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On 26 March 2020, advocate general Tanchev delivered his Opinion on the JE case (case C-249/19) – the first case to be decided by the CJEU on the Rome III Regulation on the law applicable to divorce and legal separation (Regulation 1259/2010).

At stake is the interpretation of Article 10 of the Regulation, according to which, ‘Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply.’

The question for a preliminary ruling, from the Regional Court of Bucharest, revolves around the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce.

The referring court asks whether that should be interpreted

(a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or

(b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?

THE FACTS OF THE CASE

JE and KF married in Romania, on 2 September 2001. Fifteen years later, JE brought an action for divorce, also in Romania. By civil judgment of 20 February 2018, the national court established the general jurisdiction of the Romanian courts and established that the law applicable to the dispute was Italian law, pursuant to Article 8(a) of Regulation No 1259/2010, since — on the date on which the court was seized of the divorce petition — the parties were habitually resident in Italy (the parties have resided in Italy for a considerable time).

According with Italian law, a divorce petition such as the one brought by JE can be applied for only where there has been a legal separation of the spouses established or ordered by a court and at least three years have passed between the legal separation and the time at which the court was seized of the divorce petition (the statement, in reality, does not accurately describe the Italian legislation on divorce, as reformed: in 2015, a bill was passed which reduced the three-year period to a one-year period, adding that six months suffice in particular circumstances; arguably, however, the change does not affect the substance of the AG’s reasoning).

Since it had not been demonstrated that a court decision had been made to effect a legal separation of the parties and since Romanian law makes no provision for legal separation proceedings, the court ruled that those proceedings had to be conducted before the Italian courts and, accordingly, any application to that effect made before the Romanian courts was inadmissible.

THE PROPOSAL AND ITS REASONING

The Opinion submits that Article 10 of Regulation No 1259/2010 must be interpreted strictly: the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ therein relates only to situations in which the applicable foreign law does not foresee divorce under any form.

AG elaborates his proposal in a classical, orthodox way. First, he examines the wording and the scheme of the provision. The law of the forum only applies ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’; the wording ‘makes no provision for divorce’ cannot mean that the applicable law ‘provides for divorce under certain (substantive or procedural) conditions’. AG explains that the provision is a consequence of the universal application of the Union conflict-of-law rules in relation to divorce and legal separation, in accordance with Article 4 of the same regulation. He acknowledges that Article 10 of Regulation No 1259/2010 endorses favor divortii, but with limits. In particular, it does not cover a case where the marriage cannot be ended because certain prerequisites are not met: for instance, where the applicable law sets out restrictive grounds for divorce such as the requirement of a long(er) period of separation.

To back his opinion, AG seeks additional support in systemic arguments, which he derives from Article 13 and Recital 26. Article 13 of Regulation No 1259/2010 provides that nothing in that regulation shall oblige the courts of a participating Member State whose law does not provide for divorce to pronounce a divorce. According to Recital 26, ‘where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not provide for divorce, this should be interpreted to mean that the law of this Member State does not have the institut[ion] of divorce’. AG posits that the Recital gives an explanation beyond the specific context of Article 13 on the interpretation of the expression ‘makes no provision for divorce’- hence, it also applies to Article 10, which employs the same expression.

The historical interpretation supports as well the construction of the provision proposed in the present Opinion. AG recalls that the first alternative contained in Article 10 was introduced above all with a view to Maltese law, which, at the time of drafting of the Regulation, did not provide for the granting of any divorce.

The spirit and purpose of Article 10 speak equally in favor of a strict interpretation. Through the adoption of common rules on conflict-of-laws, the participating Member States accepted the principle that their courts could be obliged to apply foreign law despite differences which this might present vis-à-vis their own national law; they also accepted limited exceptions to that principle. Article 10 is one of them: like all exceptions, it must be interpreted strictly. Moreover, an extensive interpretation would frustrate the spouses’ autonomy in relation to divorce and to legal separation (foreseen under Article 5 of the regulation), and prevent the application (pursuant to Article 8 of the regulation, in the absence of a choice by the parties) of the law which is most closely linked to them.

CONSEQUENCES OF THE ANSWER

In addition to giving advice to the CJEU, AG Tanchev suggests how it could provide guidance on the consequences of the proposed answer to the preliminary question. In this regard, following the Commission, AG proposes that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances –like in the case at hand- where the procedural law of the forum does not allow for those procedural conditions to be met.

No doubt AG’s intention is to be praised. At the same time, and because the problem the Romanian court is facing can be characterized as pertaining to procedure (the Romanian court declared the petition inadmissible, which by the way begs the question, was it applying Romanian law as lex fori , or rather Italian law?), the proposed solution may be seen a little bit in the verge of overstepping the competences of the Court (who could nevertheless include it obiter). In addition, the parallelism AG Tanchev draws with EU regulations where respect for the substance of the applicable law in the State of the forum, when the latter’s law has no equivalent (substantive) concept in law, is reached through adaptation, is questionable.

Finally, still related to this part of the proposal: AG Tanchev indicates that the Romanian court should “confirm in its decision in the divorce proceedings that that condition of legal separation was fulfilled”. Fine, except for the fact that a problem remains regarding divorce: according to Italian law at least three years must have passed between the legal separation and the time at which the court was seized of the divorce petition. How is the Romanian court going to deal with this – for, obviously, no date of separation is available? (Further: it the parties agreed on the three-years period having elapsed, will their assertion be accepted ?)

 

In spite of the open questions and doubts just described, I believe this is an Opinion that will well received. Indeed, concerning the core subject matter it is not a surprising one; it is at any rate is correct in contents and rationale, and a well articulated piece of work. And – not that common in the writings of the CJEU –  one with many references to legal doctrine.

A long overdue post I fear (I hope in the next week and a half or so to turn to draft posts which for all sorts of reasons have gotten stuck in the queue, finally to be published) on Lamesa Investments Ltd v Cynergy Bank Ltd  [2019] EWHC 1877 (Comm). Latham and Watkins have had background for some time here.

The case concerns a standard clause in an English law governed contract on ‘mandatory law’ as an excuse for contractual non-performance. Here, the clause (in a (credit) facility agreement) read: clause 9.1: (party is not in breach of the agreement if) “… sums were not paid in order to comply with any mandatory provision of law, regulation or order of any court of competent jurisdiction”.

“Regulation” was defined in the Agreement as including “any regulation, rule, official directive, request or guideline … of any governmental, intergovernmental, or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation”.

Lamesa argued that Cynergy could not rely on clause 9.1 because:

• “provision of law” meant a law that applied to a UK entity, acting in the UK, that had agreed to make a sterling payment pursuant to a contract governed by English law; and
• “mandatory” meant that the relevant law made it compulsory for Cynergy to refuse payment

‘In order to comply’ was the focus of discussions, in particular whether there was any territorial limit to it. Pelling J took a flexible approach, holding that Cynery could not reasonably be expected to have excluded the only type of sanction which it could have reasonably foreseen, namely secondary sanctions imposed by US sanctions law (at the time the parties entered into the Facility Agreement, Cynergy was aware that it was possible that US sanctions would be imposed on Lamesa).

Of interest to the blog is the brief reference to Rome I (and the Convention), at 23:

‘It was submitted on behalf of CBL and I agree that English lawyers during the period the FA was being negotiated and down to the date when it became binding would have understood a mandatory law to be one that could not be derogated from. The context that makes this probable includes the meaning given to the phrase “… mandatory provision of law …” in the Rome Convention 1980 and the Rome 1 Regulation on Choice of Law. It was not submitted by CBL that the construction for which they contend applies by operation of either regulation. It submits however and I accept that they provide some support for the submission that lawyers at the relevant time would have understood the effect of the word “mandatory” to be as I have described. It goes without saying that it was not open at any stage to either party to dis-apply the US statutes that purported to apply secondary sanctions by their agreement, nor did the parties attempt to do so either in the FA itself or afterwards.’

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

Professor Susanne Lilian Gössl, Professor for Civil Law and Digitalization in Private Law, Comparative Law and Private International Law at Kiel University is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche*r Mitarbeiter*in, 50% or 25%) to work in the areas of Civil Law and Digitalization in Private Law, Comparative Law and Private International Law.

For a detailed job description (in German) see https://www.goessl.jura.uni-kiel.de/de/aktuelles or as pdf .

The general course that Catherine Kessedjian (University of Paris II – Panthéon Assas) gave at the Hague Academy of International Law in January 2019 on Neutrals in International Law – Judges, Arbitrators, Mediators, Conciliators (Le tiers impartial et indépendant en droit international, juge, arbitre, médiateur, conciliateur) has been published in the Collected courses of the Academy.

The course is written in French, but the author has provided the following English abstract:

At a time when the role of adjudicators and neutrals is criticized in domestic as well as international law, it seemed a good idea to explore the characteristics of the women and men who participate in the act of justice, and their methods of working, either as judges, arbitrators, mediators or conciliators.

The goal of the lectures was to call the students’ attention to the fact that judicial decisions are not the only way neutrals speak to the larger public and us, legal specialists. There are many other ways that are pertinent for exploration in order to better understand how justice is rendered in international law.

International law is to be understood in the broad sense as covering both public international law and private international law. Indeed the lectures were given as the general course of the inaugural winter session of the Academy entitled “international law” and conceived as a departure from the classic dichotomy still pertinent for the summer session.

The lectures, therefore, endeavor to explore the common characteristics of all neutrals and those that may be more specifics for any of the sub categories.

