• The United States of America signed the 2019 Judgments Convention, becoming its sixth signatory.

More information on these developments is available here.

 

Other developments

 

Conventions & Instruments

On 1 January 2022, the HCCH 1965 Service Convention entered into force for Georgia. It currently has 79 Contracting Parties. More information is available here.

On 18 February 2022, the Philippines signed the 2007 Child Support Convention. The Convention will enter into force for the Philippines further to the deposit of its instrument of ratification. More information is available here.

 

Meetings & Events

From 11 to 20 January 2022, the International Hague Network of Judges (IHNJ) met via videoconference, with the participation of judges from 35 States. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

On 28 January 2022, the HCCH participated in the panel discussion “Thailand and the HCCH Core Conventions: Connecting Possibility and Approach”, organised by the Ministry of Justice of Thailand.

From 7 to 9 February 2022, the International Transfer of Maintenance Funds Experts’ Group met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 14 to 18 February 2022, the second meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held via videoconference. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Publications and Documentation

On 22 February 2022, the Permanent Bureau launched consultations on the draft Practical Handbook on the Operation of the 2000 Protection of Adults Convention. More information is available here.

On 28 February 2022, the Permanent Bureau announced the publication of the HCCH 2021 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships from July to December 2022. The deadline for the submission of applications is 17 March 2022 (18:00 CET). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

From March 15 to May 19, 2022, as part of the three-year European project called Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, will take place the 2nd edition of the cycle of online seminars on transnational civil and commercial litigation in Europe. Among the novelties of this edition, the participation of professionals from the European Court of Human Rights, the European Central Bank, the World Intellectual Property Organization and the Sabin Center for Climate Change Law, Columbia Law School, New York. The initiative has received the patronage of the Chamber of International Lawyers, the Italian National Council of Notaries, the European Union of Judicial Officers, the Transnational Dispute Management network and the DEuTraDiS Research Center.

Deadline for registration: March 15, 2022.

Here the registration form and the official flyer.

On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.

Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.

1) Publications

This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.

Family law

The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”

The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.

The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.

As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:

“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”

The reasoning of the Experts’ Group was the following:

While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.

Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.

Apostille

The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.

The first edition of the Apostille Handbook is available here.

Access to Justice for international tourists and visitors

The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”

The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.

As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.

At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.

2) Meetings

With regard to future meetings, there are a few meetings in the pipeline:

Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):

• Special Commission on the practical  operation  of  the  2007 Child Support Convention and its Protocol  – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – to be held from 4 to 8 July (online meeting)
• Special Commission on the practical  operation  of  the  2000 Protecion of Adults  Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic

And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.

 

A research seminar on the topic “Hard Legal Problems and Comparative Legal Analysis: The case of parental child abduction in international and Islamic law” is organised by the Aberdeen Centre for Private International Law under the auspices of the Aberdeen Law School Research Seminar Series. The seminar will be delivered by Professor Anver Emon from the Faculty of Law of the University of Toronto, Canada, and will be held on Friday 11 March 2022, 5-6.30 p.m. (UK time), through MS Teams. For more information, click here.

A new series of webinars on the application of the EU Succession Regulation in the Member States will be organised in the framework of the ELI SiG Family and Succession Law. In five webinars of two hours each, representatives of the Member States will talk about their experiences within their respective legal systems.

The organizers state the objectives of the event series as follows (emphasis added):

 

“Join us for the webinar series on the ‘Application of the EU Succession Regulation in the Member States’! 

The five webinars organized within the Special Interest Group on Family and Succession Law of the European Law Institute will take place between March and June 2022 and shall shed light on the actual practice regarding cross border succession cases in the Member States. The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022.

 

Attendance is free of charge. A ZOOM link will be sent to those who register by sending an e-mail to  zivilrecht@uni-graz.at

 

For more information see the program (provided below)!

