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1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne

Conventions & Instruments

On 1 November 2022, the 2000 Protection of Adults Convention entered into force for Greece. The Convention currently has 14 Contracting Parties. More information is available here.

On 11 November 2022, Malta signed the 2000 Protection of Adults Convention, during the first meeting of the Special Commission on the Practical Operation of the Convention. The Convention will enter into force for Malta further to the deposit of its instrument of ratification, in accordance with Article 53 of the Convention. More information is available here.

On 14 November 2022, Botswana deposited its instrument of accession to the 1980 Child Abduction Convention, 1993 Adoption Convention, and 2007 Child Support Convention. With the accession of Botswana, the Child Abduction Convention now has 103 Contracting Parties. It will enter into force for Botswana on 1 February 2023. For the Adoption Convention, with the accession of Botswana it now has 105 Contracting Parties. The Convention will enter into force for Botswana on 1 March 2023. Finally, following the accession of Botswana 45 States and the European Union are bound by the Child Support Convention. It will enter into force for Botswana on 16 November 2023. More information is available here.

 

Meetings & Events

On 8 November 2022, the HCCH’s Regional Office for Asia and the Pacific hosted the workshop “HCCH Conventions Supporting Transnational Litigation in Civil or Commercial Matters”, in partnership with the Department of Justice of the Government of the Hong Kong SAR. The workshop was held during Hong Kong Legal Week 2022, in celebration of the tenth Anniversary of the Regional Office for Asia and the Pacific. More information is available here.

From 9 to 11 November 2022, the First Meeting of the Special Commission on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague, attended by over 100 participants, in person and via videoconference, representing Contracting Parties, HCCH Members, and Observers. The meeting resulted in the adoption of over 70 Conclusions & Recommendations, which provide guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of this Convention. More information is available here.

 

Vacancies

Applications are now open for the position of Head of Human Resources (part-time, 75% or less). The deadline for the submission of applications is 9 December 2022. 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.

The third edition of Talia Einhorn’s textbook on Private International Law in Israel is out, published by Wolters Kluwer.

This third, wholly updated and expanded edition provides a clear, comprehensive statement and analysis of private international law in Israel. Israel’s private international law (PIL) regime is not codified, nor is it clearly traceable to any one legal system. Most Israeli PIL sources are available in Hebrew only. On many legal matters there is neither legislation nor case law. There are, however, legal principles from which the pertinent rules may be deduced. Consequently, this study does not confine itself to the rules already existing in Israeli PIL, but also establishes rules in areas where such are missing. In the process of establishing PIL rules, Israeli courts are often directed by parties to engage in a comparative study as to how such problems are solved elsewhere, especially in the European Union and in its Member States, in particular England, due to the affinity of Israeli law to English law since the British Mandate, and in the United States. Therefore, this study offers comparative insights regarding the possible options open to Israeli courts when establishing or refining Israeli PIL rules.

Subjects covered include: national and international sources of Israeli PIL; principles of establishing the applicable law; characterization, substance and procedure, ordre public; renvoi, block reference, economic conflict-of-law rules; natural and legal persons; contractual and non-contractual obligations; property law, incl. IP, means of transportation, cultural property and trusts; company law, incl. dual-listed companies and corporate groups; cross-border insolvency proceedings; family law – both religious laws and secular, territorial laws, matters of marriage and divorce, handled by Jewish, Muslim and Christian religious tribunals, the recognition of civil marriage celebrated abroad, reputed spouses, same-sex spouses and transgenders, personal effects of marriage, maintenance obligation between spouses, determination of parenthood, child adoption, child maintenance, custody of minors, guardianship/parental authority, and child abduction; international succession law; international civil procedure – incl. jurisdictional immunities; international jurisdiction; detailed analysis of procedure in international litigation in Israel; proof of foreign law; judicial assistance; recognition and enforcement of foreign judgements; and international arbitration.

For more information, see here.

Depuis plusieurs années, une fois l’an, Lefebvre Dalloz fait paraître un ouvrage de fantaisie ou de culture générale du droit. Après L’analyse juridique des contes de fées, Les nouveaux contes juridiques, Zola et le droit, Institutes de Justinien et Femmes de loi, Lefebvre Dalloz publie cette année, Des hommes Des femmes Nos libertés, véritable voyage au cœur des combats pour nos droits et libertés.