Among all the topics that could have been chosen to reach the goal we had set for ourselves, only a few were indeed included in the lecture i.e. : theory of law; history; the special role of mediators and of domestic judges; architecture; allegories of justice; the personality of neutrals; impartiality; jurisdiction; cooperation and more.

Finally, it is to be noted that these are the first Hague lectures reproducing images to help the discussion. In a world where images are omnipresent, we are convinced that they contribute to a better understanding of the topics and facilitate memory to concentrate on some of the more potent messages these lectures want to convey. Several testimony of that method have been reported in the lectures themselves.

Caricature created by A. Senegacnik for Ch. 14 of C. Kessedjian’s Lectures,
Reproduced with the kind permission of the artist

The full table of contents of the Lectures can be found here.

Courts in the EU increasingly issue injunctions against anti-suit injunctions, or “anti-anti-suit injunctions”. We have already read in this blog about the French practice. The Germans are doing it as well.

Facts

One example is a decision by the Court of Appeal in Munich dated 12 December 2019 (English translation here). As in the French proceedings, at issue was a claim for patent violation. And again, the defendant raised a counter-claim for fair, reasonable and non-discriminatory (FRAND) licensing in the US and applied for an anti-suit injunction against the proceedings in Europe. 

Perhaps less usual is that the defendant resorting to this tactic was a behemoth of the German industry, the company Continental, which produces everything from tyres to electronic systems for car manufacturers. Continental had been sued in Germany by Finnish company Nokia for an alleged patent violation. Continental in turn sued Nokia in the US for FRAND licensing and applied for an anti-suit injunction there to stop the German proceedings.

The reason behind this behaviour apparently is that the US courts interpret the conditions for FRAND licensing more favourably for the licensee than their European counterparts. Defendants in patent licensing disputes therefore try to shift the battlefield to the other side of the Atlantic. Even German companies now prefer Californian over Bavarian courts, and companies called “Continental” switch to different continents.

Decision

Continental’s tactic drew the ire of the Landgericht Munich I, a tribunal of first instance. It issued an injunction against the German company, enjoining it from any anti-suit application in the US against the proceedings in Germany (English translation here). The Court of Appeal (Oberlandesgericht) in Munich affirmed.

The legal rule on which Nokia’s lawyers based their claim was quite peculiar. They resorted to nothing less than the authorisation of self-defense under the German Civil Code (sec. 227 BGB). One is accustomed to the usage of this provision in cases about pub brawls or domestic violence, but less in intellectual property rights disputes between multinational companies.

The Munich Court of Appeal felt somehow uneasy with this legal basis. They stayed in more familiar terrain by weighing the interests of the parties. The court stressed Nokia’s right to pursue its patent in court (sec. 1004 BGB applied by analogy), which would be constitutionally protected and impeded by the pending US anti-suit injunction. The defendant, on the other hand, could be expected to raise the FRAND issue in the German proceedings. Hence the decision to issue the anti-anti-suit injunction.

Group of companies – A minor complication

One peculiarity of the case is that the defendant in the German proceedings, the parent company Continental AG, was not identical to the party of the counter-proceedings in the US. Instead, these had been started had been another company of the Continental group. The court had however little problems in attributing the behaviour of the subsidiary to the parent of the same “Konzern” or group of companies.

Public international law – A major problem

What is more surprising is that the Munich court had no qualms to consider its injunction as being entirely in line with customary public international law. In the past decades, European courts, especially in Germany, have complained about the extraterritorial overreach by US courts and the violation of sovereignty through anti-suit injunction. Now they are doing the same.

The tribunal of first instance had come up with an interesting justification. In its opinion, anti-suit injunctions could not be illegal under customary public international law because the Anglo-Saxon courts had issued them for years. In other words, bad practice creates bad customary law.

The Munich Court of Appeal found an even easier excuse. It simply stated that the extraterritorial effects would be a mere reflex of the anti-anti-suit injunction and not impair the sovereignty of the US. More worryingly still, it also opined that the legality under public international law hardly mattered since the injunction was in line with the German constitution. Constitutionality trumps legality under international law – a strange and dangerous concept.

Assessment 

Anti-anti-suit injunctions are a remarkable shift from the traditional European aversion against extraterritoriality and the interference with judicial proceedings abroad. Courts in Germany and in France seem to have lost both their naivety and their innocence. They now use the same weapons as their Anglo-Saxon counterparts.

The development can be summarised in terms of the Old Testament: “An eye for an eye”. As the experience of claw-back-litigation has taught, the winning country will be the one where most assets are located. German companies will thus probably never again apply for anti-suit injunctions against proceedings in Germany.

The aim of the European courts to defend their jurisdiction is certainly understandable. Yet the mutual exchange of anti-suit injunctions across the Atlantic also has costs. What stops a US court from issuing an “anti-anti-anti-suit injunction”? In the end, civil justice becomes a power play. It is long ago that public international law incarnated the polite rules of diplomacy. We seem to be back to the state of nature.

Dear editors,

the blog is currently under maintenance as it is being transferred to the new server. Because of technical difficulties, submissions are disabled while we are working on it. Sorry for the inconvenience, I am looking forward to finish the transfer as soon as possible.

Damien

The CJEU last week confirmed Saugmandsgaard ØE AG’s Opinion in C-215/18 Libuše Králová v Primera Air Scandinavia. In a package of services acquired from a travel agent, where there is no direct agreement with the airline carrying out the flight part of the package, there is a ‘contract’ between the individual and the airline within the meaning of Article 7(1) BIa. However the consumer section of BIa must be interpreted less extensively. Only the direct relationship between the travel agent and the consumer is covered by that section, not the relationship with the airline who merely carries out the transport side of the arrangement. (Note again the different balance struck by the AG and now the CJEU as opposed to e.g. the High Court in Bonnie Lackey).

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

Professor Susanne Lilian Gössl, Professor for Civil Law and Digitalization in Private Law, Comparative Law and Private International Law at Kiel University is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche*r Mitarbeiter*in, 50% or 25%) to work in the areas of Civil Law and Digitalization in Private Law, Comparative Law and Private International Law.

For a detailed job description (in German) see https://www.goessl.jura.uni-kiel.de/de/aktuelles or as pdf .

The POAM project (Protection of Abducting Mothers in Return Proceedings) is co-funded by the European Commission. It would have held an Experts’ Workshop in Milan today, but this event has of course been cancelled.

The project partners (the Universities of Aberdeen, Ludwig-Maximilians Munich, JJ Strossmayer Osijek and Milan-Bicocca) wanted to in any event share the project’s reports with the readers of this blog.

POAM explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The POAM project (Protection of Abducting Mothers in Return Proceedings) is co-funded by the European Commission. It would have held an Experts’ Workshop in Milan today, but this event has of course been cancelled.

The project partners (the Universities of Aberdeen, Ludwig-Maximilians Munich, JJ Strossmayer Osijek and Milan-Bicocca) wanted to in any event share the project’s reports with the readers of this blog.

POAM explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The author of this post is María Barral Martínez, trainee at the Court of Justice of the European Union.

On 26 March 2020, Advocate General Campos Sánchez-Bordona issued his Opinion in C-80/19, E.E. (the text of the Opinion was not available in English at the time of publishing this post).

At first glance, the case is reminiscent of case C-658/17, WB, where a request for a preliminary ruling from Poland sought clarification on the concept of “court” within the meaning of article 3(2) of the Regulation 650/2012 (“European Succession Regulation”), and which also dealt with the nature of the certificates of succession rights at national level. To a lesser extent, the case follows up on the question of competence of national authorities to issue certificates of succession, addressed by the Court in C-20/17, Oberle.

However, in E.E., the Court is faced with several questions that go a step further.

First, the referring court asks whether Lithuanian notaries meet the definition of “court” under article 3(2) of the Regulation.

Second, should this not be the case, whether Lithuanian notaries, without having to apply general rules of jurisdiction, can issue national certificates of succession and if these are deemed to be authentic instruments which have legal effects in other Member states.

Moreover, the referring court inquires, considering the present case’s factual circumstances, if the succession at stake qualifies as a succession with cross-border implications and, therefore, whether the European Succession Regulation should apply.

In addition, the referring court asks whether it could be inferred from the Regulation that the habitual residence of the deceased can only be one. Finally, certain questions were posed relating to the choice of Lithuanian law and on the choice-of-court agreement by the parties concerned.

The case

The Appellant’s mother, a Lithuanian national married to German national, moved to Germany with her son (E.E., “the Appellant”). In one of her visits to Lithuania, she had her will made by a notary located in Kaunas, designating her son as sole heir of her entire estate, which consisted of an apartment in Kaunas. After the Appellant’s mother died, he contacted the notary office in Kaunas to initiate the succession procedure, asking for a certificate of succession rights.

The notary refused to issue the certificate. She argued that, according to the European Succession Regulation, the last habitual residence of the deceased mother was in Germany. The Appellant challenged the notary’s decision before the Kaunas District Court (“District Court”), which quashed the decision of refusal and ordered the notary to open the succession procedure, and to issue a certificate of succession rights. The District Court stated that even though the Appellant’s mother had moved to Germany, she was a Lithuanian national and, on the day of her death, she owned immovable property in Lithuania. Further, she had not severed her links with that country, had kept visiting it, and set up her last will there.