 

Gregor Christandl        Jens Kleinschmidt       Jan Peter Schmidt

Univeristät Graz                   Universität Trier          Max Planck Institute

 

 

 

PANEL 1 TUESDAY, 15 MARCH, 4-6 pm CET Belgium Patrick Wautelet, Université de Liège Estonia Karin Sein, University of Tartu France Stefan Stade, ArteJURIS Cabinet d’Avocats, Strasbourg Portugal Afonso Patrão, University of Coimbra PANEL 2 TUESDAY, 5 APRIL, 4-6 pm CET Bulgaria Boriana Musseva, University of Sofia Latvia Janis Grasis, Riga Stradins University Malta Paul George Pisani, Notary Public, Victoria The Netherlands Katja Zimmermann, University of Groningen Spain Guillermo Palao Moreno, University of Valencia PANEL 3 TUESDAY, 26 APRIL, 4-6 pm CET Czech Republic Magdalena Pfeiffer, Charles University, Prague Germany Lena Kunz, University of Heidelberg Lithuania Katažyna Bogdzevic, Mykolas Romeris University Poland Anna Wysocka-Bar, Jagiellonian University Romania Daniel Berlingher, Vasile Goldis Western University of Arad PANEL 4 TUESDAY, 31 MAY, 4-6 pm CET Austria Brigitta Lurger, University of Graz Croatia Mirela Župan, University of Osijek Hungary Csongor István Nagy, University of Szeged Slovakia Elena Judova, Matej Bel University Slovenia Jerca Kramberger Škerl, University of Ljubljana PANEL 5 TUESDAY, 21 JUNE, 4-6 pm CET Cyprus Achilles Emilianides, University of Nicosia Finland Tuulikki Mikkola, University of Turku Greece Haris P. Pamboukis, Giorgos Nikolaidis, University of Athens Italy Domenico Damascelli, University of Salento Sweden Michael Bogdan, University of Lund ”

Additional information may be obtained from the accompanying PDF Document.

 

 

 

 

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The seventh EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

In this framework, the EFFORTS International Exchange Seminar was organised and hosted online by the Max Planck Institute Luxembourg on February 25th, 2022: an account of the resulting engaged discussions between academics and practitioners in the field of cross-border enforcement of claims will be given in the Report on practices in a comparative and cross-border perspective, to be published soon on the Project website.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

The Conference represents the final event of the JUDGTRUST Project, funded by the Justice Programme of the European Union. The objective of the Project is to identify best practices and to provide guidelines in the interpretation and application of Regulation 1215/2012 (BI-bis). The JUDGTRUST Project is coordinated by the T.M.C. Asser Instituut and carried out in partnership with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The Conference will host panels on, inter alia, the scope of application, relationship with other instruments, rules on jurisdiction, provisional measures, as well as enforcement and recognition of foreign judgments. Additionally, the key findings from the National Reports of the EU Member States will be presented. It aims to bring together academics, policy makers and legal practitioners. It will take place on 21 – 22 April 2022 at the T.M.C. Asser Instituut, The Hague.

Further information and a link for registration can be found @ T.M.C. Asser Instituut – Events.

Speakers:
Prof. Dr. Markus Tobias Kotzur, University of Hamburg
Dr. Vesna Lazic, Asser Institute, The Hague; Utrecht University
Prof. Dr. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
Mr. David Althoff, International Legal Institute, The Hague
Prof. Dr. Louise Ellen Teitz, Roger Williams University School of Law, Bristol, Rhode Island
Prof. Dr. Wolfgang Hau, Ludwig-Maximilians University of Munich
Prof. Dr. Antonio Leandro, University of Bari
Mr. Michiel de Rooij, Asser Institute, The Hague
Prof. Dr. Javier Carrascosa González, University of Murcia
Prof. Dr. Pietro Franzina, Catholic University of the Sacred Heart in Milan
Prof. Dr. Gilles Cuniberti, University of Luxembourg
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Dr. Mukarrum Ahmed, University of Lancaster
Prof. Dr. Jachin Van Doninck, Free University Brussels
Prof. Dr. Luis de Lima Pinheiro, University of Lisbon
Ms. Lisette Frohn, International Legal Institute, The Hague
Prof. Dr. Beatriz Añoveros Terradas, University of Barcelona
Dr. Pontian Okoli, University of Stirling
Prof. Dr. Francesca Clara Villata, University of Milan