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RWE’s case (seeking huge damages for the impact on its assets following the Dutch coal phase-out) under investor-State dispute settlement (ISDS) continues I understand (I would also suggest it is problematic given the ECT’s fork in the road provisions), while Uniper’s will be dropped as part of its bail-out conditions. Yet this post is about yesterday’s first instance Uniper judgment and RWE judgment in the Dutch courts. I use the Uniper judgment for this post, the RWE judgment is not materially different as to its legal analysis.

Of note is first of all that these judgments are by the ‘commercial’ chamber at the Den Haag court, not an ‘environmental’ chamber. This might be relevant for those wishing to present the judgment as one of a maverick band of environmental crusaders.

RWE and UNIPER’s claims are based on ‘A1P1‘ (Article 1 of the First Protocol to the European Convention on Human Rights) and Article 17 of the Charter of Fundamental Rights of the EU, both of which protect the right to property.

[5.6] the court lays out the benchmarks (translation courtesy of DeepL and double-checked by me):

( a) is there “possession” (property)

( b) is there “interference,” that is, deprivation or regulation of the right to property?

If both these conditions are met, then the following requirements are examined:

( c) is the interference “lawful,” that is, provided for by law;

( d) if so, does the infringement have a legitimate objective that serves to promote the “general interest,” and

( e) if so, is there a “fair balance,” that is, a reasonable balance, between the requirements of the general interest and the protection of the fundamental rights of the individual?

The latter “fair balance test” is not satisfied if there is an individual and excessive burden on the person concerned.

[5.9] the State had argued that uncertain future earnings are not caught by A1P1 however the court [5.10] disagrees. The corporations have a long-term guarantee to use of the site, ia via a long-term lease. That the earnings might potentially not qualify as possessions, does not diminish the qualification of the guaranteed economic interest as ‘property’.

Interference, lawfulness and general interest are established each in one para [5.11 ff] , and did not seem to be the focus of much discussion even by the parties.

Fair balance is discussed extensively [5.14] ff. [5.15.3] the court qualifies the measure as regulatory interference and not de facto expropriation (the latter would have triggered guaranteed compensation rights). Even if electricity generation using coal will be phased-out, after the end of the transition period, Uniper will continue to have use of the site and has indeed already assumed such use in announced coal-free business plans.

The court then discusses the foreseeability at length, concluding [5.16.31] that although the Dutch Government frequently expressed support for modern facilities generating electricity using coal, this was always done with the caveat that that method had to be compatible with the Dutch climate commitments. [5.16.35] the ETS permit defence is dismissed.

[5.17.9] the court, having studies the various scientific reports presented to it, holds that there are most definitely alternative uses for the site. That their profitability is uncertain, is simply also a feature of energy markets as a whole.

[5.18] the court holds that the Dutch coal phase-out does have an effect on reduced CO2 emissions (carbon leakage is not accepted as being of much relevance to that conclusion). For the measure to be considered not the least trade-restrictive, the Dutch State is held to have a wide margin of manoeuvre and it is not established that the State gravely erred in opting for a coal phase-out [5.18.7]. The long transition period is held to substantiate enough room for compensation [5.19.6], again with reference to the volatility of market returns as being part and parcel of energy markets full stop.

Like the Dutch judgments eg in Urgenda, this judgment on protection of property rights viz GHG emission reduction policies, is likely to serve as an international benchmark. It can be appealed, of course.

Geert.

Dutch #RWE #UNIPER coal phase-out judgment is here https://t.co/aJWRCE9H6H
Held ia: phase-out and closure compatible with European Convention, A1P1 #ECHR
Court calls closure foreseeable, transition period testifies to proportionality. https://t.co/qwhU9HZ24j

— Geert Van Calster (@GAVClaw) November 30, 2022

Written by Hans van Loon, former Secretary General of the HCCH and Honorary Professor of the University of Edinburgh Law School

As reported in this blog before (see CSDD and PIL: Some Remarks on the Directive Proposal), the European Commission on 23 February 2022 adopted a proposal for a Directive on corporate sustainability due diligence.

Earlier, at its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability, and this blog reported on this Recommendation too, see GEDIP Recommendation to the European Commission on the private international law aspects of the future EU instrument on corporate due diligence and accountability.