The notary appealed the first instance court decision. The Kaunas Regional Court (“Regional Court”) ruled in her favour putting forward that whenever the habitual place of residence of the deceased is disputed, only a court can establish the legal fact leading to the recognition of the habitual place of residence of the deceased in her country of origin. In the present case nothing indicated that the court of first instance had addressed that issue; in deciding against the notary’s decision it had rather – and unreasonably- relied upon general principles.

E.E. lodged a cassation appeal before the Supreme Court of Lithuania, who submitted the request for preliminary ruling. Case C-658/17, WB, was pending at the time, but decided before the attribution of C-80/19 to AG Campos.

Application of the Regulation, the concept of cross-border implications and last habitual residence of the deceased

AG Campos Sánchez-Bordona starts his analysis addressing the applicability of the Regulation. In his view (in disagreement with the arguments of the referring court, in fear that applying the Regulation to the case at hand would make it harder for the sole heir to claim his rights), when a given succession presents cross-border implications, the application of the Regulation is compulsory (point 36). He highlights that the Regulation itself may provide for means to mitigate the effect of the cross-border character of a succession. Notably, under Article 22 thereof, a person may choose her national law as the law governing his succession, following which the parties concerned will be allowed to opt for a choice-of-court agreement giving the courts of the member state of the nationality of the deceased exclusive jurisdiction to rule on the succession as a whole.

The Regulation does not provide for a definition of “succession having cross-border implications”. It nevertheless portrays different examples of succession having cross-borders implications. In the light of them, AG indicates that some key elements could be the location of the estate, the heirs and legatees or the nationality of the deceased.

Further, AG looks into whether it is possible to establish the last habitual residence of a deceased in more than one state and on how could it be determined. He notes that allowing for the location of the habitual residence in more than one Member State would thwart the aim of the provisions under the Regulation (point 44). In accordance with the principle of unity of succession, legal certainty and the aim to avoid contradictory results, article 4 of the Regulation should be understood as meaning that the last habitual residence of the deceased can only be located in one Member state.

Moreover, he emphasises that the concept of habitual residence is an autonomous notion of EU Law to be primarily interpreted in the light of the objectives of the Regulation itself (point 46). The habitual residence of the deceased should reveal a close and stable connection with the Member State concerned. To determine the exact location of the habitual residence, it is necessary to carry out an overall assessment of the life of the deceased during the years preceding his death. Such assessment should be done in a case by case approach. The authority dealing with the succession should consider all evidence that would help to determine the habitual residence. For that purpose, AG points out that  the Regulation itself provides some guidance. Recitals 23 and 24 envisage two different scenarios: The first one, where factual information, especially in relation to the duration and regularity of the testator presence in a State, already reveals a close and stable connection with the state concerned. The second one features a situation where the deceased was not, on a permanent basis, in a single State. In the latter, a personal element (the nationality of the deceased) or economic factors (where the main assets of the estate are located) should weight more in the overall assessment of the circumstances relating to the life of the deceased.

In contrast, as AG puts it, mere statements of the persons with an interest in the succession are not pertinent for the ascertainment of the habitual residence of the deceased (point 50).

Lithuanian notaries and national succession certificates

Next, the Opinion deals with the question of whether Lithuanian notaries are “courts” within the meaning of article 3(2) of the Regulation. AG, based on the information provided by the referring court and the Lithuanian government during the hearing, concludes that, when issuing a national certificate of succession rights, Lithuanian notaries are not vested with the power to hear and determine disputes in matters of succession. Hence, they cannot settle contentious issues between the parties (point 81). Neither can they interpret any doubts arising from the provisions of the will, rule on its validity or execution. For that, a judicial authority is required. Therefore, following the Court’s line in WB, Lithuanian notaries do not meet the definition of “court” under article 3(2) of the Regulation. Therefore, they are not subject to the rules of jurisdiction in that instrument (points 83 and 84).

AG observes that, subject to the referring court verification, Lithuanian national succession certificates, issued by a notary at the request of one of the parties, in accordance with an official model, and following verification of the facts and statements listed therein, qualify as authentic instruments under of article 3(1)(i) of the Regulation. Hence, they shall produce evidentiary legal effects in other Member States (point 88).

Applicable law and Choice-of-court agreement

The Opinion turns then to the question whether the parties accepted the jurisdiction of the Lithuanian courts and whether Lithuanian law applies.

As AG highlights, only the deceased can choose the applicable law; the choice is limited to his/her national law according to article 22(1) of the Regulation. Moreover, it is subject to certain formal requirements laid down under article 22(2) thereof. A choice of law by the deceased which has not been explicitly made in a declaration in the form of a disposition of property must result exclusively from the terms of such a disposition. Elements such as the travel of the testator to Lithuania to grant her will before a notary, the nationality of the latter or the legal system bestowing him with the competence to draft the will, are only supportive -but not decisive- factors. Precisely because a notary was called to intervene at a time when the Regulation had already entered into force, it could be expected that the testator got legal advice as to the applicable law.

In the case at hand, the will of the deceased was drawn up before 17 August 2015. As she passed away after this date, the application of the transitional provisions under article 83 of the Regulation was called for. Article 83(4) thereof establishes a legal fiction by which “if a disposition of property was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession”. Under these circumstances, as AG indicates, there is no further need to ascertain if a valid choice of law was made by the testator under Article 83 (2) of the Regulation.

With reference to the choice-of-court agreement, AG remarks that Article 5 would allow for such an agreement only under the condition of a choice of law by the testator. In the present case the question arises whether the parties concerned would still have that option, since the national law of the testator had not been chosen but is imposed as a result of the legal fiction designed under Article 83(4). In point 113, AG indicates that the answer must be yes, ruling out a formalistic reading of the Regulation. Jurisdiction is thus granted to the authority most familiar with the applicable substantive law, in consistency with the objective set out in Recital 27 of the Regulation.

Finally, AG understands that there has been no agreement between the parties concerning the exclusive jurisdiction of Lithuanian courts to rule on the succession. Only unilateral statements and actions were made by the Appellant and the spouse of the deceased in favor of having all succession matters settled in Lithuania  In particular, the spouse consented to the jurisdiction of Lithuanian courts while expressing that he would not be a party to any proceedings. Against this background, AG concludes that article 7(c) should be read as meaning that a statement made outside the proceedings by a party concerned with the succession, by which she accepts the jurisdiction of the courts in respect of proceedings initiated by other party, amounts to an express acceptance of the jurisdiction of those courts, provided it satisfies the formal conditions required by the procedural rules of the forum (Point 123 (7)).

Written by Associate Professor Jie (Jeanne) Huang, Sydney Law School, Jeanne.huang@sydney.edu.au

If a defendant is not present in Australia, Uniform Civil Procedure Rules (“UCPR”) of New South Wales provides that service outside of Australia is permitted if the plaintiff’s claim falls within UCPR Schedule 6 or if a leave is granted under UCPR rule 11.5. If a defendant does not respond within 42 days after being served successfully (rule 11.8), the plaintiff must apply for leave to proceed (rule 11.8AA). A defendant can challenge the jurisdiction of the court and apply to set aside service (rule 12.11). The court has discretion to decide whether to assume jurisdiction (rule 11.6).

AGC Capital Securities v Jaijaifu Modern Agriculture (HK) Limited [2019] NSWSC 62, a case decided by NSW Supreme Court in 2019 provides a test to determine a plaintiff’s application for leave to proceed when no appearance by defendant. The test includes four components: 

1. Whether the defendant has been properly served;
2. Whether the claim in the originating process falls within UCPR Schedule 6;
3. Whether it be demonstrated that there is a real issue to be determined (this requirement as being that the plaintiff has an arguable case being one that would be sufficient to survive an application for summary judgment); and
4. Whether this Court is not a clearly inappropriate forum.

The same test is adopted by Yoon v Lee [2017] NSWSC 1338 and Rossiter v. Core Mining [2015] NSWSC 360.

The application for leave in AGC Capital Securities, Yoon, and Rossiter is not related to UCPR r 11.5.  r 11.5 is to determine whether a leave to serve outside of Australia should be granted. However, these three cases are cases where service outside of Australia has been completed. They are concerned with leaves under r 11.8AA, which provides:

UCPR 11.8AA   Leave to proceed where no appearance by person

(1)  If an originating process is served on a person outside Australia and the person does not enter an appearance, the party serving the document may not proceed against the person served except by leave of the court.

(2)  An application for leave under subrule (1) may be made without serving notice of the application on the person served with the originating process.

R11.8AA does not specify a test. In Australia, the leading case for leave to proceed where no appearance by defendant is Agar v Hyde [2000] HCA 41. In Agar, two rugby players at the NSW brought a personal injury claim against the International Rugby Football Board and several national representatives at the Board, alleging that the Board and its representatives own a duty of care for the plaintiffs. The defendants were served outside of Australia and applied to set aside the service. Agar holds that different tests should be adopted for the plaintiff’s application for leave to proceed where no appearance by defendant and for the defendant’s application to set aside the service.

According to Agar, the test for the plaintiff’s application for leave to proceed when no appearance by defendant should focus on the jurisdictional nexus between the plaintiff’s pleading and the forum and should not consider the merits of the case. The High Court considers:

“is the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is a cause of action arising in the State? The inquiry just described neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim.” (Agar, para 50)

The Court of Appeal required the plaintiff to establish a good arguable case. However, the High Court held that “[t]he Court of Appeal was wrong to make such an assessment in deciding whether the Rules permitted service out.” (Agar, para 51) Instead, the High Court only requires the plaintiff to establish a prima facie case, saying

“[t]he application of these paragraphs of r1A depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of PT 10 r 1A, service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed.” (Agar, para 51)

PT 10 r 1A is functionally equivalent to the current UCPR Sch 6 although their contents differ to some extent. In contrast, the test of “real issue to be determined” held in AGC Capital Securities, Yoon, and Rossiter is on the merits of the case, which is excluded by Agar.