Moderators:
Prof. Dr. Johan Meeusen, University of Antwerp
Prof. Dr. Marta Pertegás Sender, University of Antwerp
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Ms. Lisette Frohn, International Legal Institute, The Hague

Coordinator

JUDGTRUST is coordinated by Vesna Lazic, senior researcher in private international law at the Asser Institute. She is part of the ‘Public interest(s) inside/within international and European institutions and their practices’ research strand. She has published extensively on international trade law, international commercial arbitration, and European private international law.

The EAPIL asked us to share information about their Webinar “What Measures Should the EU Adopt to Enhance the Protection of Adults in Europe?” on 10 March from 17 to 19.00 Central European Time (GMT +1). You can register until 9 March.

This is in response to the European Commission’s public consultation on the need for improved EU cooperation in the field of the protection of adults, in conjunction with the Hague Convention of 2000.

Also of note is that the Hague Conference on Private International Law is in the process of drawing up a practical handbook and has launched its consultation with Member States on the the draft practical handbook.

 

 

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Art. 79 Brussels Ibis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Buli?a 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

• Conference Program
• Application Form

Today, 2 March 2022, the United States of America (USA) signed the HCCH 2019 Judgments Convention. This made the world’s largest economy the sixth signatory state to the new legal instrument, following Uruguay, Costa Rica, Israel and, intricately, Ukraine and the Russian Federation. However, read in conjunction with the recent proposal of the European Commission, the U.S. signature demonstrates the (still) strong interest in a global legal framework for judicial cooperation in the recognition and enforcement of foreign judgments.

Originally posted on the NGPIL website

The NGPIL previously announced a Prize of 300 British Pounds Sterling for the best paper on Nigerian conflict of laws for an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria.

A call for paper commenced in September 2021 with submissions received from participants across various States in Nigeria, entries from undergraduates and postgraduates in law, and early years post-call practitioners.

Following the submission deadline on 10 January 2022, the NGPIL made an assessment that Mr Solomon Adegboyo, an LLM student at the University of Ibadan, emerged winner of the competition.  Mr Adegboyo’s winning entry is titled “Tort in the Conflict of Laws: A Comparative Analysis”. Mr Olawale Adeosun, an LLM student at the University of Lagos, emerged the first runner up. Miss Hope Olajumoke a Nigerian law graduate (1 year post call to the Bar, Ekiti State University) emerged the 2nd runner up.

The response to the call was very encouraging and it is hoped this will be the springboard to encouraging, nurturing, and strengthening the foundations of private international law in Nigeria from earlier stages of academia and practice. This initiative will also assist with targeting areas of improvement such as addressing the lack of materials and resources on conflict of laws in Nigeria.

Huge congratulations to the winner and thank you to our runners-up and other participants!

Yesterday (1 March 2022) the Institute of International Law approved a declaration on the aggression in Ukraine. The declaration is available by clicking the following links:

Declaration of the Institute of International Law on Aggression in Ukraine – 1 March 2022 (EN)-1

Déclaration de l’Institut de Droit international sur l’agression en Ukraine – 1 mars 2022 (FR)

The current developments in Ukraine and the measures and sanctions currently in place have undoubtedly an impact across all areas, including private international law. See for example the measures adopted by the European Union here.

I include an excerpt of the declaration below:

The Institute recalls that the ongoing military operations call ipso facto for the application of international humanitarian law, including the rules relating to occupation, as well as all the other rules applicable in times of armed conflict. It recalls also that persons responsible for international crimes as defined by international law may be prosecuted and sentenced in accordance with the law in force.

Faithful to its mission, the Institute remains convinced that, while international law alone cannot prevent the outbreak of violence, it must remain the compass by which States are guided, and it is more than ever determined to strengthen its work to promote “the progress of international law”. The Institute adds its voice to that of other actors in the international community, including the learned societies acting in defense of the rule of law, who call for an end to the war in Ukraine and the settlement in good faith of disputes between the States concerned through all appropriate means of peaceful settlement.