While some of the recommendations proposed by GEDIP last year are reflected in the Draft Directive, the Draft fails to follow up on several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to also invoke, similar to a victim of environmental damage under Article 7 of Regulation 864/2007 (Rome II), the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (i) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (ii) allthese provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

[This post is cross-posted at the EAPIL blog]

 

Funke
Avocate générale Ćapeta : les opérateurs économiques ont le droit de demander qu’une notification RAPEX soit complétée sur le fondement des dispositions du traité relatives à la libre circulation des marchandises

E. D. L. (Motif de refus fondé sur la maladie)
Espace de liberté, sécurité et justice
Selon l’avocat général Campos Sánchez-Bordona, un risque grave pour la santé de la personne dont la remise est demandée peut justifier la suspension d’un mandat d’arrêt européen, mais non le refus pur et simple de son exécution

The 16th edition of the Dicey, Morris & Collins on the Conflict of Laws, edited jointly by Lord Collins of Mapesbury (LLD, FBA) and Jonathan Harris KC (Hon.), has been published by Sweet & Maxwell.

Dicey, Morris & Collins on the Conflict of Laws deals with private international law issues. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, rules and illustrations, with detailed reference to international conventions, legislation and case law, provide a compass for practitioners engaged in cross-border matters.

It is composed of two Volumes and a Companion Volume.

Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 is about specific areas of law, such as family law, property law, succession and trusts, corporations and insolvency and the law of obligations.

Finally, a Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels II bis and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information available here.

Lorsque l’octroi d’une garantie pour un prêt bancaire peut être caractérisé d’aide d’État, la Commission européenne doit satisfaire à ses obligations de diligence et démontrer qu’elle dispose d’éléments d’une certaine fiabilité et cohérence.

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This book by Nazia Yaqub is an addition to the Hart series, in which several books on international child abduction have been published. The author investigates Islamic law, discussing where relevant the history and the different schools, and the specific legal rules of the selected States that have not acceded to the Hague Child Abduction Convention (1980), as well as Morocco, which has acceded. She also examines whether the ratification of the Hague Child Abduction Convention by more States with Islamic legal systems would offer an improvement to the protection of children’s rights. The author analyses the child’s right to have their best interests taken as a primary consideration, the child’s right to be given the opportunity to be heard, and the child’s right to non-discrimination. The analysis places not only Islamic law under scrutiny but also the Hague Convention.

Besides using policy documents and international literature, she has also interviewed persons who were involved in child abductions.

The difficult discussion about the best interests of the child, including the issues that arise in this regard under the Hague Child Abduction Convention and the law in the Islamic States is presented in a nuanced way, keeping to the central theme of children’s rights. The detailed and rigorous analysis explores Islamic law, utilises case studies garnered from the empirical research and the Hague Convention. The book also sets out various models of child participation and shows how this right is only partially respected in Islamic law States and by the Hague Convention. It is argued that a child-centred approach requires separate representation for children.

The book also discusses non-discrimination, considering not only children’s rights but also other human rights instruments, especially concerning the rights of women (and girls). The author does not only consider discrimination to which children are subjected but also discrimination of mothers that directly influence children. This leads to an interesting and important analysis regarding the cultural nature of children’s rights and the reality of the relation nature of children’s rights with their mother/primary carer. Considerable thought is given to the ground for refusal in Article 20 of the Hague Child Abduction Convention. What also emerges through the analysis is the changing gendered dimension of parental abductions and the problematic issue of abduction by primary carers.

Nazia Yaqub is a lecturer in law at Leeds Beckett University, UK.

 

Oct 2022   |   9781509939114   |   304pp   |   Hbk   |    RRP: £85 / $115

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

The Experts’ Group on the Parentage/Surrogacy Project of the Hage Conference on Private International Law (HCCH) has issued its Final Report on The feasibility of one or more private international law instruments on legal parentage  on 1 November 2022.

The conclusions of the report are as follows:

The Group agreed on the desirability of, and urgent need for, further work by the HCCH in the form of a binding PIL instrument on legal parentage in general (a Convention) and a binding PIL instrument on legal parentage established as a result of an ISA specifically (a Protocol).

The conclusions of the Group with respect to the feasibility of some of the key elements of a Convention and a Protocol are set out in boxes throughout (and annexed to) this Report.

The Group concluded on the general feasibility of developing a Convention dealing with the recognition by operation of law of foreign judicial decisions on the establishment and contestation of legal parentage.

The Group also concluded on the general feasibility of rules on recognition by operation of law of legal parentage as a result of an ISA established by judicial decision in a Protocol. Feasibility will depend in particular on how safeguards / standards are addressed.

Owing to the particularly complex and sensitive nature of the topic, the Group noted some key feasibility challenges going forward, which include:

-For a Convention, whether or not to include:
⇒ domestic adoption;
⇒ rules on uniform applicable law for the establishment of legal parentage; and
⇒ rules on public documents.
-For a Protocol, the way to address safeguards / standards.
-For both instruments, scope issues related to legal parentage established as a result of a domestic surrogacy arrangements and / or ART involving a third-party individual (donor) and legal parentage established by domestic adoptions following a surrogacy arrangement.
-Some experts agreed on the feasibility of advancing work on only one instrument, while others did not think that advancing work on one instrument without the other would be feasible.