Regarding the defendant’s application to set aside the service, Agar adopts three common grounds:

• Service is not authorized by the rules (ie, does not fall within UCPR Sch 6 and not otherwise authorised),
• The Court is an inappropriate forum,
• The claim has “insufficient prospects of the success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims.” This requires the Court to assess the strength of the claim and the test is the same for summary judgment lodged by a defendant served locally.

These grounds are not exhaustive. For example, the defendant can apply to set aside the service based on an exclusive jurisdiction clause favouring a foreign court.

However, AGC Capital Securities, Yoon, and Rossiter do not concernthe defendant’s application to set aside the service. Further, the test of “real issue to be determined” in AGC Capital Securities, Yoon, and Rossiter is not the same as the “insufficient prospects of the success” in Agar. The test of “insufficient prospects of the success” has been embedded in UCPR 11.6(2)(c), while AGC Capital Securities, Yoon, and Rossiter are not concerned with this provision. They are brought on r11.8AA.

Comparing Agar on one hand and AGC Capital Securities, Yoon, and Rossiter on the other, the latter cases consider forum non conveniens when determining the plaintiff’s application to proceed where no appearance by defendant. Is this consistent with Agar? This issue should be discussed from two aspects. First, Agar did not consider forum non conveniens under a clearly inappropriate forum doctrine because parties did not raise this issue. Therefore, it may argue that this issue was not considered by High Court in Agar. Second, Agar limits courts’ consideration to jurisdictional nexus with the forum when determining the plaintiff’s application to proceed where no appearance by defendant. Jurisdictional nexus refers to whether the service is authorized by the UCPR. However, broadly, jurisdictional nexus may cover forum non conveniens considerations.

Further, AGC Capital Securities, Yoon, and Rossiter seem to confuse the test for the plaintiff’s application for leave to proceed where no appearance by defendant with the test for the defendant’s application to set aside the service. The test of “real issue to be determined” requires the court to examine the merits of the plaintiff’s claim. This is permitted when determining the defendant’s application to set aside the service. However, when determining the plaintiff’s application for leave to proceed where no appearance by defendant, Agar says the court should not assess the strength of the plaintiff’s claim. Further, the test of “real issue to be determined” is not equivalent to the test of “insufficient prospects of the success” decided by Agar and embedded in UCPR r 11.6.

Could AGC Capital Securities, Yoon, and Rossiter be justified on policy grounds? A proposed argument is that leave to proceed involves leave, which requires an exercise of discretion; and providing leave to proceed in circumstances where there is “no real issue” would be a waste of limited court resources. However, the difficulty of this argument is that it conflates the leave to proceed with the motion for a summary judgment. If the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider the test of “no real issue” sua sponte.

Could AGC Capital Securities, Yoon, and Rossiter be distinguished from Agar? In both Yoon and Rossiter, the court issued a summary judgment for the plaintiff. In AGC Capital Securities, the court directed the plaintiff to apply for a default judgment. AGC Capital Securities, Yoon, and Rossiter are proceedings where the defendants make no appearance. However, Agar is a proceeding where the defendant applied to set aside the service. Although Agar considered the test for the plaintiff’s application to proceed where no appearance by defendant, it did so for the purpose of distinguishing this test from the test for the defendant’s application to set aside the service. Therefore, in this aspect, it may argue that AGC Capital Securities, Yoon, and Rossiter are distinguishable from Agar, because they are the cases where the plaintiff applied for both a leave and a summary judgment. Therefore, the real issue for AGC Capital Securities, Yoon, and Rossiter is that the court conflated the test for the plaintiff’s application to proceed where no appearance by defendant and the test for summary judgment.

AGC Capital Securities, Yoon, Rossiter, and Agar also bring up another question: why is the test for a plaintiff’s application for leave when no appearance by defendant and the test for a defendant’s application to set aside the service are different? Or should the tests be the same? In the plaintiff’s application for leave to proceed, is the court supposed to take care of the non-responding defendant? The answer is negative partly because the common-law court is not an inquisitorial court in civil-law countries. More important, if the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider whether there is real issue to be determined in the plaintiff’s claim.  

Written by Associate Professor Jie (Jeanne) Huang, Sydney Law School, Jeanne.huang@sydney.edu.au

If a defendant is not present in Australia, Uniform Civil Procedure Rules (“UCPR”) of New South Wales provides that service outside of Australia is permitted if the plaintiff’s claim falls within UCPR Schedule 6 or if a leave is granted under UCPR rule 11.5. If a defendant does not respond within 42 days after being served successfully (rule 11.8), the plaintiff must apply for leave to proceed (rule 11.8AA). A defendant can challenge the jurisdiction of the court and apply to set aside service (rule 12.11). The court has discretion to decide whether to assume jurisdiction (rule 11.6).

AGC Capital Securities v Jaijaifu Modern Agriculture (HK) Limited [2019] NSWSC 62, a case decided by NSW Supreme Court in 2019 provides a test to determine a plaintiff’s application for leave to proceed when no appearance by defendant. The test includes four components: 

1. Whether the defendant has been properly served;
2. Whether the claim in the originating process falls within UCPR Schedule 6;
3. Whether it be demonstrated that there is a real issue to be determined (this requirement as being that the plaintiff has an arguable case being one that would be sufficient to survive an application for summary judgment); and
4. Whether this Court is not a clearly inappropriate forum.

The same test is adopted by Yoon v Lee [2017] NSWSC 1338 and Rossiter v. Core Mining [2015] NSWSC 360.

The application for leave in AGC Capital Securities, Yoon, and Rossiter is not related to UCPR r 11.5.  r 11.5 is to determine whether a leave to serve outside of Australia should be granted. However, these three cases are cases where service outside of Australia has been completed. They are concerned with leaves under r 11.8AA, which provides:

UCPR 11.8AA   Leave to proceed where no appearance by person

(1)  If an originating process is served on a person outside Australia and the person does not enter an appearance, the party serving the document may not proceed against the person served except by leave of the court.

(2)  An application for leave under subrule (1) may be made without serving notice of the application on the person served with the originating process.

R11.8AA does not specify a test. In Australia, the leading case for leave to proceed where no appearance by defendant is Agar v Hyde [2000] HCA 41. In Agar, two rugby players at the NSW brought a personal injury claim against the International Rugby Football Board and several national representatives at the Board, alleging that the Board and its representatives own a duty of care for the plaintiffs. The defendants were served outside of Australia and applied to set aside the service. Agar holds that different tests should be adopted for the plaintiff’s application for leave to proceed where no appearance by defendant and for the defendant’s application to set aside the service.

According to Agar, the test for the plaintiff’s application for leave to proceed when no appearance by defendant should focus on the jurisdictional nexus between the plaintiff’s pleading and the forum and should not consider the merits of the case. The High Court considers:

“is the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is a cause of action arising in the State? The inquiry just described neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim.” (Agar, para 50)

The Court of Appeal required the plaintiff to establish a good arguable case. However, the High Court held that “[t]he Court of Appeal was wrong to make such an assessment in deciding whether the Rules permitted service out.” (Agar, para 51) Instead, the High Court only requires the plaintiff to establish a prima facie case, saying

“[t]he application of these paragraphs of r1A depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of PT 10 r 1A, service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed.” (Agar, para 51)

PT 10 r 1A is functionally equivalent to the current UCPR Sch 6 although their contents differ to some extent. In contrast, the test of “real issue to be determined” held in AGC Capital Securities, Yoon, and Rossiter is on the merits of the case, which is excluded by Agar.

Regarding the defendant’s application to set aside the service, Agar adopts three common grounds:

• Service is not authorized by the rules (ie, does not fall within UCPR Sch 6 and not otherwise authorised),
• The Court is an inappropriate forum,
• The claim has “insufficient prospects of the success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims.” This requires the Court to assess the strength of the claim and the test is the same for summary judgment lodged by a defendant served locally.

These grounds are not exhaustive. For example, the defendant can apply to set aside the service based on an exclusive jurisdiction clause favouring a foreign court.

However, AGC Capital Securities, Yoon, and Rossiter do not concern the defendant’s application to set aside the service. Further, the test of “real issue to be determined” in AGC Capital Securities, Yoon, and Rossiter is not the same as the “insufficient prospects of the success” in Agar. The test of “insufficient prospects of the success” has been embedded in UCPR 11.6(2)(c), while AGC Capital Securities, Yoon, and Rossiter are not concerned with this provision. They are brought on r11.8AA.

Comparing Agar on one hand and AGC Capital Securities, Yoon, and Rossiter on the other, the latter cases consider forum non conveniens when determining the plaintiff’s application to proceed where no appearance by defendant. Is this consistent with Agar? This issue should be discussed from two aspects. First, Agar did not consider forum non conveniens under a clearly inappropriate forum doctrine because parties did not raise this issue. Therefore, it may argue that this issue was not considered by High Court in Agar. Second, Agar limits courts’ consideration to jurisdictional nexus with the forum when determining the plaintiff’s application to proceed where no appearance by defendant. Jurisdictional nexus refers to whether the service is authorized by the UCPR. However, broadly, jurisdictional nexus may cover forum non conveniens considerations.