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. In addition, proficiency in the Dutch, Italian, Spanish, or French language is an advantage. The remuneration will be based on pay group 13 TV-L.

The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by 20 March 2022 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

In Memoriam Prof. Konstantinos D. Kerameus (21.4.1937-26.12.2021)

Professor Kerameus started his academic career at the Law School of the Aristotle University of Thessaloniki, in his home town, and completed his career at the University of Athens. He taught Civil Procedure, Comparative and International Procedural Law in Greek and other leading Universities abroad.

He was awarded Honorary Doctor of Laws by the Universities of Hamburg (1993), Paris II Pantheon-Assas (2000), Liege (2003) and Vienna (2003). He was the President of the International Academy of Comparative Law (1998-2006), Director of the Hellenic Institute of International and Foreign Law (1990-2007), member of the European Academy (since 1994), the International Union of Legal Science (since 1993) and the International Union of Procedural Law (since 1995)y. He represented Greece in the conference on the Lugano Convention, in the negotiations for the accession of Greece to the Brussels Convention, as well as in various committees for the harmonization of the law of contracts, torts and civil procedure in the EU.

His Report, co-authored with Dimitrios Evrigenis, on the accession of Greece in the Brussels Convention (OJ C-298/24-11-1986) has always been a leading guide in the field of European procedural law. The breadth of his interests also covered the work of the Hague Conference. In this context, he gave lectures on the topic of ‘Enforcement in the International Context’– Collected Courses of the Hague Academy of International Law (Volume 264), 1997.

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The 2019 Hague Convention on the Recognition of Foreign Judgments will make it possible for foreign, non-EU, decisions to be recognized under common terms in EU jurisdictions, and vice versa. The presentation of these developments is the main subject of the present issue (Focus).

The introduction (Praefatio) was conducted by the Greek Attorney General to the ECJ, Honorary President of the Council of State, Mr. Athanasios Rantos. The main topic of the issue was the subject of an online conference (3.12.2021), with the participation of experienced professionals on the topic in our country,and of leading foreign scientists, who participated in the works of the 2019 Hague Convention.

The general introduction was assigned to the Director of the Directorate-General for Justice of the European Commission, Dr. Andreas Stein, who participated in the works of the 2019 Convention as the head of the EU delegation.

The Chair of the meeting, Emeritus Professor of the Law School of Thessaloniki Ms. Anastasia Grammatikaki-Alexiou, who has repeatedly represented Greece in the works of the Plenary or Committees of the Hague Conference, and has taught at the  Hague Academy of International Law, outlined ‘[t]he great contribution of the Hague Conference in the field of private international law’.

Directly from the USA, the President of the American Association of Comparative Law, Professor of the Law School at Willamette University, Mr. Symeon Symeonides, who participated in the work of the 2019 Convention as the representative of the Republic of Cyprus, gave his valuable thoughts on the topic. Professor Symeonides presented the theme ‘The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator’, identifying the most interesting points of the Convention and highlighting critical aspects of its text.

Judge Dimitrios Titsias, Justice Counselor, Permanent Representation of Greece to the EU, explored ‘[t]he limits of EU’ s external jurisdiction over the Hague Conventions’. The rest of the panel analyzed the individual provisions of the Hague Conventions, which will be of considerable concern to our courts in the near future. Dr. Ioannis Revolidis, Lecturer of Media, Communications and Technology Law at the University of Malta, discussed the topic of the ‘Recognition and enforcement of international judgments after the revival of the Hague Convention’; Ms. Anastasia Kalantzi, Doctoral Candidate at the Aristotle University of Thessaloniki analyzed the topic ‘Points of convergence and divergence of the Hague Convention of 2005 and Regulation 1215/2012 on issues of extension of jurisdiction’; Dr. Vassilios Sarigiannidis, Head of the competent authority at the Ministry of Justice, presented the issue of ‘The system of cooperation between Central Authorities in the framework of the implementation of the 1980 and 1996 Hague Conventions on the protection of children’.