While different elements to be included in a Convention and / or a Protocol, when taken individually, seemed to be feasible, this assessment might change depending on decisions taken on other elements. For example:

-For some experts, any instrument would only be attractive to States if it also addressed legal parentage established without a judicial decision, given that, in the majority of cases, legal parentage is established by operation of law or following an act. For other experts, this did not seem a key issue and / or those experts questioned the feasibility of agreeing rules on legal parentage without a judicial decision in an instrument.
-Although the Group agreed on the need for safeguards / standards in a possible Protocol, experts had different views as to which safeguards / standards should be included and how they should feature. For many experts, a Protocol would only be feasible if it included uniform safeguards / standards included directly in a Protocol, some of which featuring as conditions for recognition, others as grounds for refusal. For some experts, a Protocol would rather be feasible if it included State-specific safeguards / standards indirectly in a Protocol with a declaration mechanism and grounds for refusal.

The Group finally recommends the establishment of a Working Group to explore the provisions on a possible convention and protocol.

Autriche / Commission
Aide d'État
Construction de nouveaux réacteurs nucléaires : le Tribunal rejette le recours introduit par l’Autriche contestant l’aide à l’investissement hongroise approuvée par la Commission

The International Union of Judicial Officers / Union internationale des huissiers de justice (UIHJ) is the highest representative body of judicial officers in the world. On the occasion of its annual Permanent Council, the Union  celebrated its 70th Anniversary in Paris on November 24, 2022, at the Espace Niemeyer.

A full report of the celebration agenda and activities is available here.

The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features four contributions.

Giovanna Adinolfi, States’ Economic Measures to Counter Cyberattacks: Disentangling their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyberoperations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order. 

Bruno Barel, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784)

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

Pietro Franzina, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation)

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction. 

Michele Grassi, Riconoscimento del rapporto di filiazione omogenitoriale e liberta` di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union)

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights.

La CJUE poursuit la construction d’une jurisprudence protectrice en matière d’éloignement d’un étranger gravement malade. Dans un arrêt rendu par voie préjudicielle, elle a précisé que l’augmentation de la douleur pouvait porter atteinte à l’intégrité physique de la personne ou à sa vie privée, et constituer ainsi un obstacle à tout éloignement.

Sur la boutique Dalloz Code de l’entrée et du séjour des étrangers et du droit d’asile 2023, annoté et commenté Voir la boutique Dalloz

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L’avis conforme de l’autorité environnementale, obligatoire lorsqu’il est envisagé de ne pas recourir à une évaluation environnementale, constitue une garantie suffisante au regard droit de l’Union européenne, selon le Conseil d’État.

Sur la boutique Dalloz Code de l’environnement 2022, annoté & commenté Voir la boutique Dalloz

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Au sens du règlement Bruxelles II bis, un acte de divorce établi par un officier d’état civil, comportant un accord de divorce conclu par les époux et confirmé par ceux-ci devant cet officier, constitue une décision.

Sur la boutique Dalloz Droit de la famille 2023/24 Voir la boutique Dalloz

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The UNCITRAL Model Law on International Commercial Arbitration – A Commentary, authored by Gilles Cuniberti, has just been published by Edward Elgar, part of the Elgar Commentaries in Private International Law series.

This Commentary provides rich and detailed analysis both of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), and of its implementation, including a comparative account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world.

Key features: comparative and thorough analysis of the provisions of the Model Law; consideration of the interpretations of the Model Law adopted by courts, with references to numerous cases from common law jurisdictions (Singapore, Hong Kong, India, Australia, New Zealand, Canada), Germany and Austria, central Europe (Poland, Hungary, Bulgaria), Spain, South Korea and Egypt; insight into variations in the statutory implementation of the Model Law in various jurisdictions across Europe, Asia, the Middle East and Latin and North America, with the most common amendments identified and highlighted; discussion on whether the amendments adopted in Model Law jurisdictions should be persuasive in other Model Law jurisdictions.

Exploring how the Model Law is applied and interpreted in multiple jurisdictions, this practical and exhaustive commentary will be an essential resource for arbitrators and commercial litigators and will also appeal to scholars in the fields of arbitration, international dispute resolution, and international commercial law.

Further information can be found here.

The author of this post is Cristina González Beilfuss (University of Barcelona).

The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.