Further, AGC Capital Securities, Yoon, and Rossiter seem to confuse the test for the plaintiff’s application for leave to proceed where no appearance by defendant with the test for the defendant’s application to set aside the service. The test of “real issue to be determined” requires the court to examine the merits of the plaintiff’s claim. This is permitted when determining the defendant’s application to set aside the service. However, when determining the plaintiff’s application for leave to proceed where no appearance by defendant, Agar says the court should not assess the strength of the plaintiff’s claim. Further, the test of “real issue to be determined” is not equivalent to the test of “insufficient prospects of the success” decided by Agar and embedded in UCPR r 11.6.

Could AGC Capital Securities, Yoon, and Rossiter be justified on policy grounds? A proposed argument is that leave to proceed involves leave, which requires an exercise of discretion; and providing leave to proceed in circumstances where there is “no real issue” would be a waste of limited court resources. However, the difficulty of this argument is that it conflates the leave to proceed with the motion for a summary judgment. If the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider the test of “no real issue” sua sponte.

Could AGC Capital Securities, Yoon, and Rossiter be distinguished from Agar? In both Yoon and Rossiter, the court issued a summary judgment for the plaintiff. In AGC Capital Securities, the court directed the plaintiff to apply for a default judgment. AGC Capital Securities, Yoon, and Rossiter are proceedings where the defendants make no appearance. However, Agar is a proceeding where the defendant applied to set aside the service. Although Agar considered the test for the plaintiff’s application to proceed where no appearance by defendant, it did so for the purpose of distinguishing this test from the test for the defendant’s application to set aside the service. Therefore, in this aspect, it may argue that AGC Capital Securities, Yoon, and Rossiter are distinguishable from Agar, because they are the cases where the plaintiff applied for both a leave and a summary judgment. Therefore, the real issue for AGC Capital Securities, Yoon, and Rossiter is that the court conflated the test for the plaintiff’s application to proceed where no appearance by defendant and the test for summary judgment.

AGC Capital Securities, Yoon, Rossiter, and Agar also bring up another question: why is the test for a plaintiff’s application for leave when no appearance by defendant and the test for a defendant’s application to set aside the service are different? Or should the tests be the same? In the plaintiff’s application for leave to proceed, is the court supposed to take care of the non-responding defendant? The answer is negative partly because the common-law court is not an inquisitorial court in civil-law countries. More important, if the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider whether there is real issue to be determined in the plaintiff’s claim.  

In his Opinion delivered today, Advocate General Tanchev presents his take on Article 10 of the Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (commonly referred to as Rome III Regulation), under which ‘[w]here the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply’.

More specifically, the Opinion deals with the question lodged before the Court of Justice by a Romanian court, concerning the interpretation of the expression ‘the law applicable pursuant to Article 5 or Article 8 [the Rome III Regulation] makes no provision for divorce’.

By its question, the referring court is, in essence, asking whether Article 10 of the Rome III Regulation must be interpreted in a strict sense, meaning that the recourse to the law of the forum can be made only where the foreign law designed as applicable does not recognize any form of divorce, or more broadly – the law of the forum should be applied when the foreign law designed as applicable under the Regulation permits a divorce, but does so in ‘extremely limited circumstances involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provision’.

Even though the requests for a preliminary ruling concerning Article 10 of the Regulation were already presented in the cases C-281/15, Sahyouni and C-372/16, Sahyouni II (yet, in a different context, relating to the second limb of Article 10 – discrimination through lack of equal access to divorce), ultimately this provision has not been yet interpreted by the Court of Justice. Therefore, alongside the Opinion of AG Saugmandsgaard Øe delivered in the case C-372/16, Sahyouni II, which also addresses this provision, Opinion of AG Tanchev is certainly worthy of attention. While the very question referred to the Court did not seem to pose a particular difficulty, these are the supplementary considerations on the consequences of the proposed interpretation of Article 10 that certainly make this Opinion an interesting read.

Legal and factual context

Seized of a petition for divorce, the first instance court established the jurisdiction of the Romanian courts under Article 3(1)(b) of the Brussels II Regulation due to the common nationality of both spouses.

Since the parties seemingly had not chosen the law applicable to divorce and had been habitually resident in Italy, the first instance court considered that, pursuant to Article 8(a) of the Rome III Regulation, it is the Italian law that governs the grounds of divorce.

Yet, this court observed that, according to the Italian law, the dissolution of marriage can be pronounced only where there had been a legal separation of the spouses and at least three years have passed between this separation and the time at which the court have been seized by the applicant. It seems that in this regard the first instance court referred itself to Article 3(2)(b)of the Law No 898 of 1 December 1970 (Disciplina dei casi di scioglimento del matrimonio), mentioned in the Opinion presented by AG Bot in case C-386/17, Liberato (for multiple linguistic versions of this provision see point 20 of this Opinion).

However, the first instance court considered that since no provision is made for legal separation proceedings under Romanian law, those proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.

The applicant lodged an appeal against the decision of the first instance court. In those circumstances, the second instance court presents its request for a preliminary ruling.

Opinion of Advocate General

According to the Opinion of AG Tanchev, it is manifest that Article 10 of the Rome III Regulation calls for a strict interpretation in the sense that the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ relates only to situations in which the applicable foreign law does not recognise the institution of divorce (see, most notably, point 19 of the Opinion). In order to reach this conclusion, the Opinion delves into literal, systemic, historical and teleological interpretation of the provision in question.

At point 37, the Opinion indicates that ‘[the] Italian law, as the applicable law, does not prohibit divorce; it merely subjects it to certain requirements, which is within its competence regarding its substantive family law’. Therefore, in the present case, there is no room for Article 10 of the Rome III Regulation to apply.

Yet, as mentioned in the introduction, the analysis does not stop here. At points 59 et seq. the Opinion addresses the consequences of the advocated interpretation of Article 10.

At points 62 and 63 the Opinion argues in following terms that the national courts seized of a petition for divorce could have recourse to ‘adaptation’ (see also point 68) :

62.      First of all, pursuant to Section 1 of Chapter II of [the Brussels II bis Regulation], where the court of a Member State is seized of an application for divorce, it cannot decline jurisdiction (contrary to a court seized in the area of parental responsibility, which has discretion to address the courts of another Member State, under Article 15 of that regulation) and it is obliged to rule on that application for divorce.

63.      I agree with the view of the German Government that the Member States participating in the enhanced cooperation implemented by [the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts. Therefore, instead of considering that legal separation must first be established or ordered before the Italian courts, the Romanian courts should, to my mind, allow for such a procedure and apply, by analogy, national procedural rules relating to divorces or even adapt foreign (Italian) procedural rules relating to legal separation (in conjunction with Romanian national rules). Otherwise, the provisions of [the Rome III Regulation] would be partially ineffective.

Against this background, at points 65 and 66 the Opinion refers to the solution proposed by the Commission and favoured also by Advocate General:

65.      By way of a concrete solution in the present case, the Commission proposed that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances where the procedural law of the forum does not allow for those procedural conditions to be met. Therefore, if, in a particular case, the substantive conditions for a legal separation order are fulfilled, the forum court may remedy the fact that that court itself cannot grant such an order by waiving that foreign procedural condition.

66.      I concur. In my view, such a solution would be balanced and would correspond to the implicit intention of the Union legislature. First, it would not unduly encourage forum shopping, because it would require the substantive conditions of the applicable law to be fulfilled. The applicant would not be able to avoid those conditions by seizing another court under the very generous rules of [the Brussels II Regulation] and by asking for his or her own law to be applied (parties can avoid those conditions quite easily if they agree on the choice of the law of the forum).

On a side note…

It is although distant from the context of the present request for a preliminary ruling but nonetheless interesting to notice some points that may be inspirational in others contexts and in relation to the issues not covered by this request:

• At point 69, while expressing itself in favour of ‘adaptation’, the Opinion states ‘while [the Rome III Regulation] does not provide specifically for such an adaptation, neither does it expressly prohibit it’. In this regard, the Opinion draws inspiration from the Succession Regulation and from the twin Regulations Nos 2016/1103 and 2016/1104. It is yet to be seen whether these considerations herald the recognition of adaptation as a general (and non-codified) instrument of EU private international law and, therefore, such ‘adaptation’ could occur also in relation to, i.e., the Rome I and II Regulations.

• It is worth mentioning that it can be argued that, at points 62 and 63, the Opinion acknowledges the existence of a link between, on the one hand, the obligation to exercise jurisdiction established under the Brussels II Regulation and, on the other hand, a substantive effect that should be (at least potentially) achievable under the law designed as applicable under Rome III Regulation. It states ‘pursuant to [the Brussels II Regulation], where the court of a Member State is seized of an application for divorce, it cannot decline jurisdiction […] and it is obliged to rule on that application for divorce […]’. Then ‘[the Member States bound by the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts’. If anything, it will be interesting to follow the discussion on the implications of such interpretation of these Regulations.

• Before delving into the consequences of the proposed interpretation of Article 10 of the Rome III Regulation, at points 59 to 61, the Opinion clarifies that the considerations relating to that issue are necessary ‘in order to provide the national court with an appropriate [and useful] answer for the purpose of the application of [EU] law in the dispute before it’.
  
  Even though these considerations do not seem vital to answer the preliminary question (what makes them even more worthy of attention –  if this is the case, they do not have to be necessarily addressed in the upcoming judgment), they may also be relevant in this as well as in other contexts for a very specific reason.
  