Among the judgments presented in this issue, a special mention has to be made of the following: the ECJ decision of 18.5.2021, Asocia?ia ‘Forumul Judec?torilor din Rumania’, with a comment by the associate in the International Hellenic University Ms. Raf. Tsertsidou, on the relationship between the regulations on the organization of justice in Romania and the requirements of the rule of law and the independence of the judiciary; the ECJ decision of 9.9.2021, Toplofikatsia Sofia, with a case comment by Judge Mr. Ant.Vathrakokilis; the ECJ decision of 3.9.2020, mBank S.A./PA, with a case comment by Judge Ms. St.-Ag. Kapaktsi.

Concerning national court decisions, it is worth mentioning the 2020 Supreme Court of Cyprus judgment (No 122/13, 143/13), with a case comment by Cypriot jurists Dr. N. Mouttotos, University of Bremen, and Dr. N. Kyriakides, University of Nicosia, regarding the effect of the Directive No 93/13 on consumer contracts in the reversal of the final judgment under national law; the judgment of the Greek Supreme Court No 820/2021, with a note by Dr. Ap. Anthimos and Solicitor (England/Wales) Dr. K. Voulgarakis, on the obstruction of the right to judicial protection by orders of courts of another Member State, which led to the submission of relevant preliminary question to the ECJ, as well as the decision of the Athens First Instance Court No 312/2019, with a case note by Dr. Ch. Meidanis, on the role of the jurisdiction of torts in case of the fall of a Greek warplane in a NATO exercise in Spain.

In the column of Scientific Topics, the volume hosts a study by Dr. G.-A. Georgiadis, on the 10-year anniversary of the 2007 Hague Protocol on the law applicable to maintenance obligations, while the L&F Praxis section presents the main problems of the EAPO, which raise many practical concerns, by Judge Mr. I. Valmantonis.

Bianca Scrabak has recently published an innovative book on international jurisdiction in contract and tort under the Brussels Ia Regulation, in which she develops a comprehensive solution for cases in which Article 7(1) and 7(2) vest special jurisdiction in the courts of more than one Member State.

The different solutions adopted by the CJEU to mitigate the problems resulting from a multiplicity of places of ‘contract performance’ or ‘harmful events’ are well-known. They range from the infamous ‘mosaic approach’ developed in Case C-68/93 Shevill (most recently confirmed in Case C-251/20 Gtflix tv) to a variety of centre-of-gravity approaches (see, eg, Cases C-386/05 Color Drack, C-204/08 Rehder, C-19/09 Wood Floor, and C-352/13 CDC Hydrogen Peroxide) to the unavailability of special jurisdiction (Case C-256/00 Besix). Still, the Court regularly accepts the coexistence of multiple fora with special jurisdiction.

Now, Scrabak argues that this coexistence often violates the ‘principle of concentration of conflicts’, which she derives from Articles 5(2), 8, 21(1), 24, and 29–34 Brussels Ia, as well as the principles of legal certainty and proximity. After a detailed review of the existing case law, she comes to the conclusion that each of the approaches that have so far been applied by the CJEU also conflicts with core principles of the Regulation and fails to provide a unitary solution for both contract and tort cases.

Against this backdrop, Scrabak proposes an approach of ‘limited choices’ for the claimant: as a starting point, based on the wording of the Regulation, any claimant must be free to select any forum that fulfils the requirements of Articles 7(1) or 7(2), without any limitation of its jurisdiction (thus rejecting the mosaic approach); yet, to protect the legitimate interests of the defendant, certain fora must be excluded based on the remote character of their connection to the dispute. More specifically, Scrabak proposes to exclude all fora that can be considered subsidiary both in comparison to the overall tort or contractual obligation and in comparison to other available fora – which appears to require some kind of reverse centre-of-gravity analysis not dissimilar from a forum non conveniens test. While providing a serious alternative to the CJEU’s notoriously unconvincing approach to online torts, it can certainly be debated if this approach provides a better alternative to the answers found by the CJEU in all case. Still, Scrabak’s ‘principle of concentration of conflicts’ offers an interesting new vantage point and useful frame of reference to think about a wide range of seemingly unrelated scenarios.

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, would be delighted to receive abstract submissions from conflictoflaws.net readers, emphasising that there is an option to present virtually on the 8th September, with the 9th September reserved for in-person papers at Kings College, London. They have kindly shared the following call for papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2022 SLS Annual Conference at King’s College London – The links and connections to legal development.

This is a call for papers and panels for the conflict of laws section of the 2022 Society of Legal Scholars Annual Conference to be held at King’s College, from 6th – 9th September.  The conflict of laws section will meet in the second half of the conference on 8th – 9th September and will have four sessions, each lasting 90 minutes.

The Society of Legal Scholars’ 2022 annual conference explores how links and connections both within one legal system and across different legal systems work to influence the development of law.  Legal rules, ideas and concepts develop as a result of diverse influences, both internal and external to any legal system.   Existing studies have identified the importance of legal diffusion and of legal transplants between legal systems as agents of legal change and development.   Similarly, within one legal system the development of a particular subject matter is often undertaken as a result of borrowings or copying from another subject matter within the same legal system.  The importance of links and connections in legal development can be demonstrated in many different ways, including the examination of particular links between people, within institutional and political networks or with bodies in other legal systems. Proposals are invited for papers which consider, broadly or specifically, how links and connections have worked to influence legal development in any area of law.

The 2022 conference will be held in person at King’s College London on Tuesday 6th – Friday 9th September. A new online attendance option will allow delegates the opportunity to attend and to present papers virtually in the sessions held on the 7th and 8th of September, so, for the conflict of laws section, the 8th of September.  When submitting an abstract you must indicate whether you intend to present your paper in person or virtually in the event your proposal is accepted.  It will not be possible for presenters to deliver their paper online on the days which are listed as in person only since the facilities will be unavailable. The organisers anticipate that there may be somewhat greater opportunities to present papers in person. Papers which have been accepted on the basis that they are to be delivered in person cannot later be delivered online.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2022 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 25th March 2022.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/3743/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 17th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm
Dr Bobby Lindsay

 

 

 

The fourth issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Antonietta Di Blase, (formerly) Professor at the University “Roma Tre”, Genitorialità della coppia omosessuale e riconoscimento dello status filiationis nell’ordinamento italiano (Same-Sex Couples and Recognition of Parentage in the Italian Legal System) [in Italian]

This paper addresses the recognition of the status of the child when a same-sex couple accesses techniques of assisted reproduction abroad. According to recent European and Italian Constitutional case law, a form of legal recognition in favor of both partners is due when at least one of them is genetically linked to the child, on account of the duty to grant the child’s identity within a family. The need and the legal form of recognition has to be assessed in the light of the interests of the child, which should prevail over national rules limiting the use of medically assisted reproduction.

Luigi Fumagalli, Professor at the University of Milan, Problemi vecchi e nuovi nella cooperazione per l’assunzione delle prove all’estero in materia civile: la rifusione della disciplina nell’Unione europea (Old and New Problems in the Cooperation for the Taking of Evidence Abroad in Civil Matters: The Recasting of the EU Regime) [in Italian]

The analysis of Regulation (EU) 2020/1783 of 25 November 2020 provides an opportunity to review the overall regulatory framework of cooperation in the taking of evidence applicable in the relations between the Member States of the European Union, to underline the elements of novelty or to detect the critical issues that still exist. It shows that the mechanisms envisaged appear to be suitable for achieving the objectives which the uniform framework sets itself: they oblige the authorities of the Member States to cooperate, almost without exception; the instruments by which this is achieved are shown to be capable of allowing, in reasonably short terms and without excessive formalism, the taking, in a manner which is absolutely tolerable for the Member State in which it is carried out, of evidence that can be used in the proceedings for which it is required. The main novelty profile consists in the wide space left to the use of communication technologies for the implementation of judicial assistance mechanisms: they mark the distance with respect to the oldest communication tools and touch each “segment” of the overall activity through which evidence is taken in a State other than that of the trial. However, the framework defined by Regulation 2020/1783 continues to suffer from certain limitations. In the first place, one cannot fail to highlight a series of formal (relating to the Italian version of the text) or conceptual inaccuracies. Alongside this, it should be noted the strong constraints that derive, for the implementation of the assistance procedures brought by the Regulation, from domestic procedural law, which the European legislation has not modified (nor has it intended to modify). Within these limits, the rules laid down appear, however, to take into account the complexity of the procedural mechanisms involved in the implementation of international judicial assistance procedures, and mark a step forward in the integration between the systems, laying the foundations for further developments.