  Before the first instance court, the applicant seeking divorce invoked Article 12 of the Rome III Regulation. The applicant claimed that the application of Italian law is manifestly incompatible with the public policy of the forum, thus making it necessary to exclude the application of the foreign law (point 15 of the Opinion).
  
  If Article 10 of the Rome III Regulation must be considered lex specialis that overrides Article 12, the fact that the former provision is not relevant in the present case could make space for the latter to apply. One could wonder – as the appellant seemingly did – whether a requirement provided for in by a foreign law could be disapplied as contravening the public policy of the forum.
  
  The Opinion seems to provide some guidance relating to that issue. In fact, it addresses the public policy exception, yet in a different context.
  
  At point 63, the Opinion provides that ‘the Member States participating in the enhanced cooperation implemented by [the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts’. At point 64 it argues that ‘the referring court cannot refuse to rule on the application in the main proceedings on the basis of Article 12 of the above regulation (which is reserved for exceptional cases) on the ground that its national law does not provide for legal separation or for procedural rules for legal separation’.
  
  Leaving aside the question whether it could be inferred from the lack of procedural scheme to pronounce legal separation that granting a divorce without the separation itself being pronounced is (or could be) contrary to the public policy of the forum (this is, of course, a distinct issue relating to the law of the forum and to the limits of the concept of public policy under the Rome III Regulation), the Opinion seems to recognize the aforementioned lex specialis relation. However, it also seeks to prevent the excessive reliance on the public policy exception with reference to a simple maladjustment of the law of the forum.

• It seems that the doubts of the referring court result from the fact that the Italian law imposes a requirement that cannot be fulfilled under the Romanian law.
  
  Indeed, on the one hand, according to the information provided by the database managed by European Judicial Network, ‘[i]n Romanian law there is no concept of ‘legal separation’ but only of ‘de facto separation’ and the judicial division of property. This is a situation that must be proven before the court. In the event of the de facto separation having lasted for at least two years, this is a reason for judicially issuing a divorce.’
  
  On the other hand, the Italian law requires a judicial separation to be declared by a judgment that has acquired the force of law or a consensual separation that has been judicially confirmed (Article 3(2)(b)of the Law No 898 of 1 December 1970 read in the light of Article 150 of the Italian Civil Code).

• At point 64, the Opinion seems to take the view that the requirement provided for in the Italian law according to which a separation has to be declared by a judgment or judicially confirmed is a ‘procedural condition’.  It will be interesting to see the evolution of case law and literature as to the classification of similar requirements in different contexts than that of Article 3(2)(b)of the Law No 898 of 1 December 1970 read in the light of Article 150 of the Italian Civil Code.
  
  The question remains open whether such other requirements are also of procedural nature (or, alternatively, even though it might ultimately boil down to the question of terminology: of formal nature or of substantive nature, yet they can be fulfilled only via the procedural framework of the State that imposes them and of the other States that provide for a judicially-pronounced separation, if one takes into account the recognition of a judgment on separation within the divorce proceedings) and, if they are truly of procedural nature, do they fall within the scope of the law designed as applicable under the Rome III Regulation.

In his Opinion delivered today, Advocate General Tanchev presents his take on Article 10 of the Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (commonly referred to as Rome III Regulation), under which ‘[w]here the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply’.

More specifically, the Opinion deals with the question lodged before the Court of Justice by a Romanian court, concerning the interpretation of the expression ‘the law applicable pursuant to Article 5 or Article 8 [the Rome III Regulation] makes no provision for divorce’.

By its question, the referring court is, in essence, asking whether Article 10 of the Rome III Regulation must be interpreted in a strict sense, meaning that the recourse to the law of the forum can be made only where the foreign law designed as applicable does not recognize any form of divorce, or more broadly – the law of the forum should be applied when the foreign law designed as applicable under the Regulation permits a divorce, but does so in ‘extremely limited circumstances involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provision’.

Even though the requests for a preliminary ruling concerning Article 10 of the Regulation were already presented in the cases C-281/15, Sahyouni and C-372/16, Sahyouni II (yet, in a different context, relating to the second limb of Article 10 – discrimination through lack of equal access to divorce), ultimately this provision has not been yet interpreted by the Court of Justice. Therefore, alongside the Opinion of AG Saugmandsgaard Øe delivered in the case C-372/16, Sahyouni II, which also addresses this provision, Opinion of AG Tanchev is certainly worthy of attention. While the very question referred to the Court did not seem to pose a particular difficulty, these are the supplementary considerations on the consequences of the proposed interpretation of Article 10 that certainly make this Opinion an interesting read.

Legal and factual context

Seized of a petition for divorce, the first instance court established the jurisdiction of the Romanian courts under Article 3(1)(b) of the Brussels II Regulation due to the common nationality of both spouses.

Since the parties seemingly had not chosen the law applicable to divorce and had been habitually resident in Italy, the first instance court considered that, pursuant to Article 8(a) of the Rome III Regulation, it is the Italian law that governs the grounds of divorce.

Yet, this court observed that, according to the Italian law, the dissolution of marriage can be pronounced only where there had been a legal separation of the spouses and at least three years have passed between this separation and the time at which the court have been seized by the applicant. It seems that in this regard the first instance court referred itself to Article 3(2)(b)of the Law No 898 of 1 December 1970 (Disciplina dei casi di scioglimento del matrimonio), mentioned in the Opinion presented by AG Bot in case C-386/17, Liberato (for multiple linguistic versions of this provision see point 20 of this Opinion).

However, the first instance court considered that since no provision is made for legal separation proceedings under Romanian law, those proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.

The applicant lodged an appeal against the decision of the first instance court. In those circumstances, the second instance court presents its request for a preliminary ruling.

Opinion of Advocate General

According to the Opinion of AG Tanchev, it is manifest that Article 10 of the Rome III Regulation calls for a strict interpretation in the sense that the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ relates only to situations in which the applicable foreign law does not recognise the institution of divorce (see, most notably, point 19 of the Opinion). In order to reach this conclusion, the Opinion delves into literal, systemic, historical and teleological interpretation of the provision in question.

At point 37, the Opinion indicates that ‘[the] Italian law, as the applicable law, does not prohibit divorce; it merely subjects it to certain requirements, which is within its competence regarding its substantive family law’. Therefore, in the present case, there is no room for Article 10 of the Rome III Regulation to apply.

Yet, as mentioned in the introduction, the analysis does not stop here. At points 59 et seq. the Opinion addresses the consequences of the advocated interpretation of Article 10.

At points 62 and 63 the Opinion argues in following terms that the national courts seized of a petition for divorce could have recourse to ‘adaptation’ (see also point 68) :

62.      First of all, pursuant to Section 1 of Chapter II of [the Brussels II bis Regulation], where the court of a Member State is seized of an application for divorce, it cannot decline jurisdiction (contrary to a court seized in the area of parental responsibility, which has discretion to address the courts of another Member State, under Article 15 of that regulation) and it is obliged to rule on that application for divorce.

63.      I agree with the view of the German Government that the Member States participating in the enhanced cooperation implemented by [the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts. Therefore, instead of considering that legal separation must first be established or ordered before the Italian courts, the Romanian courts should, to my mind, allow for such a procedure and apply, by analogy, national procedural rules relating to divorces or even adapt foreign (Italian) procedural rules relating to legal separation (in conjunction with Romanian national rules). Otherwise, the provisions of [the Rome III Regulation] would be partially ineffective.

Against this background, at points 65 and 66 the Opinion refers to the solution proposed by the Commission and favoured also by Advocate General:

65.      By way of a concrete solution in the present case, the Commission proposed that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances where the procedural law of the forum does not allow for those procedural conditions to be met. Therefore, if, in a particular case, the substantive conditions for a legal separation order are fulfilled, the forum court may remedy the fact that that court itself cannot grant such an order by waiving that foreign procedural condition.

66.      I concur. In my view, such a solution would be balanced and would correspond to the implicit intention of the Union legislature. First, it would not unduly encourage forum shopping, because it would require the substantive conditions of the applicable law to be fulfilled. The applicant would not be able to avoid those conditions by seizing another court under the very generous rules of [the Brussels II Regulation] and by asking for his or her own law to be applied (parties can avoid those conditions quite easily if they agree on the choice of the law of the forum).

On a side note…

It is although distant from the context of the present request for a preliminary ruling but nonetheless interesting to notice some points that may be inspirational in others contexts and in relation to the issues not covered by this request:

• At point 69, while expressing itself in favour of ‘adaptation’, the Opinion states ‘while [the Rome III Regulation] does not provide specifically for such an adaptation, neither does it expressly prohibit it’. In this regard, the Opinion draws inspiration from the Succession Regulation and from the twin Regulations Nos 2016/1103 and 2016/1104. It is yet to be seen whether these considerations herald the recognition of adaptation as a general (and non-codified) instrument of EU private international law and, therefore, such ‘adaptation’ could occur also in relation to, i.e., the Rome I and II Regulations.
• It is worth mentioning that it can be argued that, at points 62 and 63, the Opinion acknowledges the existence of a link between, on the one hand, the obligation to exercise jurisdiction established under the Brussels II Regulation and, on the other hand, a substantive effect that should be (at least potentially) achievable under the law designed as applicable under Rome III Regulation. It states ‘pursuant to [the Brussels II Regulation], where the court of a Member State is seized of an application for divorce, it cannot decline jurisdiction […] and it is obliged to rule on that application for divorce […]’. Then ‘[the Member States bound by the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts’. If anything, it will be interesting to follow the discussion on the implications of such interpretation of these Regulations.
• Before delving into the consequences of the proposed interpretation of Article 10 of the Rome III Regulation, at points 59 to 61, the Opinion clarifies that the considerations relating to that issue are necessary ‘in order to provide the national court with an appropriate [and useful] answer for the purpose of the application of [EU] law in the dispute before it’.