Alberto Malatesta, Professor at the University “Cattaneo LIUC” in Castellanza, Circolazione delle sentenze tra Unione europea e Regno Unito: a favore di una cooperazione in seno alla Conferenza dell’Aja (Circulation of Judgments between the European Union and the United Kingdom: In Support of a Cooperation in the Framework of the Hague Conference) [in Italian]

This essay outlines the various options for a future cooperation between the EU and the UK in the field of recognition and enforcement of judgments in civil and commercial matters. After examining some alternatives, it focuses especially on the 2007 Lugano Convention, which appears to be a good tool for this purpose. However, pursuant to Art. 72(3) of the Convention itself, the EU has recently objected to the UK’s application of accession. The Author explains the reasons why the EU’s position is appropriate from the point of view of the Member States’ interests and upholds the Hague Conference of Private International Law as the best venue where cooperation between the EU and the UK can be strengthened.

The following comments are also featured:

Silvia Marino, Associate Professor at the University of Insubria, La climate change litigation nella prospettiva del diritto internazionale privato e processuale (Climate Change Litigation from the Perspective of Private International and Procedural Law) [in Italian]

The present article tackles the classic private international law issues in the field of climate change litigation. The introduction offers a definition of climate change litigation according to the current case-law. The article then proceeds to investigate international law commitments on climate change and environmental protection, noting that no specific international conventions exist on the subject-matter. Therefore, the EU system within the civil judicial cooperation appears relevant. Against this background, Regulations EU No 1215/2012 and No 864/2007 are examined in the light of the climate change litigation, stressing their potential solutions and problems within this field. In this framework, some recent suggestions and proposals for the improvement of the private international law systems in the human rights’ field are discussed. Finally, the concluding remarks pay due attention to the efficiencies of the current EU system, yearning for a more articulated international cooperation in all the possible involved facets.

Emilia Maria Magrone, Researcher at the University of Bari, Pluralità di fonti per la tutela di un minore straniero presente in Italia e necessità di un loro coordinamento (Plurality of Sources in the Protection of a Foreign Child Present in Italy and Need for Coordination) [in Italian]

This article analyses a decree issued by the Court of Appeal of Bari rejecting the complaint of an Albanian citizen against a previous decree of the Family Tribunal of Bari. The Tribunal had ordered the forfeiture of the woman from parental responsibility towards her young child (an Albanian citizen, as well) and other measures for the protection of the child. The cross-border features of the case have provided the opportunity for highlighting the different regulatory sources likely to be applied in the field of protection of foreign children such as Regulation (EC) No 2201/2003, the 1996 Hague Convention on the protection of children and the Italian rules on jurisdiction and applicable law, and to verify whether the relevant rules relating to both jurisdiction and applicable law have been correctly applied. In this regard, the decree of the Court of Appeal is substantially compliant with the best interests of the child, but raises some perplexities for the failure to ascertain the habitual residence of the child and consequently for having applied the internal rule on tacit acceptance of jurisdiction rather than Article 8 of Regulation No 2201/2003. Another unclear aspect of the Court’s ruling is that it did not specify on the basis of which conflict-of-law rule Italian law was applied.

In addition to the foregoing, in this issue Fausto Pocar, Professor Emeritus at the University of Milan, penned a moving tribute in memoriam of Professor Alegría Borrás.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Andrew DICKINSON, Edwin PEEL (eds), A Conflict of Laws Companion. Essays in Honour of Adrian Briggs, Oxford University Press, Oxford, 2021, pp. XLIX-377.

Today, Advocate General Maciej Szpunar delivered his Opinion in the above mentioned case on the concept of „habitual residence“ under Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as well as under Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, as well as impacts of Article 47 of the EU Charta on Fundamental Rights in relation to a forum necessitatis as referred to in Article 7 of Regulation No 4/2009. 

Opening by a quote from the General Course of 1986 by Paul Lagarde for the Hague Academy of International Law „ ‘The principle of proximity … is nearest to life and is a title of nobility. It carries with it a lesson in modesty by teaching us that no political will, no judge, however pure his or her intention, can claim jurisdiction, in the long term, to rule according to his or her laws on life relationships that are outside his or her discretion.’, the Opinion results, after careful deliberation, in the following elements for a concept of „habitual residence“:

„1.      The spouses’ status as contract staff of the European Union in a third State is not a decisive factor in determining the place of habitual residence, whether in the meaning of Articles 3 and 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, or Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

2.      It is not possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

3.      With regard to the application for divorce, if the court seised cannot establish its jurisdiction on the basis of Articles 3 to 5 of Regulation No 2201/2003, Article 6 of that regulation then precludes the application of the residual clause contained in Article 7(1) of that regulation and, consequently, the defendant – a national of a Member State – can be sued only before the courts of that Member State.

So far as concerns parental responsibility, if the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation applies regardless of the children’s place of habitual residence and the nationality of the defendant.

4.      Article 7 of Regulation No 4/2009 must be interpreted as meaning that the state of necessity may result from exceptional, very serious or emergency situations such that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Those conditions are met, in particular, when the court of the third State with which the dispute is closely connected refuses to exercise jurisdiction or there are abusive procedural requirements, when, due to civil unrest or natural disasters, it is dangerous to go to certain places and the third State’s normal activity is affected, and, lastly, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing or systemic failures. The parties are not required to demonstrate that they initiated or attempted to initiate proceedings in that State with a negative result.

5.      Articles 7 and 14 of Regulation No 2201/2003, relating to subsidiary jurisdiction in matters of divorce, legal separation or marriage annulment respectively, and Article 7 of Regulation No 4/2009, with regard to the forum necessitatis in matters relating to maintenance, must be interpreted by the court seised in the light of Article 47 of the Charter. National rules on residual jurisdiction, including those relating to the forum necessitatis, must be applied in the light of that same article.“

These findings have emerged from a reference by the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), by judgment of 15 September 2020, in which no less than six rather detailed questions were raised (para.) 26, with a view to the following facts (paras. 17 et seq.):

„17. M P A, a citizen of Spanish nationality, and LC D N M T, a citizen of Portuguese nationality, were married on 25 August 2010 at the Spanish Embassy in Guinea-Bissau. They have two minor children, born on 10 October 2007 and 30 July 2012 in Manresa (Barcelona, Spain). The children have dual Spanish and Portuguese nationality.

18. The spouses lived in Guinea-Bissau from August 2010 to February 2015 and then moved to Lomé (Togo). Following their de facto separation, in July 2018, the applicant in the main proceedings and the children continued to reside in the marital home in Togo and the spouse resided in a hotel in that country.

19.      The spouses are both employed by the European Commission as contract staff of the European Union in its delegation in Togo. The referring court states that contract staff – servants of the European Union in the EU Member States – have the status of diplomatic staff of the European Union only in the country of employment.

20.      On 6 March 2019, the applicant in the main proceedings brought an application before the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa, Spain) for divorce and sought the dissolution of the matrimonial property, 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 Lomé. She also requested the adoption of interim measures.

21.      The defendant in the main proceedings claimed that the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa) did not have international jurisdiction. By order of 9 September 2019, the court declared that it lacked international jurisdiction to hear the case on the ground that the parties were not habitually resident in Spain.

22.      The applicant in the main proceedings brought an appeal against that decision before the referring court. She claims that both spouses enjoy diplomatic status as accredited servants of the European Union in the country of employment and that this status extends to the minor children.“