  Even though these considerations do not seem vital to answer the preliminary question (what makes them even more worthy of attention –  if this is the case, they do not have to be necessarily addressed in the upcoming judgment), they may also be relevant in this as well as in other contexts for a very specific reason.

  Before the first instance court, the applicant seeking divorce invoked Article 12 of the Rome III Regulation. The applicant claimed that the application of Italian law is manifestly incompatible with the public policy of the forum, thus making it necessary to exclude the application of the foreign law (point 15 of the Opinion).

  If Article 10 of the Rome III Regulation must be considered lex specialis that overrides Article 12, the fact that the former provision is not relevant in the present case could make space for the latter to apply. One could wonder – as the appellant seemingly did – whether a requirement provided for in by a foreign law could be disapplied as contravening the public policy of the forum.

  The Opinion seems to provide some guidance relating to that issue. In fact, it addresses the public policy exception, yet in a different context.

  At point 63, the Opinion provides that ‘the Member States participating in the enhanced cooperation implemented by [the Rome III Regulation] must ensure that both divorce and legal separation may be granted by their courts’. At point 64 it argues that ‘the referring court cannot refuse to rule on the application in the main proceedings on the basis of Article 12 of the above regulation (which is reserved for exceptional cases) on the ground that its national law does not provide for legal separation or for procedural rules for legal separation’.

  Leaving aside the question whether it could be inferred from the lack of procedural scheme to pronounce legal separation that granting a divorce without the separation itself being pronounced is (or could be) contrary to the public policy of the forum (this is, of course, a distinct issue relating to the law of the forum and to the limits of the concept of public policy under the Rome III Regulation), the Opinion seems to recognize the aforementioned lex specialis relation. However, it also seeks to prevent the excessive reliance on the public policy exception with reference to a simple maladjustment of the law of the forum.

• It seems that the doubts of the referring court result from the fact that the Italian law imposes a requirement that cannot be fulfilled under the Romanian law.

  Indeed, on the one hand, according to the information provided by the database managed by European Judicial Network, ‘[i]n Romanian law there is no concept of ‘legal separation’ but only of ‘de facto separation’ and the judicial division of property. This is a situation that must be proven before the court. In the event of the de facto separation having lasted for at least two years, this is a reason for judicially issuing a divorce.’

  On the other hand, the Italian law requires a judicial separation to be declared by a judgment that has acquired the force of law or a consensual separation that has been judicially confirmed (Article 3(2)(b)of the Law No 898 of 1 December 1970 read in the light of Article 150 of the Italian Civil Code).

• At point 64, the Opinion seems to take the view that the requirement provided for in the Italian law according to which a separation has to be declared by a judgment or judicially confirmed is a ‘procedural condition’.  It will be interesting to see the evolution of case law and literature as to the classification of similar requirements in different contexts than that of Article 3(2)(b)of the Law No 898 of 1 December 1970 read in the light of Article 150 of the Italian Civil Code.

  The question remains open whether such other requirements are also of procedural nature (or, alternatively, even though it might ultimately boil down to the question of terminology: of formal nature or of substantive nature, yet they can be fulfilled only via the procedural framework of the State that imposes them and of the other States that provide for a judicially-pronounced separation, if one takes into account the recognition of a judgment on separation within the divorce proceedings) and, if they are truly of procedural nature, do they fall within the scope of the law designed as applicable under the Rome III Regulation.

 

If a defendant is not present in Australia, Uniform Civil Procedure Rules (“UCPR”) of New South Wales provides that service outside of Australia is permitted if the plaintiff’s claim falls within UCPR Schedule 6 or if a leave is granted under UCPR rule 11.5. If a defendant does not respond within 42 days after being served successfully (rule 11.8), the plaintiff must apply for leave to proceed (rule 11.8AA). A defendant can challenge the jurisdiction of the court and apply to set aside service (rule 12.11). The court has discretion to decide whether to assume jurisdiction (rule 11.6).

AGC Capital Securities v Jaijaifu Modern Agriculture (HK) Limited [2019] NSWSC 62, a case decided by NSW Supreme Court in 2019 provides a test to determine a plaintiff’s application for leave to proceed when no appearance by defendant. The test includes four components:

1.      Whether the defendant has been properly served;

2.      Whether the claim in the originating process falls within UCPR Schedule 6;

3.      Whether it be demonstrated that there is a real issue to be determined (this requirement as being that the plaintiff has an arguable case being one that would be sufficient to survive an application for summary judgment); and

4.      Whether this Court is not a clearly inappropriate forum.

The same test is adopted by Yoon v Lee [2017] NSWSC 1338 and Rossiter v. Core Mining [2015] NSWSC 360.

The application for leave in AGC Capital Securities, Yoon, and Rossiter is not related to UCPR r 11.5.  r 11.5 is to determine whether a leave to serve outside of Australia should be granted. However, these three cases are cases where service outside of Australia has been completed. They are concerned with leaves under r 11.8AA, which provides:

UCPR 11.8AA   Leave to proceed where no appearance by person

(1)  If an originating process is served on a person outside Australia and the person does not enter an appearance, the party serving the document may not proceed against the person served except by leave of the court.

(2)  An application for leave under subrule (1) may be made without serving notice of the application on the person served with the originating process.

R11.8AA does not specify a test. In Australia, the leading case for leave to proceed where no appearance by defendant is Agar v Hyde [2000] HCA 41. In Agar, two rugby players at the NSW brought a personal injury claim against the International Rugby Football Board and several national representatives at the Board, alleging that the Board and its representatives own a duty of care for the plaintiffs. The defendants were served outside of Australia and applied to set aside the service. Agar holds that different tests should be adopted for the plaintiff’s application for leave to proceed where no appearance by defendant and for the defendant’s application to set aside the service.

According to Agar, the test for the plaintiff’s application for leave to proceed when no appearance by defendant should focus on the jurisdictional nexus between the plaintiff’s pleading and the forum and should not consider the merits of the case. The High Court considers:

“is the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is a cause of action arising in the State? The inquiry just described neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim.” (Agar, para 50)

The Court of Appeal required the plaintiff to establish a good arguable case. However, the High Court held that “[t]he Court of Appeal was wrong to make such an assessment in deciding whether the Rules permitted service out.” (Agar, para 51) Instead, the High Court only requires the plaintiff to establish a prima facie case, saying

“[t]he application of these paragraphs of r1A depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of PT 10 r 1A, service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed.” (Agar, para 51)

PT 10 r 1A is functionally equivalent to the current UCPR Sch 6 although their contents differ to some extent. In contrast, the test of “real issue to be determined” held in AGC Capital Securities, Yoon, and Rossiter is on the merits of the case, which is excluded by Agar.

Regarding the defendant’s application to set aside the service, Agar adopts three common grounds:

• Service is not authorized by the rules (ie, does not fall within UCPR Sch 6 and not otherwise authorised),
• The Court is an inappropriate forum,
• The claim has “insufficient prospects of the success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims.” This requires the Court to assess the strength of the claim and the test is the same for summary judgment lodged by a defendant served locally.

These grounds are not exhaustive. For example, the defendant can apply to set aside the service based on an exclusive jurisdiction clause favouring a foreign court.

However, AGC Capital Securities, Yoon, and Rossiter do not concern the defendant’s application to set aside the service. Further, the test of “real issue to be determined” in AGC Capital Securities, Yoon, and Rossiter is not the same as the “insufficient prospects of the success” in Agar. The test of “insufficient prospects of the success” has been embedded in UCPR 11.6(2)(c), while AGC Capital Securities, Yoon, and Rossiter are not concerned with this provision. They are brought on r11.8AA.

Comparing Agar on one hand and AGC Capital Securities, Yoon, and Rossiter on the other, the latter cases consider forum non conveniens when determining the plaintiff’s application to proceed where no appearance by defendant. Is this consistent with Agar? This issue should be discussed from two aspects. First, Agar did not consider forum non conveniens under a clearly inappropriate forum doctrine because parties did not raise this issue. Therefore, it may argue that this issue was not considered by High Court in Agar. Second, Agar limits courts’ consideration to jurisdictional nexus with the forum when determining the plaintiff’s application to proceed where no appearance by defendant. Jurisdictional nexus refers to whether the service is authorized by the UCPR. However, broadly, jurisdictional nexus may cover forum non conveniens considerations.

Further, AGC Capital Securities, Yoon, and Rossiter seem to confuse the test for the plaintiff’s application for leave to proceed where no appearance by defendant with the test for the defendant’s application to set aside the service. The test of “real issue to be determined” requires the court to examine the merits of the plaintiff’s claim. This is permitted when determining the defendant’s application to set aside the service. However, when determining the plaintiff’s application for leave to proceed where no appearance by defendant, Agar says the court should not assess the strength of the plaintiff’s claim. Further, the test of “real issue to be determined” is not equivalent to the test of “insufficient prospects of the success” decided by Agar and embedded in UCPR r 11.6.

Could AGC Capital Securities, Yoon, and Rossiter be justified on policy grounds? A proposed argument is that leave to proceed involves leave, which requires an exercise of discretion; and providing leave to proceed in circumstances where there is “no real issue” would be a waste of limited court resources. However, the difficulty of this argument is that it conflates the leave to proceed with the motion for a summary judgment. If the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider the test of “no real issue” sua sponte.

Could AGC Capital Securities, Yoon, and Rossiter be distinguished from Agar? In both Yoon and Rossiter, the court issued a summary judgment for the plaintiff. In AGC Capital Securities, the court directed the plaintiff to apply for a default judgment. AGC Capital Securities, Yoon, and Rossiter are proceedings where the defendants make no appearance. However, Agar is a proceeding where the defendant applied to set aside the service. Although Agar considered the test for the plaintiff’s application to proceed where no appearance by defendant, it did so for the purpose of distinguishing this test from the test for the defendant’s application to set aside the service. Therefore, in this aspect, it may argue that AGC Capital Securities, Yoon, and Rossiter are distinguishable from Agar, because they are the cases where the plaintiff applied for both a leave and a summary judgment. Therefore, the real issue for AGC Capital Securities, Yoon, and Rossiter is that the court conflated the test for the plaintiff’s application to proceed where no appearance by defendant and the test for summary judgment.

AGC Capital Securities, Yoon, Rossiter, and Agar also bring up another question: why is the test for a plaintiff’s application for leave when no appearance by defendant and the test for a defendant’s application to set aside the service are different? Or should the tests be the same? In the plaintiff’s application for leave to proceed, is the court supposed to take care of the non-responding defendant? The answer is negative partly because the common-law court is not an inquisitorial court in civil-law countries. More important, if the plaintiff only asks a leave to proceed without applying for a summary judgment, there is no ground for the court to consider whether there is real issue to be determined in the plaintiff’s claim.

On 26 July 2019, the Greek Supreme Court gave a ruling involving the interpretation of the Brussels II bis Regulation in a matter of parental responsibility (Ruling No 927 of 2019).

The facts

A. and B., of Greek and German nationality, respectively, an unmarried couple, had two children. They all lived in Greece.

The mother, B., seised the Court of First Instance of Rhodes seeking the exclusive custody of the children as well as an interim measure to the same effect. In the resulting summary proceedings, A., the father, declared that he would not object, as long as the court ordered that the children keep their habitual residence in Rhodes. B. stated that she did not intend to relocate the children.

The Court provisionally granted exclusive custody to B., without issuing any order regarding the habitual residence of the children. A hearing on the merits was scheduled to take place a few months later.

Shortly after the above prrovisional order was issued, B. informed A. that she planned to spend Christmas with the children at her parents’ house in Germany.

A. formally notified B. that he disagreed. Nevertheless, B. travelled to Germany with the children. Although she had bought return tickets, she eventually decided to stay in Germany with the children.

As a reaction, A. sought the revocation of the provisional measures on custody, as well as the return of the children to Greece and an order granting him exclusive custody rights. A.’s efforts were initially successful. The provisional measures were revoked, and custody was provisionally granted to him.

B., however, challenged the jurisdiction of the Greek courts over A.’s action for custody.

The Rhodes Court of First Instance considered the challenge to be founded and accordingly declined jurisdiction. A.’s appeal against this decision was dismissed by the Dodecanese Court of Appeal.

The Supreme Court’s ruling

The case reached the Supreme Court. The latter began by considering Article 8 of the Brussels II bis Regulation, whereby, as a general rule, jurisdiction over matters of parental responsibility lies with the courts of the Member State where the child habitually resides. The Supreme Court held that relocation while proceedings are pending does not affect the jurisdiction of the court seised.

The Supreme Court agreed with the Court of Appeal that the practical difficulties that relocation may entail in particular for the parent not exercising custody rights have no bearing as such on the issue of jurisdiction, which depends solely on the habitual residence of the children at the time the court is seised. Thus, once the habitual residence of a child has been transferred from one Member State to another, the courts of the latter State come to have jurisdiction, unless the transfer amounts to a wrongful removal or retention, as defined in Article 2(11) of the Regulation.

Based on the foregoing, the Supreme Court confirmed the ruling of the Court of Appeal. Specifically, it held that when A. filed his action (in February 2015), the children were already habitually resident in Germany. Actually, the names of the children had been entered in the register of the population of the town of Kevelaer in February 2014; they benefited from a health insurance there since April 2014; they attended a kindergarten there; they had developed strong relations with B.’s relatives living nearby. The Court also noted that the children, who were also German nationals, spoke German, whereas they barely spoke any Greek.

The Supreme Court held that no wrongful removal had taken place in the circumstances, stressing that, at the time when the transfer took place, B. had temporary exclusive custody rights. Against this backdrop, relocation was lawful, and A. should have rather pursued a re-arrangement of his contact rights with the children.

The statement made by B. in the course of the summary proceedings that she did not intend to relocate the children was not considered to be decisive. Given that B. had exclusive custody rights over children, she was entitled, pursuant to Article 2(9) of the Regulation, to determine the children’s place of residence.

With respect to Article 10, on jurisdiction in case of child abduction, the Supreme Court found that no wrongful retention had taken place after the revocation of the provisional measure, which granted A. exclusive custody rights. The Court noted that A. had not sought to have the new provisional measures recognised and enforced in Germany, and held that A.’s assertion that the latter measures are enforceable without any procedure being required is erroneous. The revocation of a provisional measure, the Court held, is not a judgment for the purposes of Article 11(8) of the Brussels II bis Regulation. Actually, at that time, the children had already an established place of residence in Germany.

The final line of defence for A. was Article 12(3) of the Brussels II bis Regulation. This provides that the courts of a Member State have jurisdiction over parental responsibility in proceedings unrelated to a matrimonial matter where: (a) the child has a substantial connection with that Member State, namely by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State, (b) their jurisdiction ‘has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child’.

In particular, A. argued that B. had implicitly accepted the jurisdiction of Greek courts by initially filing an action before the Court of First Instance of Rhodes.

The Supreme Court dismissed the argument. First, it stated that, by filing her initial petition, B. could not be deemed to have tacitly accepted the jurisdiction of Greek courts for any ensuing proceedings. Secondly, the Court noted that the initial action had been brought prior to the relocation of B. and the children in Germany, adding that B. had then asked for her action in Greece to be discontinued. Finally, the Court observed that no tacit acceptance could be deemed to exist, since B. expressly challenged the jurisdiction of Greek courts as a result of A.’s action.

In Bournemouth, Christchurch and Poole Council v KC et al [2020] EWFC 20, Dancey J at  62 ff is the first UK judge to my knowledge to discuss the implications of the UK’s separation from the EU’s civil procedure /justice and home affairs agenda, particularly in the transition period. It includes a discussion of the UK’s Brexit (EU Exit) Regulations 2019/2003, reg 3, and the European Commission notice on transition provisions.

The care proceedings concern W, a girl aged 9, nearly 10. W’s parents, who were married, are Polish nationals and W was born there. Following the separation of the parents in Poland in April 2016, contested contact proceedings there resulted in an order providing that W live with the mother with contact to the father. The father’s parental responsibility was limited to decisions about medical treatment and education. Following the breakdown of the father’s contact with W, the mother brought her to the UK in June 2018 where they have remained since. That was done without the father’s agreement, although he was aware the mother planned to relocate and acquiesced once the move had taken place. The mother did not tell the father of her and W’s location within the UK.

The legal framework therefore is Brussels IIa, Regulation 2201/2003. Dancey J at 63 concedes that by reg 8 of 2019/2003, dealing with saving/transitional provisions, the UK’s revocation from Brussels IIa does not apply to proceedings before a court in a Member State seised before 31 December 2020. However he then refers to the EC Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law: 18/1/2019, and suggests it means that EU rules on recognition and enforcement will not apply to a UK judgment, even if the judgment was given, or enforcement proceedings started, before 1 January 2021 unless the judgment has been exequatured (declared enforceable by the courts of the Member State where recognition or enforcement is required) before 1 January 2021. Support for his opinion is found I suspect mostly in Heading 2.2 of that Notice.

At 66 Dancey J suggests in practice the consequence should not be too dramatic in the case at issue for ‘one or other of the parents should apply promptly in Poland for a declaration recognising this judgment and the order that will follow (exequaturing the judgment).’ That absence of real delay in the case at issue may well be true (it is confirmed by a letter from the Polish consulate) however the  implications are already clear and no surprise. Enforcement of UK judgments will be a lot less smooth post Brexit.

Geert.

Bru IIA Regulation
Incl 1st (?)) application of Jurisdiction, Judgments (Family) part of the #Brexit (EU Exit) Regulations 2019/2003, reg 3.
EC notice on transition provisions
Exequatur needed even if judgment was given, or enforcement proceedings started, before 1 January 2021. https://t.co/Ve8MKYzMdd

— Geert Van Calster (@GAVClaw) March 20, 2020

The European Law Institute‘s (ELI) members on 21 March 2020 approved the Report on the Protection of Adults in International Situations.

This report is the outcome of the work of a team of academics and professionals chaired by Pietro Franzina and Richard Frimston. It sets out the current legal framework on the protection of persons above 18 years old who are not in a position to protect their own insterests (due to an impairment or incapacity).

The Report acknowledges the importance in this field of the Hague Convention of 13 January 2000 on the International Protection of Adults and encourages further ratification of it. The Convention has been ratified by only nine EU Member States (and signed by an additional seven).

After investigating the institutional possiblities of EU action on this topic, the Report also calls for action, both legislative and non-legislative, to complement the Convention. Possible measures include providing a (limited) choice of juridisdiction and securing the effective circulation of private mandates.